UNIVERSITY INSTITUTE OF LEGAL STUDIES

IVTH SEMESTER BCOMLLB (Hons.) PROJECT WORK

ON
“GITHA HARIHARAN V. RESERVE BANK OF INDIA”
FOR THE SUBJECT OF FAMILY LAW-II
2020-21

SUBMITTED TO: SUBMITTED BY:

DR. ANJU CHOUDHARY NIRUPAM KAUR
PROFESSOR ROLL NO-292/19
UILS BCOMLLB (Hons.)
PANJAB UNIVERSITY SECTION E
SEMESTER 4

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 STUDENT CERTIFICATE

This is to certify that “NIRUPAM KAUR” student of BCOM LLB

4TH
SEMESTER; Section E has successfully completed her Family Law-
II project on
“GITHA HARIHARAN V. RESERVE BANK OF INDIA” under
the guidance of
Dr. Anju Choudhary (Subject Teacher) during the year 2020-21 in
fulfillment of 2nd year of BCOM LLB (Hons.)
five years integrated course at
UNIVERSITY INSTITUTE OF LEGAL STUDIES (UILS), PANJAB
UNIVERSITY.

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 ACKNOWLEGDEMENT

I would like to express my warm gratitude towards almighty who

provided me such a fortunate opportunity to study this respective
course in UILS, PU. I will thank my professor Anju Ma’am who
guided me in making this project report on
“Githa Hariharan v. Reserve Bank of India”
Secondly, I would thank my parents who provided me the resources
required to complete this project report, I will also thank my sibling
and friends who helped me in completing the said project on time.

NIRUPAM KAUR

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 TABLE OF CONTENTS

STUDENT CERTIFICATE ..................................................................2

ACKNOWLEGDEMENT ....................................................................3
INTRODUCTION .................................................................................5
MISCELLANEOUS TERMS RELATED TO CASE ...............................8
FACTS OF THE CASE: Githa Hariharan v. Reserve Bank of India ...9
ISSUES RAISED ................................................................................10
ARGUMENTS ADVANCED ................................................................11
JUDGEMENT......................................................................................12
CONCLUSION ...................................................................................14
REFERENCES .....................................................................................15

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 INTRODUCTION

The Dharam shastras did not deal with the law of guardianship of minor. The
broad principle was recognized that the King is the supreme guardian; “parens
patrie” of all the minors within the realms. No other sage except Narda
mentions father and mother as guardians.1 During the British regime, the law of
guardianship was developed by the courts, the court held father is the natural
guardian of the children and after his death, the mother is the natural guardian,
and no one else can be the natural guardian of minor children. It was also
accepted that the supreme guardianship of minor children vested in the King as
parens patriae and was exercised by courts.2
The Guardianship and Wards Act was passed in 1890 and conferred on District
Courts power of appointing guardians of minor children belonging to any
community.
The Hindu Law of Guardianship of minor children has been codified and
reformed by the Hindu Minority and Guardianship Act,1956.
Guardian is a person who legally and physically protects the minor individual
and is also responsible for actions of such minor, it is the guardian who has to
pay attention to the welfare of that respective minor. Generally, guardian is
appointed by a Court of Law to take care of minor and protect him when his
parents had either died or absent for the welfare of such minor. Guardianship in
most systems is conceived as an extension of paternal power. But in modern
Hindu law it implies an idea of protection.3
Guardian is defined as “A person who is legally responsible for the care of
another person, especially a child whose parents have died” by Oxford
Dictionary.
According to section 4 of The Hindu Minority and Guardianship Act,1956,
“minor” means a person who has not completed the age of eighteen years.
While, “guardian” means a person having the care of the person of a minor or
of his property or of both his person and property, and includes—
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor’s father or mother,

1
Paras Diwan, Modern Hindu Law 268 (Allahabad Law Agency, Faridabad, 24th reprint edn., 2020).
2
Banke v Banke, 1943 Cal. 203.
3
Ibid.

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(iii) a guardian appointed or declared by a court, and
(iv) a person empowered to act as such by or under any enactment relating to
any Court of
Wards.
There are 4 major types of guardians based on the above-mentioned provision:
1. Natural Guardians: as per Hindu law only 3 persons are recognized as
natural guardians, father, mother and husband.
2. Will guardian or testamentary guardian: the father of a minor may
appoint any person as his guardian by will before his death and that
person is called will or testamentary guardian.
3. De jure guardian or certified guardian: The Court of law may appoint a
person as guardian of a minor and that person is a certified guardian or
De jure guardian.
4. Guardianship by affinity: if a minor girl undergoes child marriage, then
as per old law, husband is the first guardian and after him or in case of his
death, father-in-law is treated as guardian of such minor girl. But as per
the new law, the child marriage is considered void but, in a few cases, it
is voidable, if a minor girl undergoes or has undergone child marriage
then her parents will remain her guardian and in case the parents die or
does not treat her at par then court may appoint a De Jure guardian.
In this project I will cover the concept of natural Guardianship as explained by The Hindu
Minority and Guardianship Act,1956 in relation with the case law of:
GITHA HARIHARAN V. RESERVE BANK OF INDIA4

Section 6 Natural guardians of a Hindu minor. —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—
(a) 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;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl—the
mother, and after her, the father;
(c) in the case of a married girl—the husband:

4
Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.

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Provided that no person shall be entitled to act as the natural guardian of a
minor under the provisions of this section—
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi).
Explanation. —In this section, the expressions “father” and “mother” do not
include a step-father and a step-mother.5
Father cannot be deprived of natural guardianship of his minor children unless
he has been found unfit. Section 13 of the act6 lays down that the welfare of
minor children id of paramount consideration and father’s right of guardianship
is subordinate to the welfare of the child. Before 1956, the father could prevent
the mother from assuming the guardianship of her minor children even after his
death by appointing a testamentary guardian. This cannot be done now. The act
lays down that if father appoints a testamentary guardian and the mother
survives him, the appointment of testamentary guardian will be ineffective as
long as mother is alive. If the mother dies without appointing a testamentary
guardian, then the person that father appointed before his death will be guardian
while if mother had appointed a new testamentary guardian before her death,
then the person appointed as guardian by mother will be considered
testamentary guardian of that minor, the fathers’ appointee will become
ineffective. The act7does not recognize the principle of joint guardians. The
position of adopted children is at par with natural born children.
Under the Indian Majority Act (s. 3), minority ceases on the completion of the
eighteenth year, unless a guardian of the person or property or both of the minor
has been or shall be appointed before the minor has attained the age of eighteen
years, or the property of the minor is under the superintendence of a Court of
Wards, in which case the age of minority is prolonged until the minor has
completed the age of twenty-one years.

5
The Hindu Minority and Guardianship Act,1956 (Act no. 32 of 1956).
6
Ibid.
7
Supra note 5.

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 Miscellaneous terms related to the case

1. Relief Bond: RBI Relief bonds have traditionally been issued by the
central bank carrying interest rates closer to the prevailing small savings
rate with the added benefit of income tax exemptions. They are
considered bonds with the highest safety, since they are backed by the
Government of India. These bonds have long been one of the favoured
fixed income investment instruments over the years.

2. Section 19 b of the Guardians and Wards Act, 19808.

Section 19. Guardian not to be appointed by the Court in certain cases: Nothing
in this Chapter shall authorize the Court to appoint or declare a guardian of the
property of a minor whose property is under the superintendence of a Court of
Wards, or to appoint or declare a guardian of the person –
a) of a minor who is a married female and whose husband is not, in the opinion
of the Court, unfit to be guardian of her person, or
b) of a minor whose father is living and is not, in the opinion of the court, unfit
to be guardian of the person of the minor, or
c) of a minor whose property is under the superintendence of a Court of Ward
competent to appoint a guardian of the person of the minor.
3. Article 2 of Universal Declaration of Human Rights:
“Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status. Furthermore, no distinction shall be made on the basis of the political,
jurisdictional or international status of the country or territory to which a
person belongs, whether it be independent, trust, non-self-governing or under
any other limitation of sovereignty.”

8
The guardians and Wards Act, 1890 (Act no. 8 of 1890).

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 FACTS OF THE CASE: Githa Hariharan
v.
Reserve Bank of India9

Honorable Court: Supreme Court of India

Petitioner: Mrs. Githa Hariharan & Anr
V.
Respondent: Reserve Bank of India & Anr
Bench: Anand CJI, Srinivasan J, Banerjee J
Date of Judgement: 17 February 1999
The petitioner and Dr. Mohan Ram were married at Bangalore in 1982 and in
July 1984, a son named Rishabh Bailey was born to them. In December, 1984
the petitioner applied to the Reserve Bank of India for 9% Relief Bond to be
held in the name of their minor son Rishabh along with an intimation that the
petitioner No.1 being the mother, would act as the natural guardian for the
purposes of investments. The application however was sent back to the
petitioner by the RBI Authority advising her to produce the application signed
by the father and in the alternative the Bank informed that a certificate of
guardianship from a Competent Authority in her favor, ought to be forwarded to
the Bank forthwith so as to enable the Bank to issue Bonds as requested and it is
this communication from the RBI authorities, which is stated to be arbitrary and
opposed to the basic concept of justice in this petition under Article 32 of the
Constitution challenging the validity of section 6 of the Act10.
The factual backdrop in this writ petition centers around a prayer for custody of
the minor son born through the lawful wedlock between the petitioner and the
first respondent. Be it noted that a divorce proceeding is pending in the District
Court of Delhi and the first respondent has prayed for custody of their minor
son in the same proceeding. The petitioner in turn, however, also has filed an
application for maintenance for herself and the minor son. On further factual
score it appears that the first respondent has been repeatedly writing to the
petitioner, asserting that he was the only natural guardian of the minor and no
decision should be taken without his permission. Incidentally, the minor has
been staying with the mother and it has been the definite case of the petitioner
9
Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.
10
Supra note 5

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in this petition under Article 32 that, in spite of best efforts of the petitioner, the
father has shown total apathy towards the child and as a matter of fact is not
interested in welfare and benefit of the child excepting however claiming the
right to be the natural guardian without however discharging any corresponding
obligation.
It is on these facts that the petitioner moved this Court under Article 32 of the
Constitution of India praying for declaration of the provisions of Section 6(a) of
the Act11 read with Section 19(b) of the Guardians and Wards Act12 as
violative of Articles 14 and 15, challenge to the constitutionality of Section 6 of
the Act is involved in both the matters, the petitions were heard together.

ISSUES RAISED

The court studied the facts of the case in detail and following were the issues
raised before the Supreme Court:
1. The Section 6 (a) of the Hindu Minority and Guardianship Act, 1956 read
with Section 19 (b) of the Guardians and Wards Act, 1896 is violative of
Article 14 of the Indian Constitution, which guarantees “Equality before
law”.

2. The Section 6 (a) of the Hindu Minority and Guardianship Act, 1956 read
with Section 19 (b) of the Guardians and Wards Act, 1896 is violative of
Article 15 of the Indian Constitution, which “Prohibits discrimination on
grounds of religion, race, caste, sex or place of birth”.

11
Ibid.
12
Supra note 8.

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 ARGUMENTS ADVANCED
1. A major issue raised in this case was that The Section 6 (a) of the Hindu
Minority and Guardianship Act, 1956 read with Section 19 (b) of the
Guardians and Wards Act, 1896 is violative of Article 14 of the Indian
Constitution, which guarantees “Equality before law” that explains “The
State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth.”
the petitioners strongly contended that the provisions of section 6 of the Act13
seriously disadvantage woman and discriminate man against woman in the
matter of guardianship rights, responsibilities and authority in relation to their
own children. This question of putting a limit on mother in the matter of
exercise of right over the minor as the guardian or ascribing the father as the
preferred guardian does not arise, but unfortunately however, the language in
section 6 of the Act runs counter to such an equality of rights of the parents to
act as guardian to the minor child. This is seen as a clear violation of equality
before law mentioned under Article 14.
2. Another major issue raised was that The Section 6 (a) of the Hindu Minority
and Guardianship Act, 1956 read with Section 19 (b) of the Guardians and
Wards Act, 1896 is violative of Article 15 of the Indian Constitution, which
“Prohibits discrimination on grounds of religion, race, caste, sex or place of
birth”. It states that “The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them.”
The statute on a plain reading with literal meaning being ascribed to the words
used, depicts that the mother's right to act as a natural guardian stands
suspended during the lifetime of the father and it is only in the event of death of
the father, the mother obtains such a right to act as a natural guardian of a Hindu
minor. It is this interpretation which has been ascribed to be having a gender
bias and thus opposed to the constitutional provision. It has been contended that
the classification is based on marital status depriving a mother's guardianship of
a child during the life time of the father which is clearly not in terms with
Article 15 and hence unconstitutional in nature.

13
Supra note 5.

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 JUDGEMENT

Judgement made by High court in matter of Guardianship

The contextual facts in the decision noticed above, depict that since the father
was not taking any interest in the minor and it was as good as if he was non-
existing so far as the minor was concerned, the High Court allowed the mother
to be the 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
- it was decided upon the facts of the matter in issue. The High Court in fact
recognised the mother to act as the natural guardian and the findings stand
accepted and approved by this Court. Strictly speaking, therefore, this decision
does not lend any assistance in the facts of the matter under consideration
excepting however that welfare concept had its due recognition.
Judgement made by Supreme Court in Matter of Constitutionality
On observing the facts and arguments the bench asserted the predominance of
the child’s welfare in all consideration. The welfare of the child is the most
important over all the other, welfare not means only the monetary benefits, it
includes love, affection, security, etc for the child. The bench pointed out the
precedent Gajre vs. Pathankhan14. In which the father was alive, he was not
taking any interest in the affairs of the child. In this 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 cases, the court held the opposite.
The supreme court held that the expression `natural guardian' has been defined
in Section 4(c) as noticed above to mean any of the guardians as mentioned in
section 6 of the Act of 1956. This section refers to three classes of guardians
viz., father, mother and in the case of a married girl the husband. The father and
mother therefore, are natural guardians in terms of the provisions of Section 6
read with Section 4(c). Incidentally it is to be noted that in the matter of
interpretation of statute the same meaning ought to be attributed to the same
word used by the statute as per the definition section. In the event, the word
`guardian' in the definition section means and implies both the parents, the same
meaning ought to be attributed to the word appearing in section 6(a) and in that
perspective mother's right to act as the guardian does not stand obliterated
during the lifetime of the father and to read the same on the statute otherwise

14
Gajre v Pathankhan,1971 AIR 315, 1971 SCR (2) 1

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would tantamount to a violent departure from the legislative intent. Section 6(a)
itself recognises that both the father and the mother ought to be treated as
natural guardians and the expression `after' therefore shall have to be read and
interpreted in a manner so as not to defeat the true intent of the legislature.
Gender equality is one of the basic principles of our Constitution and in the
event the word `after' is to be read to mean a disqualification of a mother to act
as a guardian during the lifetime of the father, the same would definitely run
counter to the basic requirement of the constitutional mandate and would lead to
a differentiation between male and female. Normal rules of interpretation shall
have to bow down to the requirement of the Constitution since the Constitution
is supreme and the statute shall have to be in accordance therewith and not de
hors the same. The father by reason of a dominant personality cannot be
ascribed to have a preferential right over the mother in the matter of
guardianship since both fall within the same category and in that view of the
matter the word `after' shall have to be interpreted in terms of the constitutional
safe-guard and guarantee so as to give a proper and effective meaning to the
words used.
According to the opinion of Supreme Court the word `after' shall have to be
given a meaning which would sub-serve the need of the situation viz., welfare
of the minor and having due regard to the factum that law courts endeavour to
retain the legislation rather than declaring it to be a void, we do feel it expedient
to record that the word `after' does not necessarily mean after the death of the
father, on the contrary, it depicts an intent so as to ascribe the meaning thereto
as `in the absence of `- 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 and it is only in the event of such a meaning being ascribed to the
word `after' as used in Section 6 then and in that event the same would be in
accordance with the intent of the legislation viz. welfare of the child.
Turning attention on the principal contention as regards the constitutionality of
the legislation, in particular Section 6 of the Act of 1956 it is to be noted that
validity of a legislation is to be presumed and efforts should always be there on
the part of the law courts in the matter of retention of the legislation in the
statute book rather than scrapping it and it is only in the event of gross violation
of constitutional sanctions that law courts would be within its jurisdiction to
declare the legislative enactment to be an invalid piece of legislation and not
otherwise and it is on this perspective that we may analyse the expressions used
in section 6 in a slightly more greater detail. The word `guardian' and the
meaning attributed to it by the legislature under section 4(b) of the Act cannot
be said to be restrictive in any way and thus the same would mean and include

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both the father and the mother and this is more so by reason of the meaning
attributed to the word as "a person having the care of the person of a minor or
his property or of both his person and property...." It is an axiomatic truth that
both the mother and the father of a minor child are duty bound to take due care
of the person and the property of their child and thus having due regard to the
meaning attributed to the word `guardian' both the parents ought to be treated as
guardians of the minor. As a matter of fact, the same was the situation as
regards the law prior to the codification by the Act of 1956. The law therefore
recognised that a minor has to be in the custody of the person who can sub-
serve his welfare in the best possible way - the interest of the child being
paramount consideration
In that view of the matter question of ascribing the literal meaning to the word
`after' in the context does not and cannot arise having due regard to the object of
the statute, read with the constitutional guarantee of gender equality and to give
a full play to the legislative intent, since any other interpretation would render
the statute void and which situation in our view ought to be avoided.

CONCLUSION

Where the father is alive but he is non-functioning natural guardian, the mother
can act as the natural guardian. In this case mother has been held to be the
natural guardian of the minor on grounds that she was the one who took serious
care of child therefore paid attention towards the welfare of the child, the
fathers’ total apathy and absence cannot be shielded under narrow interpretation
of the statutory provisions. The word “after” has been interpreted to mean “in
absence of” rather than “after the lifetime”, this absence would mean absence of
father from the care of minor and his lack of involvement in welfare of minor.
As per the principles of constitutional interpretation each provision should be
interpreted broadly inclusive of possible perceptions rather than exclusive.

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 REFERENCES

PRIMARY SOURCES:
1. The Hindu Minority and Guardianship Act,1956 (Act no. 32 of
1956).
2. The Guardians and Wards Act, 1890 (Act no. 8 of 1890).
3. The Constitution of India.

SECONDARY SOURCES:
1. Paras Diwan, Modern Hindu Law, (Allahabad Law Agency,
Faridabad, 24th reprint edn., 2020).

WEB SOURCES:
1. https://indiankanoon.org/doc/1241462/
2. https://legalthirst.com/

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