Mother can be guardian when father alive but not involved-Githa Hariharan vs Reserve Bank Of India-S

[Githa Hariharan vs Reserve Bank Of India-SC 1999](https://indiankanoon.org/doc/1241462/\

Facts of case

1. When appeal came to SC, a divorce case was pending in district court of Delhi between spouses, and also mother had asked for custody of minor son in same petition.

2. The mother had applied to RBI (Reserve Bank of India) for bonds to be purchased in name of minor son, but RBI refused saying that father's signature on application form were a must (since that was presumably bank's policy that father is considered natural guardian of child).

3. RBI also gave an alternative that mother can produce a certificate of guardianship of child from a competent court.

4. Mother had challenged this requirement of signature of father stating that she was taking care of minor son, and on point of law, a challenge was made to the HMGA, 1956 provision which states that father is considered natural guardian of child, and thereafter mother. Read Section on Guardianship in Ch 1.

Points of law raised

1. Whether the provision in HMGA, 1956 that a father must be considered natural guardian and not the mother is as per the legislative intent of various guardianship laws, and whether such an interpretation violates the constitutional principle of equality before law to both genders.

Part of HMGA 1956, which was challenged for constitutionality:

Natural guardians of a Hindu minor.—The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family 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;

Points of law decided

1. SC held that the word "after" in above section of HMGA, 1956 should be interpreted in a wider sense to mean not only that mother becomes natural guardian of child after father is no more; but also that mother can be considered natural guardian of child if father is alive but not involved in life of or taking care of the minor.

Points of law reiterated

1. Welfare of child is the main criterion.

Facts held important in case

1. It is not explicitly stated by court but it is presumed that court agreed that mother was primarily taking care of child and father was not involved much in child's life.

Comments

1. Though it is commonly argued point in legal proceedings that "father is the natural guardian of child", practically speaking that part of statute is more of theory than of real value in custody and guardianship cases. Courts primarily tend to see welfare of child as main criterion and merely stating "father is natural guardian" will be of ritualistic effect unless there is good evidence of father's contribution and role in child's upbringing and needs of child. This point can be there in petition and arguments but it has little value in absence of real evidence.

2. In this case too, it is alleged that father was showing total apathy to child and was merely stating his rights to be natural guardian. This judgment by SC set a precedent taking away effect of statutory law where father was considered primary guardian of child.