[sacw] Landmark Judgement in Indian Supreme Court

[Harsh Kapoor]

FYI
South Asia Citizens Web
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From: The Hindustan Times, New Delhi, February 18

SC puts mother on a par with father

(February 18, HT Correspondent)

THE SUPREME Court today provided a landmark ruling that gives a Hindu
mother equal right with her husband to the guardianship of their children
who are minors.
The ruling was handed down by a three-judge bench in two separate but
concurring judgements while interpreting the provisions of the section 6(a)
of the Hindu Minority and Guardianship Act, 1956 and section 19(b) of the
Guardian and Wards act, 1890. Both these provisions recognised only the
father as the natural guardian of a minor till now.
While the main judgement was delivered by Justice U.C. Banerjee, Chief
Justice A.S. Anand and Justice M. Srinivasan gave a separate concurring
judgement with their own reason for agreeing with the main judgement. The
duo, however, clarified that its judgement will operate prospectively and
will not enable any person to reopen any decision already rendered or
question the validity of any past transaction, on basis of today's
judgement.
The CJ, who wrote the concurring judgement for himself and Justice
Srinivasan, held that "in all situations where the father is not in actual
charge of the affairs of a minor, either because of his indifference or
because of an agreement between him and the mother (oral or written), or
the father for any other reason is unable to take care of the minor because
of his physical or mental incapacity, the mother can act as the natural
guardian of the minor."
The apex court said that all her (the mother) actions would be valid even
during the lifetime of the father, who would be deemed as 'absent' for the
purposes of the two sections of the Acts.
Section 6(a) of the HMG Act says, "In the case of a boy or an unmarried
girl (guardianship rests with) 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." The court noted that it was
primarily concerned with best interests of the minor while determining the
dispute over the minor's custody and guardianship. "The question, however,
assumes importance only when the mother acts as guardian of the minor
during the life time of the father...," the Court pointed out.
The court's observations came on two writ petitions challenging the
constitutional validity of the sections. The first petition was filed by
author Githa Hariharan and her scientist husband while the second was filed
by Dr Vandana Shiva. Both the petitions contended that the sections were
violative of the equality clause of the Constitution.
Ms Hariharan and her husband had petitioned the apex court as the Reserve
Bank of India (RBI) had refused to entertain an application signed by her
to open Relief Bonds in the name of their minor son.
The reason: the application was not signed by the minor's father. The RBI
has questioned the authority of the mother to act as legal guardian in view
of section 6(a) of the HMG Act despite the fact that she had acted with the
concurrence of the father. The Supreme Court observed that the RBI should
accept the application filed by the mother. "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," the
Court said.

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