TaxTMI 
TaxTMI 
1999 (2) TMI 64
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....ab Bailey, for Rs. 20,000. They stated expressly that both of them agreed that the mother of the child, i.e., the first petitioner, would act as the guardian of the minor for the purpose of investments made with the money held by their minor son. Accordingly, in the prescribed form of application, the first petitioner signed as the guardian of the minor. The first respondent replied to the petitioners advising them either to produce the application form signed by the father of the minor or a certificate of guardianship from a competent authority in favour of the mother. That led to the filing of this writ petition by the two petitioners with prayers to strike down section 6(a) of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as "the HMG Act"), and section 19(b) of the Guardians and Wards Act, 1890 (hereinafter referred to as "the GW Act"), as violative of articles 14 and 15 of the Constitution and to quash and set aside the decision of the first respondent refusing to accept the deposit from the petitioners and to issue a mandamus directing the acceptance of the same after declaring the first petitioner as the natural guardian of the minor. In the counter....
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....r, the father ; (c) in the case of a married girl---the husband Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section--- (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.---In this section, the expressions 'father' and 'mother' do not include a step-father and a step-mother." The expression "natural guardian" is defined in section 4(c) of the HMG Act as any of the guardians mentioned in section 6 of the HMG Act. The term "guardian" is defined in section 4(b) of the HMG Act as a person having the care of the person of a minor or of his property or of both, his person and property, and includes a natural guardian among others. Thus, it is seen that the definitions of "guardian" and "natural guardian" do not make any discrimination against mother and she being one of the guardians mentioned in section 6 would undoubtedly be a natural guardian as defined in section 4(c). The only provision to which exception is taken is found in section 6(a) which reads "the father, and after him, the m....
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....efer the latter on the ground that the Legislature is presumed to have acted in accordance with the Constitution and courts generally lean in favour of the constitutionality of the statutory provisions. We are of the view that section 6(a) is capable of such construction as would retain it within the constitutional limits. The word "after" need not necessarily mean "after the lifetime". In the context in which it appears in section 6(a), it means "in the absence of", the word "absence" therein referring to the father's absence from the care of the minor's property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognized natural guardian, can act validly on behalf of the m....
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....from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor-appellant was concerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956), the mother is the natural guardian after the father. The above Act came into force on August 25, 1956, and under section 6 the natural guardians of the Hindu minor in respect of the minor's person as well as the minor's property are the father and after him the mother. The position in Hindu law before the enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian, But on the facts found above the mot....
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....ve but had fallen out with the mother of the minor child and was living separately for several years without taking any interest in the affairs of the minor, who was in the keeping and care of the mother, it was held that, in the peculiar circumstances, the father should be treated as if non-existent and, therefore, the mother could be considered as the natural guardian of the minor's person as well as property, having power to bind the minor by dealing with her immovable property." Distinguishing the facts in Jijabai Vithalrao Gajre v. Pathankhan [1970] 2 SCC 717; AIR 1971 SC 315, the court observed that there was no evidence to show that the father of the minor-respondents was not taking any interest in their affairs or that they were keeping in the care of the mother to the exclusion of the father. An inference was drawn from the factum of attestation of the sale deed that the father was very much "present" and in the picture. The Bench held that the sale by the mother notwithstanding the fact that the father had attested the deed, could not be held to be a sale by the father and natural guardian, satisfying the requirements of section 8. Confirming the decree of the courts be....
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.... hold that in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother, can act as natural guardian of the minor and all her actions would be valid even during the lifetime of the father, who would be deemed to be "absent" for the purposes of section 6(a) of HMG Act and section 19(b) of the GW Act. Hence, the Reserve Bank of India was not right in insisting upon an application signed by the father or an order of the court in order to open a deposit account in the name of the minor particularly when there was already a letter jointly written by both petitioners evidencing their mutual agreement. The Reserve Bank now ought to accept the application filed by the mother. We are conscious of the fact that till now many transactions may have been invalidated on the ground that the mother is not a natural guardian, when the father is alive. Those ....
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....ers at this juncture. The facts in W. P. (C.) No. 489 of 1995 can be stated as below : The petitioner and Dr. Mohan Ram, were married at Bangalore in 1982 and in July, 1984, a son named Rishab Bailey was born to them. In December, 1984, the petitioner applied to the Reserve Bank of India for 9 per cent. Relief Bonds to be held in the name of their minor son Rishab along with an intimation that petitioner No. 1 being the mother, would act as the natural guardian for the purposes of investments. The application however was sent back to the petitioner by the Reserve Bank of India authority advising her to produce the application signed by the father and in the alternative the bank informed that a certificate of guardianship from a competent authority in her favour, ought to be forwarded to the bank forthwith so as to enable the bank to issue bonds as requested and it is this communication from the Reserve Bank of India authorities, which is stated to be arbitrary and opposed to the basic concept of justice in this petition under article 32 of the Constitution challenging the validity of section 6 of the Act as indicated above. The factual backdrop in W. P. (C.) No. 1016 of 1991 ce....
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....set out hereinbelow : "6. Natural guardians of a Hindu minor.---The natural guardians 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 ; (b) in the case of an illegitimate boy or an illegitimate unmarried girl---the mother, and after her, the father ; (c) in the case of a married girl---the husband Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions this section--- (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.---In this section, the expressions 'father' and 'mother' do not include a step-father and a step-mother." Be it noted that the Hindu Minority and Guardianship Act of 1956, has been engrafted on the statute book by way of an amendment and codification of ce....
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.... not only in the old Hindu law as laid down by the smritis, shrutis and the commentaries as recognised by the courts of law but also statutes applicable amongst others to Hindus, to wit, the Guardians and Wards Act of 1890 and the Indian Majority Act of 1875. Be it further noted that the Act of 1956, does not as a matter of fact in any way run counter to the earlier statutes on the subject but they are supplemental to each other as reflected in section 2 of the Act of 1956 itself which provides that the Act shall be in addition to and not in derogation of the Acts as noticed above. Before proceeding further, however, on the provisions of the Act in its true perspective, it is convenient to note that lately the Indian courts following the rule of equality as administered in England have refused to give effect to inflexible application of paternal right of minor children. In equity, a discretionary power has been exercised to control the father's or guardian's legal rights of custody, where exercise of such right cannot but be termed to be capricious or whimsical in nature or would materially interfere with the happiness and the welfare of the child. Mc Grath, In re [1893] 1 Ch. 14....
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....951, onwards the mother in the usual course of management had been leasing out the properties of the appellant to the tenant. Though from 1951 to 1956, the leases were oral, for the year 1956-57, a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was nonexistent so far as the minor appellant was concerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956), the mother is the natural guardian after the father. The above Act came into force on August 25, 1956, and under section 6 the natural guardians of a Hindu minor in respect of the minor's person as well as the minor's property are the father and after him the mother. The position in the Hindu law before this enactment was also the same. That is why we have stated that normally when the father is ali....
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....s only in the event of death of the father, the mother obtains such a right to act as a natural guardian of a Hindu minor. It is this interpretation which has been ascribed to be having a gender bias and thus opposed to the constitutional provision. It has been contended that the classification is based on marital status depriving a mother's guardianship of a child during the lifetime of the father which also cannot but be stated to be a prohibited marker under article 15 of the Constitution. The whole tenor of the Act of 1956, is to protect the welfare of the child and as such the interpretation ought to be in consonance with the legislative intent in engrafting the statute on the statute book and not de hors the same and it is on this perspective that the word "after" appearing in section 6(a) shall have to lye interpreted. It is now a settled law that a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided unless of course, the same makes a violent departure from the legislative intent---in the event of which a wider debate may be had having due reference to the contextual facts. The contextual facts in the decision noticed a....
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.... of the person and the property of their child and thus having due regard to the meaning attributed to the word "guardian" both the parents ought to be treated as guardians of the minor. As a matter of fact the same was the situation as regards the law prior to the codification by the Act of 1956. The law, therefore, recognised that a minor has to be in the custody of the person who can subserve his welfare in the best possible way---the interest of the child being the paramount consideration. The expression "natural guardian" has been defined in section 4(c) as noticed above to mean any of the guardians as mentioned in section 6 of the Act of 1956. This section refers to three classes of guardians, viz., father, mother and in the case of a married girl, the husband. The father and mother, therefore, are natural guardians in terms of the provisions of section 6 read with section 4(c). Incidentally, it is to be noted that in the matter of interpretation of statutes the same meaning ought to be attributed to the same word used by the statute as per the definition section. In the event the word "guardian" in the definition section means and implies both the parents, the same meaning....