No Legal Rationale for Primacy – Revisiting Section 6(a) of the Hindu Minority and Guardianship Act, 1956

Introduction

यत्रनार्यस्तुपूज्यन्तेरमन्तेतत्रदेवता:

यत्रैतास्तुनपूज्यन्तेसर्वास्तत्राफला: क्रिया: ।।

Where Women Are Honored, Divinity Blossoms There;

And Where They Are Dishonored, All Action Remains Unfruitful.

— Manu Smriti III.55-59

In November 2019, the Supreme Court issued notice to the Centre seeking its response to a public interest litigation filed by Sakshi Bhattacharya challenging Sections 6, 7 and 9 of the Hindu Minority and Guardianship Act, 1956.[1] The petitioner said:

The Act came into force in 1956 when men exercised more financial power and social sanction to control and dominate women and children in a family.”[2]

In this background, the authors shall revisit the law regarding the natural guardian under Section 6(a) of the Hindu Minority and Guardianship Act, 1956[3].

‘Ardhangini (अर्धांगिनी)’, the status conferred upon the wives is in glaring contrast to the discriminatory treatment meted out to them in the past. India as a progressive State has enacted special laws for granting and protecting women’s rights in different spheres of their lives. Nonetheless, there still remain several laws which need to be revisited so as to bring them in tune with the contemporary socio-economic setting of our country.

Section 6(a) of the Hindu Minority and Guardianship Act, 1956 stipulates that the father shall be the natural guardian of a boy or an unmarried girl:

6. 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…”

It is our perspective that there is no plausible explanation as to why a father is the first to be given the status of a natural guardian, and the mother as a natural guardian is to be considered after him. We shall now refer to the relevant sources to provide substance to our perspective.

Sources of Hindu Law – Texts and Scriptures

Scrutiny of any facet of Hindu Law is not complete without referring the ancient Hindu scriptures. Mothers or wives in the scriptures have always been held in very high regard in our scriptures. Marriage is the sacrament performed by two heterosexuals where both contribute.

Ancient religious texts have always maintained that both mother and father have crucial roles in the birth and upbringing of a child. No ancient text considers the father’s contribution to the child as more important than the mother’s contribution.

In the Puranas and Manusmriti, the contribution of parents to a child is summarised:

No Deva can equal the mother and no superior can equal one’s father. Hence, no son can get relieved of the debt he owes to them.[4]

No person can repay his parents even in 100 years for all the troubles that they go through to give birth to him and raise him to adulthood. Therefore, always try to do whatever pleases your parents and your teacher, because only then does any religious worship done by you will bear any fruit.”[5]

In Mahabharata, Great Bheeshma said:

The teacher who teaches true knowledge is more important than ten instructors. The father is more important than ten such teachers of true knowledge and the mother is more important than ten such fathers. There is no greater guru than mother.[6]

In the Vedas they have been referred with different designations:

Aditi (अदिति), because she is not dependent;[7] Devī (देवी), since she is divine;[8] Kshamā (क्षमा), for she is tolerant/indulgent/patient;[9] Subhdhā (शुभदा), for she is knowledgeable;[10] Vishrutā (विश्रुता), since she is learned;[11] Yoşhā (योषा), because she is intermingled with man, she is not separate;[12] Simhī (सिम्हि), since she is courageous;[13] Menā (मीना), because she deserves respect;[14]and Idā (इदा), for she is worshipable[15] and many more.

Certainly, our texts consider the role of women or mother to be of paramount importance. Women or mother contributes to the growth of an individual and prosperity of the entire family.  When the sources of Hindu Law have regarded mother’s contribution to a child’s growth and development as important as the father’s contribution, it is untenable to give primacy to the father over mother as the natural guardian of a boy or an unmarried girl.

Judicial Interpretation

Judiciary has interpreted Section 6(a) to reconcile it with the rights and interests of a mother. The issue of natural guardian and gender discrimination was first raised in Githa Hariharan v. RBI[16] where the word “after” was interpreted in a liberal way to rule that the word “after” has no significance in the section because in  cases of custody and guardianship, the court follows the doctrine of best interest of the child . Interpreting “after” as “after the lifetime” of father would be unconstitutional as it violates the principle of gender equality enshrined in our Constitution.

The word “after” does not mean “in the physical absence of the father”. The word “after” means – “absence” of the father from the care of the children, property or person; father is indifferent to the matters of children even if he is living with the mother; father is not known; father is not mentally fit or not in a situation to take care of the child. In cases like these, father can be considered to be absent and mother can be recognised as a natural guardian.

The doctrine of best interest of the child was earlier considered in  Jijabai Vithalrao Gajre v. Pathankhan ,[17]where the mother was considered to be a natural guardian of the daughter because the father had failed in his responsibility of taking care of her daughter ever since she was born.

Undeniably, judiciary having regard to the best interest of the child has relaxed the conditions for giving status of natural guardian to the mother. However, it is only when the factors laid down in the Githa Hariharan[18] case are fulfilled that a mother will be given the status of a natural guardian.

The presumption that the father is the natural guardian under Section 6(a) still remains, though such a presumption is rebuttable with regards to the circumstances of the case.

Transgression of Constitutional Provisions

Articles 14 and  15

Article 14 bars discrimination and prohibits discriminatory laws. It only means that all persons in similar circumstances shall be treated alike both in  privilege, comfort and liability imposed by the laws  or should be applied to all in the same situation and there should be no discrimination between one person and another. As regards the subject-matter of the legislation their position is the same.[19]

Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of achieving specific ends. The classification in order to be reasonable should fulfil the following tests:

  1. There must be intelligible differentia for classification which discriminates persons from others; and
  2. The differentia must have a rational or reasonable nexus with the object sought to be achieved by the Act.[20]

Clause (1) of Article 15 provides: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex and place of birth or any of them.” The word ‘discrimination’ means to make an adverse distinction or distinguish unfavourable from others.[21] Article 15 provides for a particular application of a general principle that has been enshrined under Article 14.[22] Just as the principle of classification applies to Article 14 so it does to Article 15(1) as well.[23]

The main objective of the Act is the ‘Welfare of the Minor’.[24] Section 6(a) violates Articles 14 and 15 since primacy of father over mother as the natural guardian has no reasonable nexus with the objective of the ‘Welfare of the Minor’. It is baseless to presume without any reasonable justification that ‘Welfare’ is guaranteed in under the guardianship of father.

‘Welfare’ is to be understood in its widest sense and embraces not merely the material and physical well-being of the minor and happiness, but every circumstance and bearing upon the moral and religious welfare and the education and upbringing of the minor.[25] ‘Welfare’ encompasses such a myriad range of factors that it is essential to examine in each case who is in a better position to be the natural guardian. Hence, the primacy of one parent over the other does not stand the test of reasoning.

Article 21

Right to life and personal liberty are inalienable rights which have been enshrined in Article 21. These are rights which are inseparable from a dignified human existence. The  Supreme Court has been liberal in interpretation of Article 21 to include right to live with human dignity;[26] right against illegal detention;[27] right to legal aid;[28] right against sexual harassment at workplace;[29] right to speedy trial;[30] right to die with dignity;[31] right to privacy;[32] and many other rights.

In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi,[33] the Supreme Court dealt with a matter concerning the right of the detenu under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, to have an interview with a lawyer and the members of his family. The Supreme Court held that personal liberty also includes the right to socialise with the members of the family and friends:

There can therefore be no doubt that personal liberty would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary.”

In the contemporary socio-legal background, it can be thus be argued that the Right to Guardianship of a child falls within the purview of right to life and liberty and a parent cannot be deprived of this right without any reasonable justification.

Law Commission on Section 6 of the Hindu Minority and Guardianship Act, 1956

The Law Commission of India in its 257th Report on ‘Reforms in Guardianship and Custody Laws in India[34]  had recommended amendments in Section 6 to bring it tune with the tenet of equality enshrined in Article 14 of the Constitution. While reaffirming the recommendations of its 133rd Report[35] wherein it had made a case for removal of superiority of one parent over the other, it recommended that the Doctrine of Welfare of Children should be followed and must be the paramount consideration in every circumstance, both the father and the mother should be regarded simultaneously as the natural guardians of a minor.

Jurisprudence of Natural Guardian in English Law

The Guardianship Act, 1973 which is the legislation of England and Wales is gender-neutral, in Section 1 of Part I which talks about equality in parental rights. Section 1(1) says:

1. Equality of parental rights. – (1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other.”

(emphasis supplied)

English Law is impartial and more progressive than the Indian Law. Under English Law, a mother has the same rights as the father in matters concerning the custody or upbringing which is certainly not the case under Indian Law.

Conclusion

The Hindu Minority and Guardianship Act, 1956 Act was enacted in the then prevailing existing socio-economic setting in the country. The enactment of the laws, particularly the laws affecting family affairs is always affected by existing social setting of the country. On the basis of available legislative, judicial and other authoritative material difficult, it is difficult to say if the primacy of father as the natural guardian in Section 6(a) is directly linked to the assumption that men in most cases are the bread earners of their families and are thus better equipped financially to fulfil their responsibility as the natural guardian. However, this assumption would have played a part in the drafting of Section 6(a).

Drafting of such an important section in an Act should not in any case be only linked to the economic status of the parents for two major reasons. Firstly, the assumption that only men are breadwinners of their respective families is an outdated assumption. Our country has come a long in granting women their rights in various spheres of life and increasing women participation in various areas of employment.

Secondly, while appointing the natural guardian, the ‘Welfare of the Child’ is of paramount importance for the court. ‘Welfare of the Child’ encompasses a range of factors and is not limited to the economic status of the father or the mother.

From the constitutional perspective, it is expected that the Supreme Court in its role as the guardian of fundamental rights shall declare Section 6(a) unconstitutional pursuant to the PIL filed by Sakshi Bhattacharya.


Palak Maheshwari, 3rd Year, BA LLB (Hons.), Maharashtra National Law University, Nagpur.

††Aniket Pandey, 4th Year, B.ALLB (Hons.), Maharashtra National Law University, Nagpur.

[1] Sakshi Bhattacharya v. Union of India, WP (Civil) No. 1290 of 2019, order dated 13-11-2019

[2] Times of India, “Why Guardianship Act prefers father as natural guardian: PIL”, available at

https://timesofindia.indiatimes.com/india/why-guardianship-act-prefers-father-as-natural-guardian-pil/articleshow/72047088.cms.

[3] The Hindu Minority and Guardianship Act, 1956

http://www.scconline.com/DocumentLink/64flHLFr

[4]KūrmaPurāņa 2.12.36.

[5]Manusmṛti 2.227-228

[6]Mahabharata, Shantiparva, 30.9.

[7]Nirukta, 4/22.

[8]Atharva Veda 14/1/45, Yajur Veda 4/23.

[9]Atharva Veda 12/1/29.

[10]Atharva Veda 14/2.75.

[11]Yajur Veda 8/43.

[12]Nirukta 3/15/1.

[13]Yajur Veda 5/12.

[14]Nirukta 3/21/2.

[15]Yajur Veda 8/43.

[16]Githa Hariharan v. RBI, (1999)2 SCC 228.

[17]Jijabai Vithalrao Gajre v. Pathankhan, (1970) 2 SCC 717.

[18] (1999)2 SCC 228

[19] State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284.

[20]Laxmi Khandsari v. State of Uttar Pradesh, (1981) 2 SCC 600.

[21] Srinivasa Aiyer v. Saraswathi Ammal, 1951 SCC OnLine Mad 272.

[22] M.P. Jain, Indian Constitutional Law 987 (Justice Ruma Pal & Samaraditya Pal eds., 6th Edn., 2013).

[23] M.P. Jain, Indian Constitutional Law 988 (Justice Ruma Pal & Samaraditya Pal eds., 6th Edn., 2013).

[24] Mohini v. Virendra Kumar, (1977)3 SCC 513

Gaurav Nagpal v. Sumedha Nagpal, (2009)1 SCC 42.

See also Sir Dinshaw Fardunji Mulla, Mulla Hindu Law 1300 (23rd Edn., 2017).

[25]In re McGrath, [1893] 1 Ch 143. See also Sir Dinshaw Fardunji Mulla, Mulla Hindu Law 1300 (23rd Edn., 2017).

[26]Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[27] D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.

[28]Hussainara Khatoon v.  State of Bihar, (1980) 1 SCC 98.

[29]Vishakha v. State of Rajasthan, (1997) 6 SCC 241.

[30]Hussainara Khatoon v.  State of Bihar, (1980) 1 SCC 98.

[31] Common Cause  v. Union of India, (2018) 5 SCC 1.

[32]  K.S. Puttuswamy  v. Union of India, (2019)1 SCC 1.

[33]Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, (1981) 1 SCC 608.

[34]257th Report of Law Commission of India on Reforms in Guardianship and Custody Laws in India

[35] 133rd Report of Law Commission of India on Removal of Discrimination against Women in Matters Relating to Guardianship and Custody of Minor Children and Elaboration of the Welfare Principle

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