Ms Githa Hariharan & Anr vs Reserve Bank of India & Anr on 17 February 1999

Divyanshi, LLB. (Hons), Magadh University

INTRODUCTION

“Laws must change with society, or they will perish. Gender equality must form the cornerstone of modern legal interpretation.”

— Justice Leila Seth

As this case dealt with gender discrimination, this quote reflects the need for legal evolution to ensure equality between men and women in society.

In 1999, a landmark decision was rendered in the case of Ms Githa Hariharan & Anr vs. Reserve Bank of India & Anr (1999), where Ms Hariharan, with remarkable courage, challenged the gender-biased interpretation of guardianship laws under Hindu personal law. The case mainly concerned the interpretation of Section 6(a) of the Hindu Minority and Guardianship Act (HMGA), 1956, which named the father as the “natural guardian” of a minor child, with the mother being recognised as the natural guardian only “after” the father, implying a secondary role unless the father was disqualified or absent. Ms Githa Hariharan challenged this legal framework when the Reserve Bank of India refused to recognise her as the natural guardian of her minor son, the Act.

Ms Hariharan argued that this interpretation was unconstitutional as it discriminated against women, violating Articles 14 and 15 of the Indian Constitution, which assure equality before the law and prohibit discrimination based on gender. The Supreme Court, in a landmark and progressive ruling, reinterpreted the term “after” in Section 6(a) to mean “in the absence of” the father rather than “after the father’s lifetime.” This forward-thinking interpretation established that the mother could also be recognised as the natural guardian, even during the father’s lifetime, thus ensuring gender equality in guardianship matters.

This case is a legal milestone and a significant stride towards gender justice in personal laws. The ruling, which set a crucial precedent for the equal rights of mothers as guardians, has profoundly impacted the promotion of a more egalitarian legal system in India.¹

Facts of the Case: Ms Githa Hariharan, the appellant, had applied for certain financial investments in her minor son’s name. When she submitted the necessary forms, she mentioned herself as the natural guardian of her son. However, the Reserve Bank of India (RBI) refused to acknowledge her as the natural guardian, arguing that under Section 6(a) of the Hindu Minority and Guardianship Act (HMGA), 1956, the father is the natural guardian of a minor unless he is “absent” or is otherwise disqualified from functioning as a guardian.

The Reserve Bank’s stance implied that the father is presumed to be the primary natural guardian, and the mother can only assume that role without the father. This led Githa Hariharan to challenge the interpretation of the term “natural guardian,” arguing that it discriminated against women and violated her rights under Articles 14 (right to equality) and 15 (prohibition of prejudice on the grounds of religion, race, caste, sex, or place of childbirth) of the Constitution.

Legal Issues: The pivotal issue in this case was the constitutionality of Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which accords the father’s primary role as the natural guardian of a minor over the mother. The challenge was centred on whether the Act’s interpretation was discriminatory towards women and violated the principle of gender equality, a matter of profound legal and societal significance.

Arguments Presented:

For the Plaintiff (Ms Githa Hariharan): The plaintiff’s compelling argument underscored that the interpretation of Section 6(a) of the HMGA unfairly and unconstitutionally favours the father, disregarding the mother’s equal role as a parent and natural guardian. They contended that such an interpretation violated the rights to equality (Article 14) and non-discrimination based on gender (Article 15) of the Indian Constitution. Additionally, they argued that the term “natural guardian” should not be interpreted in a patriarchal manner that gives exclusive preference to the father unless the father is absent. Instead, both parents should have equal rights to act as guardians unless one is disqualified for specific reasons.

2. For the Defendant (Reserve Bank of India): The defendant, RBI, argued that their interpretation of the law was consistent with the statutory language. They contended that under Section 6 (a) of the Hindu Minority and Guardianship Act, the father is the natural guardian, except when absent or disqualified. They maintained that they had no legal basis to treat the mother as the natural guardian when the father was present.

Judicial Reasoning:

The Supreme Court of India took a progressive and enlightened approach to interpreting Section 6(a) of the HMGA. The key judicial question was how to interpret the word “after” in the context of the law, which stated that the mother would be the guardian “after” the father. The court’s progressive approach is a beacon of hope for gender equality in India.

Court’s Reasoning: The Court’s thorough and comprehensive reasoning held that the word “after” does not necessarily mean “after the lifetime” of the father. Instead, the Court interpreted it to mean “in the absence of the father,” which could include situations where the father cannot act as the guardian for various reasons—such as disinterest, incompetence, or mutual understanding between the parents. Therefore, the Court ruled that the mother could act as the natural guardian even during the father’s lifetime.

Statutory Interpretation: The Court’s interpretation of Section 6(a) of the HMGA in the context of the Indian Constitution’s provisions for equality and non-discrimination is a beacon of hope for the evolution of laws in changing social contexts. The Court’s emphasis on gender equality as a fundamental tenet of modern legal interpretation and rejection of an interpretation that automatically favours the father as the natural guardian is a significant step towards upholding the equality provisions enshrined in Articles 14 and 15 of the Constitution.

Dissenting Opinions: The judgment was unanimous, and there were no dissenting opinions. The Court’s reasoning, which was focused on ensuring that legal provisions are interpreted in a way that upholds constitutional values, particularly gender equality, was the prevailing view. The absence of

dissenting opinions underscores the consensus on the importance of gender equality in guardianship laws.

Legal Principles:

Fundamental Legal Principles Established:

• Equality in Guardianship: The case established that the mother and father have equal rights to be the natural guardians of their minor children, and the mother’s role is not secondary to that of the father. This principle of equality between parents and guardianship is central to the decision.
• Interpretation of “Natural Guardian”: The Court’s interpretation of the word ‘”after'” in Section 6(a) is a pivotal aspect of the judgment. By expanding the scope of when a mother can act as a guardian, the Court clarified that the father does not automatically have superior rights over the mother in guardianship matters. This interpretation promotes a more equitable view of parental rights, challenging the traditional notion that fathers are the primary guardians. Constitutional Application: The case reinforced that personal laws (including Hindu law) must be interpreted consistently with the constitutional values of equality and non-discrimination.

Application in Subsequent Cases: This judgment has been a cornerstone for subsequent cases related to guardianship and custody issues, particularly women’s rights. The principle of gender equality in parental rights has been cited in various other cases, including custody disputes, maintenance issues, and interpretations of personal laws.

Impact and Critique:

Impact on the Legal System: The ruling in Githa Hariharan had a profound effect on personal laws in India, especially in the context of Hindu law. It challenged and dismantled the patriarchal notions embedded in family law, notably the presumption that fathers are the primary guardians. By ensuring that mothers have equal rights in guardianship matters, the judgment has advanced the cause of gender equality within the Indian legal framework.

Impact on Society: The Githa Hariharan case is a legal milestone and a societal turning point in the fight against gender discrimination in family law. The judgment has empowered women to assert their rights as equal guardians of their children, and its significant societal implications are evident in the more progressive interpretations of personal laws that it has inspired.

Critical Evaluation of the Judgment: The Supreme Court’s decision in Githa Hariharan is commendable for its progressive stance on gender equality. It reflects the Court’s willingness to interpret personal laws in line with constitutional values. However, the judgment could be critiqued for not addressing the need for reform in personal laws. Instead of merely interpreting the word “after” in a more progressive manner, the Court could have used the opportunity to advocate for legislative amendments to remove patriarchal biases from the Hindu Minority and Guardianship Act altogether.

Additionally, while the judgment promotes gender equality in theory, its practical implementation in society, where patriarchal norms are deeply entrenched, remains challenging. Women in India still face significant hurdles when asserting their rights in family matters, and societal attitudes towards guardianship have not changed as rapidly as legal interpretations.

Shortcomings and Alternative Approaches: The case could have addressed the need for a broader revision of personal laws to make them more gender-neutral. Instead of focusing solely on interpreting the word “after,” the judgment could have prompted the legislature to amend Section 6(a) of the

HMGA to explicitly state that both parents have equal rights as natural guardians without any conditional language. Such an amendment would have been a more permanent and unequivocal solution to the issue of gender bias in guardianship laws.²

Conclusion:

The case of Githa Hariharan vs Reserve Bank of India is a landmark judgment that has significantly contributed to gender equality in Indian personal law. By recognising that both parents have equal guardianship rights, the Supreme Court took a progressive step towards eliminating the patriarchal bias embedded in the Hindu Minority and Guardianship Act.

The judgment’s enduring relevance lies in its emphasis on interpreting personal laws by constitutional regulations of equality and non-discrimination. It reminds us that laws, particularly personal laws, must evolve with changing societal values and cannot remain static in a modern, egalitarian society.

The case has also had a broader influence on subsequent legal interpretations and has empowered women to assert their rights as equal guardians of their children. However, societal change has been slow, and the practical realisation of these legal principles remains challenging. The case is a powerful example of how legal interpretations can promote gender equality. Still, it also highlights the ongoing need for personal law reform to realise the constitutional promise of equality fully.

References:

• Githa Hariharan & Anr vs Reserve Bank of India & Anr, (1999) 2 SCC 228
• The Hindu Minority and Guardianship Act, 1956
• Constitution of India, Articles 14 and 15
• Narain, V. (1999). Gender and Law in India. Oxford University Press.
• Basu, D.D. (2008). Commentary on the Constitution of India. LexisNexis.

1. Githa Hariharan & Anr vs Reserve Bank of India & Anr, (1999) 2 SCC 228 The Hindu Minority and Guardianship Act, 1956
   Constitution of India, Articles 14 and 15
   Basu, D.D. (2008). Commentary on the Constitution of India. LexisNexis ↩︎
2. https://www.researchgate.net/publication/369673407_Reproductive_Justice_Discourse_vis-a- vis_Abortion_Law_in_India_A_Critical_Review. ↩︎