The Constitutional Validity of S.6 of The Hindu Minority and Guardianship Act, 1956

Research Question:

Whether S.6 of The Hindu Minority and Guardianship Act, 1956 is constitutionally valid?

Section 6 of the Hindu Minority and Guardianship Act,1956

Section 6 of the HMGA, 1956 deals with the natural guardians of a Hindu minor with respect to both their person and property. This section deals with different categories of people distinguished based on specific characteristics such as:

1. a minor boy and unmarried minor girl,
2. children below the age of five,
3. illegitimate children and
4. a married minor girl.

Each of these categorizations contain in them gender biases. The broad categories are explained and analyzed below:

i. Minor boy and unmarried minor girl

6(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;[1]

This subsection was one of the most controversial areas of the act. The words the “father and after him the mother” was the point of discussion. This basically states that the father is the natural guardian and after him the mother is eligible for the same.

The meaning of the words ‘after him’ was explained in the case of Gita Hariharan v. RBI[2]. The brief facts of the case were that the petitioner was the mother of one Rishab and had submitted an application for RBI Relief bonds in her capacity as the guardian of her minor son. The RBI disallowed the application, and stated that an application signed by the natural guardian is required for acceptance of the application. In this case Rishab’s father is the natural guardian according to Section 6(a) of the Hindu Minority and Guardianship Act, 1956. As a result, the petitioner decided to challenge this provision as discriminatory and filed a case in the Supreme Court stating that it was violative of Article 14 and Article 15 of the Indian Constitution.

The apex court held that the provisions were indeed discriminatory. The bench also expressed that the words “after the father” should not be taken in a narrow sense but a wider interpretation is required. It should be understood as “in absence of father”. This absence can be temporary or permanent. It can also be total indifference from the father’s child with respect to his child’s life -due to any sickness or otherwise. In all these situations, the mother would be considered as the natural guardian of the child.

Thus, this issue is considered solved by the judiciary and the law makers. The real problem is, even in the aforementioned decision the interpretation given by the apex court is that ‘after the father’ should be considered as in the ‘absence of father’. This fundamentally gives impression that only in the absence of the father the mother is considered. Be it because the father is not involved in the child’s life or if he has passed away.

In the case of Jijabai Vithalrao Gajre v. Pathankhan[3] the mother was given the status of a natural guardian because the father had failed to perform any of his duties ever since the child was born.

These judicial precedents despite trying to solve the problem, have not rooted out the cause. The judgments didn’t put forward that both the parents are natural guardians from the moment the child is born. They have pointed out that the mother can also be a natural guardian but the aforementioned conditions from the Gita Hariharan case have to be fulfilled for the same. Thus, it has not provided them the equal status in the law books.

ii. Child below age of five

In the case of children below the age of five, the guardianship is naturally given to the mother as it is assumed that they would be in a better position to take care of the child. This may be true in most cases but even for a child below the age of five, the welfare of the child should be paramount and whether the mother is capable should be considered.

iii. Illegitimate children

6(b) - in the case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father;[4]

The concept of illegitimate children being the children of their mothers but not the responsibility of their fathers exists in almost all the personal laws of our country. The capability of both the parents are to be examined before choosing a guardian on default. This bias of considering the illegitimate child as only the child of the mother has many social and legal issues connected with it. Through judicial decisions the status of a illegitimate children is far better than it used to be. Regardless the letter of the law is to be amended to be more inclusive.

iv. Married minor girl

6(c) - in the case of a married girl—the husband[5]

Yet again a controversial provision is S.6(c). This section regards the husband of a married minor girl as her guardian. The obvious issue is its contradiction with the Prohibition of Child Marriage Act, 2006. Since child marriage is considered a voidable marriage at the option of the parties and not a void marriage, this section and similar ones have survived.

Welfare of the Child:

Section 13 of the Hindu Minority and Guardianship Act,1956 is of utmost importance as it deliberates upon the welfare principle. It states that ‘the welfare of the minor shall be the paramount consideration’[6]. It is often contended that Section 6 of the act need not be considered discriminatory as it is always read with Section 13. No decision would be made in contrary to the welfare of the minor by the courts.

This argument takes away the essence of the topic at hand because the issue here is the letter of the law and how it is violative of the values enshrined in the Constitution.

Transgression of Constitutional Provisions

1. Article 14 - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.[7]

Article 14 prohibits class legislation but it does not forbid reasonable classification. In the case of State of West Bengal v. Anwar Ali Sarkar[8] the Supreme Court laid out the twin test for reasonable classification for Article 14.

• There must be intelligible differentia for classification which discriminates persons from others and
• The differentia must have a reasonable nexus with the object sought to be achieved by the act.[9]

2. Article 15(1) - The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them[10]

The privilege and preference given to the father as the natural guardian violates both the above-mentioned articles. The values of equality enshrined in the Constitution is sullied. The welfare concept is considered paramount and there is no absolute assurance that the welfare of the child’s automatically guaranteed under the guardianship of the father. For these reasons, there is no intelligible differentia or is there any reasonable nexus with the object sought to be achieved by the act through the differentia. The provision thus fails the twin test for reasonable classification.

257^th Law Commission Report

The Law Commission of India in its 257^th report proposed amendments to Section 6 of the Hindu Minority and Guardianship Act, 1956 in order to align it with the principle of equality enshrined in Article 14 of the Constitution. The Commission reiterated its earlier recommendation from the 133^rd Report to eliminate the superiority of one parent over the other, and suggested that the Doctrine of Welfare of Children should be prioritized as the primary consideration in all circumstances. The Commission further recommended that both the father and the mother should be recognized as natural guardians of a minor at the same time.

Conclusion

As mentioned earlier, the mentioned judicial precedents despite trying to solve the problem, have not rooted out the cause. The judgments didn’t put forward that both the parents are natural guardians from the moment the child is born. They have pointed out that the mother can also be a natural guardian but the conditions specified in the Gita Hariharan case have to be fulfilled for the same. Thus, it has not provided them the equal status in the law books.

The Law Commission Report shows that the letter of the law is clearly against the provisions of the Indian Constitution. Even though judicial precedents try to set the narrative straight according to dynamic changes of the society and what it needs, amendments have to be made in the act itself for further clarity.

[1] Hindu Minority and Guardianship Act, 1956, §6(a)

[2] (AIR 1999 SC 1149)

[3] (1970 2 SCC 717)

[4] Hindu Minority and Guardianship Act,1956, §6(b)

[5] Hindu Minority and Guardianship Act,1956, §6(c)

[6] Hindu Minority and Guardianship Act,1956, §13(a)

[7] INDIA CONST. art. 14

[8] 1952 SCR 284

[9] No legal rationale for primacy – revisiting section 6(a) of the Hindu Minority and Guardianship Act, 1956. (n.d.). Retrieved April 13, 2023, from https://www.scconline.com/blog/post/2020/11/07/no-legal-rationale-for-primacy-revisiting-section-6a-of-the-hindu-minority-and-guardianship-act-1956/

[10] INDIA CONST. art. 15, cl. 1