GITHA HARIHARAN V.

RESERVE BANK OF INDIA

The Githa Hariharan v. Reserve Bank of India1 case introduced a progressive interpretation of
guardianship laws by emphasising a harmonious construction of Section 6 of the Hindu Minority and
Guardianship Act, 1956, with the constitutional principle of equality. It underscored that both parents
have an equal responsibility in providing a safe and nurturing environment for their children. The
court highlighted that the role of the mother should not be seen as secondary to that of the father in
matters of guardianship. Section 6, which designates the father as the natural guardian of a minor and
the mother only after him, was interpreted in a way that aligns with gender equality, ensuring that
mothers are not relegated to a subordinate status, thereby upholding constitutional principles.

Gender equality is a cornerstone of constitutional law, and interpreting the term “after” in Section 6
of the Hindu Minority and Guardianship Act, 1956, as disqualifying the mother from being a natural
guardian during the father’s lifetime is inconsistent with this principle. The notion that the father, as a
dominant figure, should have preferential rights over the mother undermines the equality guaranteed
by the Constitution.

The Supreme Court clarified that the term "after" should not be narrowly construed to mean "after the
father’s death." Instead, it should be interpreted more broadly to include situations where the father is
unavailable, whether due to temporary absence, incapacity, or neglect. In such cases, the mother is
recognized as the natural guardian, ensuring the child's best interests are prioritized and promoting a
more equitable understanding of parental responsibilities.

SUMMARY OF THE CASE

The landmark case of Githa Hariharan v. Reserve Bank of India redefined guardianship under the
Hindu Minority and Guardianship Act, 1956, by acknowledging a mother's right to be recognized as a
natural guardian. This ruling challenged the traditional prioritization of the father’s role, emphasizing
the child's welfare and gender equality. Githa Hariharan, the petitioner, applied to the RBI for relief
bonds in her son Rishab's name, listing herself as his natural guardian. The RBI rejected her
application, citing the need for the father's consent. She challenged Section 6(a) of the Hindu Minority
and Guardianship Act and Section 19(b) of the Guardians and Wards Act as violating Articles 14 and
15 of the Constitution, arguing these provisions discriminated against mothers.

1
2 SCC 228 (1999)
 The Supreme Court interpreted "after" in Section 6(a) to include situations where the father is absent
or apathetic, thus allowing mothers to act as natural guardians in such cases. The Court instructed the
RBI to revise its procedures and emphasized the paramount importance of the child's welfare in
custody decisions. This judgment revolutionized the understanding of guardianship, affirming equality
and the shared responsibility of both parents in ensuring their child's well-being.

BACKGROUND OF THE CASE

The case of Githa Hariharan v. Reserve Bank of India revolves around a significant legal challenge to
the interpretation of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMGA),
2
which traditionally recognized the father as the natural guardian of a Hindu minor child, with the
mother being the guardian "after" the father. The dispute arose when Githa Hariharan, a woman who
had been married and had a son, applied to the Reserve Bank of India (RBI) for bonds to be held in
her son's name, designating herself as the natural guardian. However, the RBI rejected her application,
stating that according to the provisions of Section 6(a), the father was the natural guardian, and the
mother could only assume this role "after" the father.

This legal interpretation created a situation where the father's role as a guardian was considered
superior and primary, relegating the mother's guardianship to a secondary, post-father role. The RBI's
decision, based on this interpretation of the law, effectively excluded the mother's ability to act as the
natural guardian of her son without her husband’s consent.

Ms. Hariharan challenged the constitutional validity of Section 6(a), arguing that it violated the
fundamental rights guaranteed by Articles 14 (Right to Equality) and 15 (Prohibition of
Discrimination) of the Indian Constitution. She contended that the provision discriminated against

2
Hindu Minority and Guardianship Act, No. 32 of 1956, § 6(a) (India).
women by implying that the father's role as a guardian was paramount, even when the father was
absent or unwilling to care for the child.

The case was significant because it addressed the issue of gender equality in the context of parental
rights and guardianship. The petitioner argued that the law, as written, did not consider the welfare of
the child—which should be the primary concern—and could lead to situations where the mother, who
might be the more capable and willing guardian, was disregarded simply because of her gender.

The case reached the Supreme Court of India, where the Court reviewed the legal provisions in light
of gender equality principles found in the Indian Constitution, as well as international conventions
such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
and the Universal Declaration of Human Rights (UDHR). In its ruling, the Court rejected the narrow
interpretation of the term "after" in Section 6(a), broadening its meaning to include cases where the
father is absent or apathetic toward the child’s welfare, thus allowing the mother to act as the natural
guardian.

The Court upheld the constitutional validity of Section 6(a) of the HMGA but emphasized that both
the father and mother are equally recognized as natural guardians, as long as they are capable and
available to care for the child. The judgment marked an important shift in family law, ensuring that
the welfare of the child became the overriding principle in determining guardianship, rather than
rigid gender roles or traditional legal interpretations.

This case was groundbreaking because it established that the term "natural guardian" in the HMGA is
not restricted solely to the father but extends equally to the mother, highlighting the importance of
both parents being equally responsible for the child's upbringing, provided they are genuinely
interested in the child’s welfare.

ISSUES
Issues raised in Geeta Hariharan v Reserve Bank of India -
● Are the HMG Act’s Section 6(a) and the GW Act’s Section 19(b) biased against women?
● What does the phrase “After” in Section 6(a) of the HMG Act imply? Does that imply that if
the father passes away, the mother will become the child’s natural guardian or that the father
is simply given preference over the mother in this regard?
● If the father is still alive and capable of serving as a guardian, can the mother be appointed as
the child’s natural guardian?
● If the father is still alive and qualified to serve as a guardian, can a mother obtain custody and
guardianship of a minor son?
 ● Depending on the facts of the case, Sections 6(a) of the HMG Act and Section 19(b) of the
GW Act may be interpreted narrowly or broadly for the welfare of the minor.

BRIEF FACTS OF THE CASE:

● Ms. Githa Hariharan (petitioner) was married to Dr. Mohan Ram (respondent) in 1982 and
they had a son named Rishab. A divorce case is pending in the District Court of Delhi as the
respondent had been living in a state of total apathy towards the affairs of the child. Still he
claimed for custody of their minor son in the same proceeding. The petitioner has filed an
application for maintenance for herself and the minor son.

● In 1984, she applied to the Reserve Bank of India (RBI) for 9% relief bonds to be held in the
name of their minor son Rishab as his natural guardian. The RBI sent back the application to
her advising her to either produce the application signed by the father of Rishab or produce a
certificate of guardianship from a competent authority in her favour.

● In RBI’s opinion, Dr. Mohan was the natural guardian of Rishab on the basis of Section 6(a)
of the Hindu Minority and Guardianship Act, 1956 (HMGA) which states that the father is the
natural guardian of a Hindu minor child and the mother is the guardian “after” the father.

● Ms. Hariharan challenged the constitutional validity of this provision in the Supreme Court on
grounds that it violated the right to equality guaranteed under Articles 14 and 15 of the Indian
Constitution. As challenge to the Constitutional validity of S. 6 of the Act is involved in both
the matters, the petitions were heard together.

CONTENTION

● The assertion illustrated by the petitioner was twofold: firstly it was contended that section 6
of the act is discriminatory against women and runs counter to the equality of parental rights.

● As the literal meaning of section 6 conveys the natural guardian of a boy or unmarried girl is
the father and after him, such right rests with the mother, the term “after” in a general sense
refers to the lifetime of the father providing secondary status to mothers.

● This contravenes Article 15 of the constitution and constrains the right of guardianship from
the women.
 ● Second, it was contended that the husband/father is non-existent and completely apathetic
regarding his son.

RATIO DECIDENDI:

● The Hindu Minority and Guardianship Act, 1956 was fashioned for the protection and welfare
of the children, therefore, any interpretation of its provision should be asper the judiciary
should reject the intent of the legislation.

● While the interpretation of statute courts stresses harmonious construction and retention of the
statute, scrapping is considered an end resort when there is a gross violation.

● The courts while analyzing the welfare of a child should consider the circumstances of the
case, the position of parents, the religion of the child, etc., therefore, reliance was placed on
the case of J.V Gajre V. Pathankan (1970) 2 SCC 717, where mother and father were
separated for a long time and mother supervised all the affairs of the child and despite father
was alive he was non-existent in management of his child’s life, the mother was granted the
status of a natural guardian by the court.

LAW

● Section 6 of the Hindu Minority and Guardianship Act 1956 (The natural guardians
of a Hindu minor, in respect of the minor's person as well as in respect of the
minor’s property (excluding his or her undivided interest in joint family property),
are … in the case of a boy or an unmarried girl-the father, and after him, the mother:
provided that the custody of a minor who has not completed the age of five years
shall ordinarily be with the mother)

● Guardian Constitution and Wards Act 1879

● Constitution of India, Article 14 (Equality before the law) and Article 15

(prohibition of discrimination on grounds of religion, race, caste, sex or place of
birth)
ARGUMENTS OF THE PARTIES

The petitioners argue that with the evolving societal structures, the historical ideal of Indian
womanhood, which emphasized nobility, self-denial, and tolerance, is being overshadowed by the
present-day demand for equality and equal status for women. This shift is a global phenomenon, with
different levels of intensity in various countries. India, by ratifying the Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW) in 1993, has committed to removing
gender discrimination.

The petitioners also invoke Article 2 of the Universal Declaration of Human Rights, which
guarantees the right to equality without discrimination based on sex, and emphasize that India's
Constitution upholds equality as a fundamental principle.

The petitioners challenge Section 6 of the Hindu Minority and Guardianship Act, 1956, which
provides that the father is the natural guardian of a minor boy or unmarried girl, with the mother
succeeding after him. The petitioners argue that this section is discriminatory and undermines the
inherent dignity of women as guaranteed by the Constitution.

They contend that Section 6 violates the principles of equality under Articles 14 and 15 of the
Constitution, as it places women at a disadvantage in guardianship matters, failing to recognize their
equal rights as parents. The petitioner, a mother, sought to act as the natural guardian for her minor
son, but the Reserve Bank of India rejected her application for bonds in her son’s name because the
father’s consent was not provided. The petitioner argues that this requirement was arbitrary and
violated her rights under the Constitution.

In a custody dispute, the petitioner (the mother) seeks a declaration that Section 6(a) of the Hindu
Minority and Guardianship Act, along with Section 19(b) of the Guardian and Wards Act, is
unconstitutional. The respondent (father) insists on being recognized as the natural guardian, despite
neglecting his responsibilities toward the child. The petitioner argues that the father’s apathy should
disqualify him from claiming guardianship rights.

Section 6 of the Hindu Minority and Guardianship Act, 1956 specifies that the father is the natural
guardian of a minor boy or unmarried girl, and after him, the mother. However, it provides an
exception for children under five years old, where custody is to be with the mother. In the case of an
illegitimate child, the mother is the natural guardian, followed by the father. Indira Jaisingh,
representing the petitioners, argues that Section 6 creates an inherent gender bias, favoring the father
over the mother in guardianship matters. The provision undermines the equality of both parents in
exercising their guardianship rights and responsibilities. The petitioners argue that the language of
Section 6 does not reflect the modern understanding of parental equality and is contrary to the spirit of
gender equality enshrined in the Constitution.

The Hindu Minority and Guardianship Act, 1956 codified pre-existing Hindu law, where both
parents were considered natural guardians, but the father was given primary authority over the child’s
person and property. The law also codified the concept of de facto and de jure guardians, with the
latter being the legally recognized guardian.

The petitioners note that the judicial system in India, following the principles of equity, has sometimes
disregarded rigid paternal rights when they are found to be arbitrary or harmful to the child’s welfare.
Courts in India and England have emphasized the child’s welfare as the paramount consideration,
rather than simply adhering to statutory interpretations of guardianship.:

The case J.V. Gajre v. Pathankhan and Ors. (1970)3 emphasized that even prior to the Hindu
Minority and Guardianship Act, the mother was the natural guardian of her child when the father was
absent or failed to fulfill his duties. The judgment recognized the mother as the de facto guardian
when the father was not actively involved in the child’s welfare.

The petitioners argue that this precedent supports the claim for equal recognition of both parents as
natural guardians, regardless of gender.

The petitioners seek a declaration that Section 6 of the Hindu Minority and Guardianship Act,
1956, as it currently stands, is unconstitutional. They argue that the section discriminates against
women by treating them as secondary guardians and fails to uphold the dignity and equality of women
in line with constitutional principles.

DECISION
Giving the opinion of the Court, Banerjee J asserted the predominance of the child’s welfare in all
considerations. He considered the precedent of Gajre v. Pathankhan (1970 2 SCC 717) in which,
although the father was alive, he was not taking any interest in the affairs of the child. In that case the
mother was ruled to be the natural guardian of her minor daughter. He set out that the Hindu law and
the Act held that the father is the natural guardian and after him the mother but in the above case, the
Court held the opposite.
The judgment in Gajre v Pathankhan considered that:
“… a rigid insistence of strict statutory interpretation may not be conducive for the growth of the
child, and welfare being the predominant criteria, it would be a plain exercise of judicial power of

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1971 AIR 315
interpreting the law so as to be otherwise conducive to a fuller and better development and growth of
the child.”
Justice Banerjee noted that the judge in Gajre v. Pathankhan allowed the mother to be the natural
guardian:
“… but without expression of any opinion as regards the true and correct interpretation of the word
‘after’ or deciding the issue as to the constitutionality of the provision as contained in Section 6(a) of
the Act of 1956.”
He felt strongly that a long established law should not easily be set aside; that a key point was
interpretation of the word “after”; and that:
“… the word did not necessarily mean after the death of the father, on the contrary, it [means] ‘in the
absence off’ be it temporary or otherwise or total apathy of the father towards the child or even
inability of the father by reason of ailment or otherwise.”
He concluded that ascribing the literal meaning to the word ‘after’ cannot arise having due regard to
the object of the Act and the constitutional guarantee of gender equality, since any other interpretation
would render the statute void which ought to be avoided. Subsequently, he dismissed the petition
regarding the constitutionality of the Act but directed the Reserve Bank to formulate appropriate
methodology in the light of his observations. He also instructed the District Court, Delhi to take
account of his comments when considering custody and guardianship of the minor child.

The decision in the case concerning Section 6 of the Hindu Minority and Guardianship Act of 1956
primarily revolves around whether the section, which recognizes the father as the natural guardian of a
minor child and grants the mother guardianship only after the father’s death, is constitutional and does
not violate the rights of the mother, particularly with respect to gender equality. While I do not have
details of a specific landmark ruling on this, judicial decisions in similar matters typically hinge on the
interpretation of the law and its alignment with constitutional principles. The Supreme Court of India
would likely uphold the constitutional validity of Section 6 of the Hindu Minority and Guardianship
Act, viewing it as a statutory provision intended to codify Hindu personal law while balancing the
interests of the child and the parents. The Court might argue that Section 6 does not violate Articles
14 (equality before law) or 15 (prohibition of discrimination on grounds of sex). While the father is
given primary guardianship rights, the mother’s role is not diminished, and she gains full guardianship
rights after the father’s death.

The Court could rule that Section 6 does not perpetuate gender discrimination but reflects historical
practices within Hindu law. However, it would also recognize that the law must be interpreted with
evolving societal norms. The law provides for the mother's guardianship rights post-father’s death,
which balances gender interests, and courts have the authority to decide guardianship based on the
best interest of the child.

A crucial aspect of the decision would focus on the principle that the welfare of the child is
paramount. While the statute provides for a gendered order of guardianship, the court may emphasize
that this order should not override the welfare of the child, and that courts have discretion to modify
guardianship orders based on the child’s needs. In cases where the mother is better suited to be the
child’s guardian, the court may grant custody or guardianship to her, overriding the statutory
preference for the father in specific cases. The Court might affirm that Section 6 ensures clarity and
prevents disputes regarding guardianship. It provides a structured system that guides judicial and
administrative decisions in cases where the natural guardian is not immediately clear. The Court may
stress the need for further evolution of family law in line with contemporary societal realities. It may
also encourage lawmakers to update provisions like Section 6 to reflect the modern, egalitarian view
of shared parental responsibilities.

ANALYSIS OF THE CASE

Section 6 of the Hindu Minority and Guardianship Act, 1956, designates the father as the primary
natural guardian of a Hindu minor, with the mother assuming the role only after the father's death,
reflecting traditional patriarchal norms. This provision raises constitutional concerns under Articles
14, 15(1), and 21, as it discriminates based on gender and may not align with the child’s welfare,
which is paramount in guardianship matters. Courts, notably in cases like Githa Hariharan v. RBI
(1999), have adopted a progressive interpretation, emphasizing gender neutrality and prioritizing the
child’s best interests over statutory hierarchy. However, the provision perpetuates outdated
stereotypes, placing mothers in a secondary role despite their potential to be more capable guardians.
Legislative reform is necessary to replace the gendered framework with an egalitarian, child-centric
approach that aligns with constitutional values of equality and non-discrimination.

Possible Outcome of this Judgement :

The Supreme Court would likely uphold the law but may provide guidance on its interpretation,
particularly emphasizing that the best interests of the child are paramount. It might also state that
gender equality in guardianship matters should be considered on a case-by-case basis, ensuring that
the father’s primary guardianship rights do not overshadow the mother’s right to guardianship if the
circumstances so demand.
Therefore, while Section 6 could remain intact, the ruling could set a precedent for judicial flexibility
in matters of child custody, allowing for gender-neutral application where the welfare of the child is
concerned.