1999 Supreme(SC) 213

1999(2) Supreme 123
Supreme Court of India
(Under Art. 32 of the Constitution of India)
Dr. A.S. Anand, CJI., M. Srinivasan & Umesh C. Banerjee, JJ.
Ms. Githa Hariharan & Anr. etc. -Petitioners
versus
Reserve Bank of India & Anr. etc. -Respondents
Writ Petition (Civil) No. 489 of 1995
With
Writ Petition (C) No. 1016 of 1991
Decided on 17-2-1999
Counsel for the Parties :
For the Petitioners : Ms. Indra Jaisingh, Sr. Advocate, Sanjay Parikh, Ms. Anitha Shenoy, Sanjoy Ghosh, Abinash Kumar Misra, Advocates.
For the Respondents : H.N. Salve, Sr. Advocate, H.S. Parihar, Kuldeep S. Parihar, Ajit Pudussery, and Ms. C.K. Sucharita, Advocates.

Important Points
1. In all situations where the father is not in actual charge of the affairs of the minor either because of his indif­ference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapaci­ty, the mother, can act as natural guardian of the minor and all her actions would be valid even during the life time of the father, who would be deemed to be ‘absent’ for the purposes of Section 6(a) of HMG Act and Section 19(b) of GW Act.
2. The word ‘after’ occurring in Section 6(a) of the Hindu Minority and Guardianship Act need not necessarily mean ‘after life time’; it means in the absence of, the word ‘absence therein referring to the father’s absence from the care of the minor’s property or person for any reason whatever.

Headnote:(i) Hindu Minority and Guar­dian­­ship Act, 1956-Section 6(a)-Guardian and Wards Act, 1890-Section 19(b)-Challenge to pro­visions of Section 6(a) of HMA Act and Section 19(b) of GW Act as violative of equality clause of Constitution-Ground that mother of minor relegated to inferior position on ground of sex alone since her right as natural guardian of minor is made cognisable only ‘after’ father-Held : word ‘after’ need not necessarily mean ‘after the life time’-In the con­text it appears in Section 6(a), it means ‘in the absence of’-In all situations where father is not in actual charge of affairs of minor either because of his indifference or because of an agree­ment between him and mother of minor (oral or written) and minor is in exclusive care and custody of mother or father for any other reason is unable to take care of minor because of his physical and/or mental incapacity, mother can act as natural guardian-All her actions would be valid even during life time of father who would be deemed to be absent for purposes of Section 6(a) of HMG Act and Section 19(b) of GW Act.

       (ii) Hindu Minority and Guardian­ship Act, 1956-Section 6(a)-Natural Guardian-Mother and father of minor child mutually agreed that mother would act as guardian - Joint application by mother and father for 9 relief Bond from RBI in name of minor - Application signed by mother as guardian-RBI advising application be signed by father or to obtain certificate of guardianship - Not justified - RBI bound to accept appli­cation filed by another. (Paras 2 & 17)

       Held : The expression ‘natural guardian’ is defined in Section 4(c) of HMG Act as any of the guardians mentioned in Section 6 (supra). The term ‘guardian’ is defined in Section 4(b) of HMG Act as a person having the care of the person of a minor or of his property or of both, his person and property, and includes a natural guardian among others. Thus, it is seen that the definitions of ‘guardian’ and ‘natural guardian’ do not make any discrimination against mother and she being one of the guardians mentioned in Section 6 would undoubtedly be a natural guardian as defined in Section 4(c). The only provision to which exception is taken is found in Section 6(a) which reads “the father, and after him, the mother”. (underlining ours). That phrase, on a cursory reading, does give an impression that the mother can be considered to be natural guardian of the minor only after the life time of the father. In fact that appears to be the basis of the stand taken by the Reserve Bank of India also. It is not in dispute and is otherwise well settled also that welfare of the minor in the widest sense is the paramount consideration and even during the life time of the father, if necessary, he can be replaced by the mother or any other suitable person by an order of court, where to do so would be in the interest of the welfare of the minor. (Para 7)

       Whenever a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a Court of law, the word ‘after’ in the Section would have no significance, as the Court is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor. The question, however, assumes importance only when the mother acts as guardian of the minor during the life time of the father, without the matter going to Court, and the vali­dity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of Section 6(a) (supra). (Para 8)

       In the present case, the Reserve Bank of India has questioned the authority of the mother, even when she had acted with the concurrence of the father, because in its opinion she could function as a guardian only after the life time of the father and not during his life time. Is that the correct way of understanding the section and does the word ‘after’ in the Section mean only ‘after the life time’? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender-equality, one of the basic principles of our Constitution. The HMG Act came into force in 1956, i.e., six years after the Constitution. Did the Parliament intend to transgress the constitutional limits or ignore the fundamental rights guaranteed by the Constitution which essential­ly prohibits discrimination on grounds of sex? In our opinion-No. It is well settled that if on one construction a given statute will become unconstitutional, whereas on another construction, which may be open, the statute remains within the constitutional limits, the Court will prefer the latter on the ground that the Legislature is presumed to have acted in accordance with the Constitution and courts generally lean in favour of the constitutionality of the statutory provisions. (Paras 8 & 9)

       We are of the view that the Section 6(a) (supra) is capable of such construction as would retain it within the Constitutional limits. The word ‘after’ need not necessarily mean ‘after the life time’. In the context in which it appears in Section 6(a) (supra), it means ‘in the absence of’, the word ‘absence’ therein referring to the father’s absence from the care of the minor’s property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognized natural guardian, can act validly on behalf of the minor as the guard­ian. Such an interpretation will be the natural outcome of harmonious construction of Section 4 and Section 6 of HMG Act, without caus­ing any violence to the language of Section 6(a) (supra). (Para 10)

       The message of international instruments-Convention on the Elimi­nation of All Forms of Discrimination Against Women, 1979 (“CEDAW”) and the Beijing Declaration, which directs all State parties to take appropriate measures to prevent discrimination of all forms against women is quite clear. India is a signatory of CEDAW having accepted and ratified it in June, 1993. The interpretation that we have placed on Section 6(a) (supra) gives effect to the principles contained in these instruments. The domestic courts are under an obligation to give due regard to International Conventions and Norms for construing domestic laws when there is no inconsistency between them. Similarly, Section 19(b) of the GW Act would also have to be construed in the same manner by which we have construed Section 6(a) (supra). (Paras 14 & 15)

       While both the parents are duty bound to take care of the person and property of their minor child and act in the best interest of his welfare, we hold that in all situations where the father is not in actual charge of the affairs of the minor either because of his indif­ference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapaci­ty, the mother, can act as natural guardian of the minor and all her actions would be valid even during the life time of the father, who would be deemed to be ‘absent’ for the purposes of Section 6(a) of HMG Act and Section 19(b) of GW Act. (Para 16)

       We are conscious of the fact that till now many transactions may have been invalidated on the ground that the mother is not a natural guardian, when the father is alive. Those issues cannot be permitted to be reopened. This judgment, it is clarified, will operate prospectively and will not enable any person to reopen any decision already rendered or question the validity of any past transaction, on the basis of this judgment. (Para 18)

       Per Banerjee, J.-

       Sub-section (c) of Section 4 provides that a natural guardian means a guardian mentioned in Section 6. This definition section, however, obviously in accordance with the rule of interpretation of statute, ought to be read subject to Section 6 being one of the basic provisions of the Act and it is this Section 6 which records that natural guardian of a Hindu minor, in the case of a boy or an unmarried girl, is the father and after him the mother. The statute therefore 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 life time 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 also cannot but be stated to be a prohibited marker under Article 15 of the Constitution. (Para 39)

       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 dehors the same and it is on this perspective that the word ‘after’ 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. (Para 40)

       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 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. (Para 43)

       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 life-time 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 ‘after’ 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 ‘after’ is to be read to mean a disqualification of a mother to act as a guardian during the life-time 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. In our opinion 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. 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. (Paras 44 to 47)