Githa Hariharan v. Reserve Bank of India (1999)

This is the case in which a mother's equality was won by reading a word, and it belongs to Unit 1 for three reasons. It is a direct challenge under Arts. 14 and 15 to a statutory preference for the father. It applies CEDAW to the construction of an Indian statute, which is the treaty limb of this unit at work. And it shows the technique the Court prefers where a provision can be saved: construe it to keep it within constitutional limits rather than strike it down.

It is also the standard illustration, in the personal-law discrimination answer, of how the law subordinated the mother without ever saying so in terms.

Two writ petitions were heard together.

In the first, a writer and her husband, a medical scientist, jointly applied to the Reserve Bank of India on 10 December 1984 for relief bonds worth Rs 20,000 in the name of their minor son, stating expressly that they both agreed that the mother would act as the guardian of the minor for the purpose of investments made with the money held by him; she signed the application form as guardian. The Bank replied that they must produce either an application signed by the father or a certificate of guardianship from a competent authority in favour of the mother, its position being that under s. 6(a) the father of a Hindu minor is the only natural guardian.

In the second, a wife whose husband had begun divorce proceedings and sought custody of their minor son complained that he was repeatedly writing to her and to the boy's school asserting that he alone was the natural guardian and that no decision should be taken without his permission.

Both petitions asked that s. 6(a) of the 1956 Act and s. 19(b) of the 1890 Act be struck down as violating Arts. 14 and 15, the contention being that the mother is relegated to an inferior position on the ground of sex alone, her right as natural guardian being made cognisable only after the father.

1. The definitions of guardian and natural guardian make no discrimination against the mother, who is undoubtedly a natural guardian; the only provision open to exception is the phrase in s. 6(a), "the father, and after him, the mother".

1. The word after need not mean after the lifetime of the father. In the context of s. 6(a) it means in the absence of — the father's absence from the care of the minor's person or property for any reason whatever.

1. Accordingly, where the father is not in actual charge of the minor's affairs, whether because of his indifference, or because of an agreement between him and the mother, oral or written, the minor being in the exclusive care and custody of the mother, or because he is unable to take care of the minor through physical or mental incapacity, the mother can act as natural guardian, and all her actions are valid even during the father's lifetime, the father being deemed absent for the purposes of s. 6(a) and s. 19(b).

1. The Reserve Bank was therefore not right to insist on an application signed by the father or an order of court, particularly where the parents had jointly recorded their agreement; it ought to accept the mother's application. Section 19(b) of the Guardians and Wards Act must be construed in the same way.

The provisions were thus upheld as construed, and not struck down.

1. Ask what the section would mean on the narrow reading. If after meant only after the lifetime, the mother would be a guardian only on the father's death — a provision enacted six years after the Constitution would then have relegated a mother to an inferior position on the ground of sex alone.

1. Prefer the construction that keeps the statute within constitutional limits. A narrow, pedantic interpretation running counter to the constitutional mandate is to be avoided; normal rules of interpretation give way to the requirement of the constitutional guarantee, since any other reading would render the statute void.

1. Anchor the reading in the Act's own scheme and in welfare. Both parents are duty-bound to take care of the person and property of their minor child and to act in the best interest of his welfare; the welfare of the minor in the widest sense is the paramount consideration. Reading s. 4 and s. 6 harmoniously produces the result without doing violence to the language.

1. Use the treaty. The message of CEDAW and of the Beijing Declaration, directing States to take appropriate measures to prevent discrimination against women in all forms, is clear; India is a signatory to CEDAW, having accepted and ratified it in June 1993, and the interpretation placed on s. 6(a) gives effect to the principles those instruments contain. Domestic courts are under an obligation to give due regard to international conventions and norms in construing domestic law where there is no inconsistency between them.

It opens the guardianship head, and it is the best short illustration on this paper of Arts. 14 and 15 operating on a personal-law statute. Use it with Vishaka on the international-instruments question: Vishaka reads a convention into the fundamental rights where there is no domestic law; Githa Hariharan uses the same convention to choose between two possible readings of a domestic statute that exists.

It disposes of the proposition that the father is the sole natural guardian during his lifetime, and with it the practice of banks, schools and registering authorities of refusing to deal with a mother.

It does not decide that the mother and the father are placed on an identical statutory footing: the preference in the words of s. 6(a) remains, and what the case supplies is a construction of after wide enough to neutralise it in practice. Nor does it decide custody in any particular case, which continues to be governed by the welfare of the minor as the paramount consideration. The Court was also conscious that transactions had previously been invalidated on the footing that a mother is not a natural guardian while the father is alive.