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(AIR 1999, 2 SCC 228)


Dr. Ramesh Kumar Singh ChiranjivJain

Anand CJI, Srinivasan J, Banerjee J


For the Petitioners: Indira Jaising (Senior Advocate), Sanjay Parikh, Anitha Shenoy, Sanjoy Ghosh and
Abinash Kumar Misra (Advocates)

For the Respondent: H N Salve (Senior Advocate), HS Parihar, Kuldeep S Parihar, Ajit Pudussery and S
K Sucharita (Advocates)


The first petitioner Ms. Githa Hariharan got married to Dr. Mohan Ram in 1982 in Bangalore.
In July of 1984, they have a child named Rishabh Bailey out of the wedlock. In December of
1984, the petitioner applied jointly to the Reserve Bank of India (RBI) for 9% Relief Bond to
be held in the name of her minor son for Rs. 20,000. The petitioner, being the mother of the
child, applied to be the natural guardian of the minor in relation to the administration of the
money held in her son’s name for investment purposes.

The Reserve Bank of India returned the application stating that the petitioner should either
get the application signed by the father in place of guardian’s name or a certificate of
guardianship from a government authority in her favour to issue the bonds as requested by
the petitioner.

This petition was also related to a petition for the custody of the child after the divorce as the
proceedings were going on the District Court of Delhi. The husband filed for the custody in
the proceedings. The wife filed an application for maintenance of her and the child stating
that he had shown total lack of interest towards the minor son and was not interested in the
welfare of the child. He was only claiming the right to be the natural guardian of the child
without giving any care and maintenance to the child.

On these facts stated above the petitioner asks for an announcement that the provision of S.
6(a) of the Hindu Minority and Guardianship Act, 1956 along with S. 19(b) of the Guardian
Constitution and Wards Act violated Article 14 and 15 of the Constitution of India.

1. Is S. 6(a) of the Hindu Minority and Guardianship Act, 1956 unconstitutional?

2. Is S. 19(b) of Guardian Constitution and Wards Act, 1879 unconstituttional?
3. Article 14 (Equality Before the law) and Article 15 (Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth) of Constitution of India is being

The applicant argued that the communication from the Reserve Bank of India is arbitrary and
was opposed to the basic concept of justice under Article 32 of the constitution. They
therefore challenged the constitutionality of S. 6(a) of the Hindu Minority and Guardianship
Act, 1956. Further it was argued that the provisions of S. 6(a) of the act seriously
disadvantage women in the matters of the of guardianship rights, responsibilities and
authority in relation to their own children.

Taking note of Gajre v. Panthankham (1970 SCC 717) in which he had taken no interest in
the affairs of the child and considered the mother as the natural guardian. So as the Hindu
Law and the Act that says that the father is the natural guardian and after him the mother will
be but in the above case the court held the opposite.
He concluded that ascribing the literal meaning to the word “after” cannot arise having due
regard to the object of the act and the constitutional guarantee of gender equality, since any
other interpretation would make the section to be void and which has to be avoided.
Therefore, he dismissed the petition regarding the constitutionality of the Act directed the
Reserve Bank of India (RBI) to formulate appropriate methodology in the light of his
observations. He also told the District Court of Delhi in which the divorce case proceedings
were going on to take account of his comments when considering custody and guardianship
of the minor child.

Through the above case it is clear that there is no total truth like the father is the only natural
guardian of the minor child it can be the mother too if father is present or not.
The guardianship of the minor child should be given to the person whosoever is capable of
and available for taking care of the child and is deeply interested in the welfare of the child,
and that not necessarily be the father.
Although there are laws which tells that according to the gender of the minor who should be
the natural guardian but it’s not the wholly correct thing there has to be some parameters to
be checked too before giving the custody to anyone like if he/she is capable of taking it and is
interested I the affairs of the child.

1. Jijabai Vithalrao Gajre v. Pathankhan & Ors (1971 AIR 315, 1971 SCR (2) 1)
2. Sundara Murthy v. Shanmuga Nadar AIR 1980 Mad 207
3. Ramchandra v. Annapoorni AIR 194 Ker 269
4. Michayel Nadar v. Sreedharan Babu 1992 (2) HLR 17 (Ker.)
5. R. Sudha v. Shanmugam and Others (S.A.No. 469 of 2011 & M.P.No. 1 of 2011)