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\nGuardianship Case in the Supreme Court<\/p>\n
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\nGuardianship Case in the Supreme Court<\/p>\n
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On discovering that she was not the natural guardian of her then minor son, Githa Hariharan decided to challenge the relevant sections of the Hindu Minority and Guardianship Act, 1956 and the Guardian and Wards Act, 1890 that violate the equality promised by Articles 14 and 15 of the Indian constitution. Indira Jaising and the Lawyers’ Collective filed a writ petition in the Supreme Court on behalf of Githa Hariharan and her husband, Mohan Rao.<\/p>\n
Githa Hariharan & Another vs. Reserve Bank of India & Another was heard together with Vandana Shiva v. Jayanta Bandhopadhaya, and the Bench presided over by Chief Justice A.S. Anand held in a 1999 judgment that under Hindu law, the mother is also the guardian of her minor children along with the father.<\/p>\n
<\/i> Download judgement<\/a><\/p>\nguardianship-case-judgement<\/a>\n Does the law sanction a woman\u2019s right to be a parent? This may be a facetious question, particularly in Indian society, which eulogises motherhood with every breath it takes. But this ridiculous question had to be asked because of two irrational legal provisions all Hindus are subject to — Section 6 of the Hindu Minority and Guardianship Act (1956) and Section 19 of the Guardian and Wards Act (1890). The first of these acts says that the Hindu father is the “natural guardian” of his legitimate minor son and his minor unmarried daughter. He is the guardian of the child’s “person and property” to the exclusion of the mother. The mother’s rights enter the legal picture only if the father dies; takes to vanaprastha; turns yati or sanyasi; or if a court deems him “unfit” for guardianship. Section 19 of the Guardian and Wards Act debars the court from appointing the guardian of a minor whose father is living, and is not, in the court’s opinion, unfit to be guardian. As long as this lack of fitness is not proved, the child’s welfare “rests” with the father. Taken together, legal provisions and the interpretation of various high courts have delivered the entire package of the minor’s welfare and guardianship to the father. These provisions in effect strip the mother’s right to be an equal partner in parenthood.<\/p>\n On February 17, 1999, a Supreme Court bench including the Chief Justice of India, wrote a judgement about mothers and children. The apex court ruled that \u201cit is an axiomatic truth that both the mother and father of a minor child are duty bound to take due care of the person and property of their child.\u201d In a concurrent judgement, one of the members of the same bench noted that \u201cthe father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category.\u201d<\/p>\n This was supposed to be a landmark judgement; a milestone in the struggle for women\u2019s rights. I should have felt some sense of triumph. But the truth that I could not fail to look in the eye was a simple question: are we so blind that we need the law to tell us a mother has the right to be her child\u2019s acknowledged guardian?<\/p>\n Five years ago, I discovered that though I am an adult citizen of India, a working, taxpaying citizen, a wife and a mother\u2014all things acceptable and respectable\u2014I am still not considered the \u201cnatural guardian\u201d of my child. I had applied to the Reserve Bank of India for its nine per cent relief bonds on behalf of my eleven-year-old son. I was told that only the child\u2019s father could sign the application for either purchase or repayment. My husband and I wrote to the RBI that for this purpose, we were agreed that I would function as guardian. But the response was unbending, and, we discovered, completely legal: if I wanted to sign as my child\u2019s guardian, I would have to produce a certificate from a competent authority to prove that my husband was \u201cunfit\u201d; or that he was dead; or that he had taken to\u00a0vanaprastha.<\/p>\n Consider the ironies: like any other woman, I had been brought up in a world that told you in a myriad ways that your raison d\u2019\u00eatre is motherhood. Again, like most women, I had made my peace with biological and societal expectations. But to be told that I could be considered the natural guardian of \u201cillegitimate\u201d children, not \u201clegitimate\u201d ones! And that I was legally fit only to be a caregiver, not a recognised decision-maker on matters concerning my child\u2019s welfare! How is it that the law had no problems with my paying tax on my child\u2019s income, out of a mere mother\u2019s earnings?<\/p>\n With the help of the Women\u2019s Rights Initiative programme of the Lawyers Collective, my husband and I filed a writ petition in the Supreme Court challenging the constitutional validity of the Hindu Minority and Guardianship Act (1956). Section 6 of this Act states that the mother is the natural guardian of her legitimate minor child \u201cafter\u201d the father; section 19 of the Guardian and Wards Act (1890) debars the court from appointing the guardian of a minor whose father is living, and is not, in the court\u2019s opinion, unfit to be a guardian. Together, these sections have usually been interpreted by the courts to mean that the child\u2019s welfare \u201crests\u201d with the father. The result: the mother is stripped of her right to be an equal partner in parenthood. The crux of our writ petition was the question, what disqualifies a mother from making decisions about her child\u2019s welfare? There is no social, economic, scientific or biological basis to the assumption that a woman is not capable of guardianship. And if there is no rational basis to this law, what is the sole criterion at work? The mother\u2019s gender. Did this not violate the equality promised by Articles 14 and 15 of the Constitution?<\/p>\n We were not the first to ask for a rational approach to the question of guardianship. Not only had there been numerous such cases, usually coming up for consideration when there was a custody dispute between parents; but in its 135th Report in 1989, the Law Commission concluded that these two legal provisions are unconstitutional. It recommended that both the mother and father be declared natural guardians with equal rights over the child. The Commission also recommended that the mother retain custody till the child is 12. The rationale is that the child\u2019s welfare determines questions of guardianship and custody; not rights based on gender alone.<\/p>\n Ten years after these recommendations, in 1999, in a country that is clearing its throat for futuristic talk about the millennium, the law has acknowledged, albeit in cautious terms, that the mother too can be the guardian of \u201cthe person and property\u201d of her child.<\/p>\n The law in question\u2014or the offending section\u2014has not been struck down. But the Supreme Court has reinterpreted the reading of the same law so that it alters the balance of power, which has always been tilted heavily in favour of the father in all family laws.<\/p>\n This is particularly true for matters of custody, where the \u201cnatural guardianship\u201d of the father weighed heavily with the court while granting custody orders. The judgement will enable women, for centuries effectively marginalized in the family unit by customary laws, to come out of the closet and be legally rehabilitated.<\/p>\n What does all this mean in reality, shorn of legalese and rhetoric? It means that a woman trapped in an unhappy marriage, or a violent domestic situation, need not compromise her well being and that of her child\u2019s simply out of fear of losing access to the child. It means that a mother\u2019s signature will count on application forms for school and college admissions for her child; on medical permission forms; on passport application forms. It means the mother can invest in her child\u2019s name or at least participate in decision-making about her child\u2019s financial welfare. Though conventional wisdom maintains that the father plays the primary role and the mother the supporting role in financial support of the child, certain facts about the growing financial role of mothers have now been \u201cofficially\u201d taken into account. An increasing number of women across social classes are contributing to household incomes. Since the priority of earning women is childcare, their income goes towards the children or the general good of the household\u2014this is the rationale behind various government and non-government development programmes that aim at the mother so as to cover the entire family. Across classes, women are often functioning heads of households without the title.<\/p>\n This is a first step towards visibility. The legal experience of other countries indicates that the \u201crights of parents and children\u201d do not have to be in opposition to women\u2019s rights. In England, for example, so absolute were the father\u2019s rights that \u201che could lawfully claim from the mother\u2019s possession even a child at her breast.\u201d English law has made a journey worthy of imitation from a position not unfamiliar to us. In the 1980s the emphasis shifted from parental rights to responsibility. Neither parent is \u201cprivileged\u201d in the eyes of the law as the natural or legal guardian of the child. In this sense, both mother and father have equal rights to parenthood. In India, where we are so often smug about our dedication to \u201cfamily values\u201d, we are yet to ensure that the future we travel towards will see a more egalitarian family unit. High on our agenda for the new century has to be re-appropriating women\u2019s issues from communalists, or self-serving politicians, or the crumb-throwing, paternalistic pillars of our society.[\/vc_column_text][vc_column_text]<\/p>\n Controlling Love Marriages Under The Pretext Of ‘Love-Jihad’\u00a0<\/a>\u00a0– Live Law<\/i>, March 6, 2026<\/p>\n 10 Landmarks For Women\u2019s Rights In Indian Courts<\/a> – Femina,<\/em> November 6, 2025<\/p>\n Githa Hariharan on Githa Hariharan vs RBI, Indira Jaising, and the Women\u2019s Movement<\/a> – Women in Law, Medium.com,<\/em> October 21, 2025<\/p>\n Rights And Obligations Of Guardians Under Hindu And Muslim Law<\/a> – Legal Service India,<\/em> October 30, 2024<\/p>\n Case Analysis: Githa Hariharan v. Reserve Bank of India (1999) \/ Gender Equality in Guardianship<\/a>,\u00a0Legal Bites<\/i>, September\u00a024, 2024<\/p>\n Case Study: Githa Hariharan and Another Vs. Reserve\u00a0Bank of India and Another<\/a>, Legal Wires<\/i>, June 10, 2023<\/p>\n How single moms are fighting paperwork patriarchy<\/a>, Times of India,<\/em> September 28, 2022<\/p>\n After Biological Father’s Death, Mother Can Decide Child’s Surname, Can Also Give Surname Of Her Second Husband: Supreme Court<\/a>, LawBeat,<\/em> July 29, 2022<\/p>\n Mother Being Natural Guardian Can Decide Child’s Surname”: Supreme Court<\/a>, NDTV,<\/em> July 28, 2022<\/p>\n Mother being only natural guardian has right to decide child’s surname: SC<\/a>, The Siasat Daily,<\/em> July 28, 2022<\/p>\n Mother being only natural guardian has right to decide child’s surname: SC<\/a>, Deccan Herald,<\/em> July 28, 2022<\/p>\n Gujarat HC Grants Custody Of 4-Yr-Old To Mother In Writ Jurisdiction, Suspends Father’s Visitation Rights For 6 Months Citing Unruly Behaviour.<\/a> Live Law.<\/em> May 14, 2022<\/p>\n The rules around guardianship of minors,<\/a> The Hindu,<\/em> March 9, 2022<\/p>\n Guardianship under Hindu family law framework: analysis from a gendered perspective,<\/a> The Leaflet,<\/em> March 8, 2022<\/p>\n Want mother\u2019s name on documents? Get ready for the runaround,<\/a> The Hindu,<\/em> 07 March, 2022<\/p>\n Allahabad High Court Allows Mother’s Habeas Corpus Plea Seeking Child’s Custody From Father<\/a>, LiveLaw, <\/em> February 22, 2021<\/p>\n Women and Guardianship: Dear Mr. Shakespeare, the question to ask is \u2018What\u2019s in a man\u2019s name?\u2019<\/a>, The Leaflet,<\/em> September 19, 2020<\/p>\n Towards gender equality in guardianship<\/a>, The Telegraph, <\/em> November 28, 2019<\/p>\n A blow to patriarchy<\/a>, The BusinessLine, <\/em>December 24, 2018<\/p>\n Women Respond to Madras HC Judgement: Father\u2019s Name not Required in Birth Certificates<\/a>, Indian Cultural Forum, <\/em>July 18, 2018<\/p>\n Mother should be natural guardian, not father, says WCD ministry,<\/a> The Indian Express, <\/em>2017<\/p>\n Law Panel For Joint Custody of Child in Divorce Cases<\/a>, NDTV, <\/em>2015<\/p>\n It\u2019s sad we needed the law to tell us that the mother\u2019s a natural guardian,<\/a> The Times of India<\/em>, 2015<\/p>\n What Women Want,<\/a> Mint<\/em>, 2014<\/p>\n Mother of all Battles,<\/a> Telegraph<\/em>, 2012<\/p>\n Who\u2019s the Natural Guardian?,<\/a> Femina <\/em>2012<\/p>\n Partners in Parenthood,<\/a> The Hindu<\/em>, 2010<\/p>\n The Rediff Interview,<\/a> 1999<\/p>\n
\nGitha Hariharan wrote on the case in 1999:<\/em><\/h2>\n
In the media<\/h2>\n