The issue of gender discrimination in guardianship of children was highlighted in the case of Githa Hariharan and Anr v Reserve Bank of India and Anr [1999] 1 SCR 669 referring to the landmark judgment of the supreme court .The case of Githa Hariharan is a famous writer who had applied for an RBI bond in the name of her minor son. Her application was rejected by the Reserve Bank of India (RBI) because according to the Hindu Minority and Guardianship Act, 1956, father is considered to be “natural guardian” unless he is “absent from India or has wholly and finally renounced the world or has ceased to be a Hindu.” This law was seen as discriminatory against women because it places mothers under subordinate position compared to fathers concerning guardianship rights.
Challenge under Article 32 of the Constitution
Under Article 32 of the Constitution of India which grants right for constitutional remedies, Hariharan along with her husband challenged this clause, The applicants went on to argue that interpretation by RBI amounted to violation of fundamental right to equality which is guaranteed within article 14 (Menski & Menski 2014). In addition they argued that this rule violated their rights under article 21 i.e. right to life and personal liberty. In its ruling however, the Supreme Court held that ‘after’ in ‘after the father’ should not be taken literally as meaning after his death alone but rather broadly including where aspects such as physical absence, sannyasa or any other circumstance preventing him from acting as guardian are present.
Supreme Court’s Interpretation of 'After the Father'
This is one important move that has been made towards gender equality, which recognizes that both parents should be treated equally when it comes to matters of guardianship. By reading ‘after’ in the statute as inclusive of cases where the father may not have been actively taking part in raising of the child, the court struck down a piece of legislation that was inherently prejudiced against women. With this ruling, mothers were given power and could not automatically be left out or marginalized in decisions affecting their children.
Implications for Interpreting Personal Laws
The decision served as a basis for interpreting personal laws according to constitutional principles of equality and non-discrimination. It pointed at need to construe statutes in such a way as reflects current social values and changes taking place around women’s roles. This case led to less conservative and more fair application of personal laws especially where they are inconsistent with rights protected by the constitution.
Judiciary’s Role in Upholding Constitutional Values
The judgement illustrated how the judiciary upholds constitutional values through striking off provisions conflicting with basic liberties. The court’s definition of “after” regarding fathers was an exemplary expression for employing judicial activism to enable law evolve with time so it remains relevant in the changing society.
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