The Cause of Contention: Section 6 (A) of Hindu Minority and Guardianship Act, 1956

Monday, 27 November 2023 10:21 PM
‘Gita Hariharan v. Reserve Bank of India, (1999)’, is a landmark case. It is a

important case not only as regard to interpretation rule but also to establishing
the equal right of women on children.
The cause of contention

The case, challenge the validity of ‘Section 6´ of ‘Hindu minority and
guardianship act, 1956’, on the ground that dignity of women is a right inhere
under the Constitution which as a matter of fact stands negatived by said
Section.
What was the matter?

• In December, 1984 the petitioner applied to the Reserve Bank of India fo
9% Relief Bond to be held in the name of their minor son Rishab along w
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
Competent Authority in her favour, ought to be forwarded to the Bank
forthwith so as to enable the Bank to issue Bonds as requested.
It is this communication from the RBI authorities, which is stated to be arbitrar
and opposed to the basic concept of justice in this petition under Article 32 of
Constitution challenging the validity of section 6 of the Act as indicated above.
Incidentally, the minor had been staying with the mother and it had been the
definite case of the petitioner in this petition under Article 32 that in spite of be
efforts of the petitioner, the father has shown total apathy towards the child an
as a matter of fact was not interested in welfare and benefit of the child
excepting however claiming the right to be the natural guardian without howev
discharging any corresponding obligation.
It was on these facts that the petitioner moved this Court under Article 32 of th
Constitution praying for declaration of the provisions of Section 6(a) of the Ac
read with Section 19(b) of the Guardian and Wards Act as violative of
Articles 14 and 15 of the constitution.
that in spite of best efforts of the petitioner, the father has shown total
apathy towards the child and as a matter of fact was 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 was on these facts that the petitioner moved this Court under Article
32 of the Constitution praying for declaration of the provisions
of Section 6(a) of the Act read with Section 19(b) of the Guardian
and Wards Act as violative of Articles 14 and 15 of the
constitution.
Provisions in dispute
Section 6(a) of Hindu minority
and guardianship act, 1956
For convenience sake section 6 of the Act of 1956 is set out herein
below:
“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, 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;
Section 19(b) of Guardianship and

wards act, 1890
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 person—
(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;
The analysis of the court

(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;
The analysis of the court

Herein below the analysis of the court-
• Hindu Minority and Guardianship Act of 1956 has been engrafted

on the statute book by way of an amendment and codification of
certain parts of the law relating to minority and guardianship
among Hindus but the law makers however thought it prudent to
codify certain parts of the law in order to give a fruitful meaning
and statutory sanction to the prevailing concept of law having due
regard to the social and economic changes in the society.
It is on this perspective however certain aspects of the law as it
stood prior to the codification ought to be noted.
• The law relating to minority and guardianship amongst Hindus is

to be found not only in the old Hindu law as laid down by the
smritis, shrutis and the commentaries as recognised by the
Courts of law but also statutes applicable amongst others to
Hindus, to wit, Guardian and Wards Act of 1890 and Indian
Majority Act of 1875. Be it further noted that the Act of 1956 does
not as a matter of fact in any way run counter to the earlier
statutes in the subject but they are supplemental to each
other as reflected in Section 2 of the Act of 1956 itself which
provides that the Act shall be in addition to and not in derogation
of the Acts as noticed above.
Welfare of the child is prominent
• In equity, a discretionary power has been exercised to control the
father’s or guardian’s legal rights of custody, where exercise of
such right cannot but be termed to be capricious or whimsical in
nature or would materially interfere with the happiness and
the welfare of the child.
In re Mc Grath (1893, 1 Ch.143) Lindley, L.J., observed:
“The dominant matter for the consideration of the Court is the

welfare of the child. But the welfare of a child is not to be measured
by money only, nor by physical comfort only. The word `welfare’ must
be taken in its widest sense. The moral and religious welfare of the
child must be considered as well as its physical well-being. Nor can
the ties of affection be disregarded.”
Lord Esher, M.R. in the Gyngall (1893) 2 Q.B.232 stated:

be taken in its widest sense. The moral and religious welfare of the
child must be considered as well as its physical well-being. Nor can
the ties of affection be disregarded.”
Lord Esher, M.R. in the Gyngall (1893) 2 Q.B.232 stated:
“The Court has to consider therefore, the whole of the circumstances

of the case, the position of the parent, the position of the child, the age
of the child, the religion of the child so far as it can be said to have any
religion, and the happiness of the child. Prima facie it would not be for
the welfare of the child to be taken away from its natural parent and
given over to other people who have not that natural relation to it.
Every wise man would say that, generally speaking, the best place for
a child is with its parent. If a child is brought up, as one may say from
its mother’s lap in one form of religion, it would not, I should say be for
its happiness and welfare that a stranger should take it away in order
to alter its religious views.
Again, it cannot be merely because the parent is poor and the person
who seeks to have the possession of the child as against the parent is
rich, that, without regard to any other consideration, to the natural
rights and feelings of the parent, or the feelings and views that have
been introduced into the heart and mind of the child, the child ought
not to be taken away from its parent merely because its pecuniary
position will be thereby bettered. No wise man would entertain such
suggestions as these.”
Indian perspective
The English law therefore has been consistent with the concept of
welfare theory of the child. The Indian law also does not make any
departure, therefrom.
In this context, reference may be made to the decision of this Court in

the case of J.V. Gajre vs. Pathan khan and Ors. (1970 (2) SCC
717) in which supreme Court in paragraph 11 of the report observed:
“It was the mother who was actually managing the affairs of her minor
daughter, who was under her care and protection. From 1951 onwards
the mother in the usual course of management had been leasing out
the properties of the appellant to the tenant. It is no doubt true that the
father was alive but he was not taking any interest in the affairs of the
minor and it was as good as if he was non-existent so far as the minor
appellant was concerned. We are inclined to agree with the view of the
High Court that in the particular circumstances of this case, the mother
can be considered to be the natural guardian of her minor daughter.
the properties of the appellant to the tenant. It is no doubt true that the
father was alive but he was not taking any interest in the affairs of the
minor and it was as good as if he was non-existent so far as the minor
appellant was concerned. We are inclined to agree with the view of the
High Court that in the particular circumstances of this case, the mother
can be considered to be the natural guardian of her minor daughter.
It is needless to state that even before the passing of the Hindu

Minority and Guardianship Act, 1956, the mother is the natural
guardian after the father. The above Act came into force on August 25,
1956 and under section 6 the natural guardians of a Hindu minor in
respect of the minor’s person as well as the minor’s property are the
father and after him the mother. The position in the Hindu Law before
this enactment was also the same. That is why we have stated that
normally when the father is alive he is the natural guardian and it is
only after him that the mother becomes the natural guardian. But on
the facts found above the mother was rightly treated by the High Court
as the natural guardian.”
Interpretation of the section

The court in the present case, further analysed that,
The whole tenor of the Act of 1956 is to protect the welfare of the child
and as such interpretation ought to be in consonance with the
legislative intent in engrafting the statute on the Statute Book and not
de hors the same and it is on this perspective that the word àfter’
appearing in section 6A shall have to be interpreted.
It is now a settled law that a narrow pedantic interpretation

running counter to the constitutional mandate ought always to be
avoided unless of course, the same makes a violent departure
from the Legislative intent-in the event of which a wider debate
may be had having due reference to the contextual facts.
The 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.
Interpretation of ‘after’
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
enactment to be an invalid piece of legislation and not otherwise.
Interpretation of ‘after’
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 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.
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 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 àfter’
therefore shall have to be read and interpreted in a manner so as not
to defeat the true intent of the legislature.
Be it noted further, that gender equality is one of the basic principles of

our Constitution and in the event the word àfter’ 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 àfter’ 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.
We do feel it expedient to record that the word àfter’ 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 ìn the

The Cause of Contention: Section 6 (A) of Hindu Minority and Guardianship Act, 1956

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Monday, 27 November 2023 10:21 PM

‘Gita Hariharan v. Reserve Bank of India, (1999)’, is a landmark case. It is a

The cause of contention

What was the matter?

“6. Natural guardians of a Hindu minor–

The natural guardians of a Hindu minor, in respect of the minor’s

(a) in the case of a boy or an unmarried girl-the father, and after

Section 19(b) of Guardianship and

Nothing in this Chapter shall authorize the Court to appoint or declare

(b) of a minor whose father is living and is not in the opinion of

The analysis of the court

The analysis of the court

• Hindu Minority and Guardianship Act of 1956 has been engrafted

• The law relating to minority and guardianship amongst Hindus is

“The dominant matter for the consideration of the Court is the

Lord Esher, M.R. in the Gyngall (1893) 2 Q.B.232 stated:

Lord Esher, M.R. in the Gyngall (1893) 2 Q.B.232 stated:

“The Court has to consider therefore, the whole of the circumstances

In this context, reference may be made to the decision of this Court in

It is needless to state that even before the passing of the Hindu

Interpretation of the section

It is now a settled law that a narrow pedantic interpretation

The validity of a legislation is to be presumed and efforts should

The law therefore recognised that a minor has to be in the

Be it noted further, that gender equality is one of the basic principles of

Normal rules of interpretation shall have to bow down to the

We do feel it expedient to record that the word `after’ does not

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