Written in : April 1999

Cases which go to courts and get decided offer much to learn from. Case law, as we professionals call it, is where judges' interpretation of law goes. In this and the next few articles I shall discuss some important judgments of courts which have bearing on what we do in practical life.

All these years we have believed that the father of a minor child is its natural guardian. We believed that if the father is alive, the mother has no role to play as the minor's legal guardian. Not any more. The mother has acquired her rightful place in law thanks to an enterprising lady.

Gita Hariharan is an author of renown. Her husband is a scientist. She applied to the Reserve Bank of India in 1984 for Relief Bonds in her son's name for an amount of Rs.20,000. She and her husband expressly stated in the application for the Bonds that she, the mother, would act as the guardian of the minor for investments made with the money held by their minor son. She signed the application as mother and natural guardian.

The RBI replied to them that they should either submit an application signed by the father or file a certificate of guardianship certifying the mother's guardianship.

This prompted both the parents to file a writ petition in the Supreme Court seeking a ruling that the mother can be the guardian of the minor son even when the father is alive.

The couple asked that the provision in law which denies the mother her rights as a natural guardian be held to be unconstitutional as violative of her fundamental rights of equality before law.

The law which applies to such issues is the Hindu Minority and Guardianship Act of 1956. According to this law, the natural guardian of a Hindu minor is 'the father, and after him , the mother'.

In the normal manner of speaking, the phrase means that the father is the guardian and after his death the mother would be the guardian of the minor. This led to the belief in all, including the RBI in this case, that the mother was not entitled to be the guardian when the father was alive.

Our Constitution guarantees freedom of equality not only on other bases, but also on the basis of sex. No one should be discriminated against on the basis of his sex. Not even law. If law was made which was violative of any fundamental right, it would be unconstitutional. That is how this law was challenged.

The court discussed the law and said that the phrase 'and after him' did not necessarily mean after the death of the father. It said that 'after him' would mean 'in the absence of'. It also elaborated that 'absence' would mean the father's absence from the care of the minor's property or person for any reason whatsoever.

The court said that there can be various situations like these:

• the father is wholly indifferent to the matters of the minor even if he is living with the mother and the minor is in exclusive charge of the mother;
• because of mutual understanding between the father and the mother and the minor is in exclusive charge of the mother;
• the father is physically unable to take care of the minor either because he is staying away from the place where the mother and the minor are living;
• the father is physically or mentally incapacitated to take care of the minor.

In all such situations, the mother can act as a natural guardian of the minor and all her actions would be valid even during the lifetime of the father who would be considered to be absent.

The court said that if the word 'after' is meant otherwise so as to preclude the mother from being a natural guardian, it would definitely run counter to the basic requirement of the constitution and would lead to a differentiation between male and female making the law unconstitutional.

This is, by any standards, a landmark judgment and a most welcome one.

Some interesting things we should observe in the judgment. See how the court held that 'after him' means 'in absence' and then elaborated 'absence' to mean situations where the father is not 'absent' in the normal sense but in a broad sense to include inability and incapacity. This is interpretation which lesser mortals would not be capable of making or appreciating unless made by learned judges. This also shows how, by intelligent interpretation of law, courts reconcile contradicting positions.

This case offers a classic example of how judge-made law is so critical to understanding law.

It appears that Gita Hariharan and her counsel Indra Jaisingh took up the matter only to challenge the law and get mothers their rightful place in law. They have so ably succeeded and we owe them much.