Bombay High Court
Amrita Sanjay Achharya vs Sanjay Achharya S/O Shivkumar ... on 14 September, 2016
Bench: G.S. Patel
60-MPT84-16.DOC
ATUL
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISCELLANEOUS PETITION NO. 84 OF 2016
Amrita Sanjay Achharya ...Petitioner
And
Sanjay Achharya, s/o Shivkumar Achharya ...Deceased
Mr. A. R. Bapat, a/w Mr. Niraj Malaviya and Mr. Manan M., i/b
Divya Shah Associates, for the Petitioner/Applicant.
CORAM: G.S. PATEL, J
DATED: 14th September 2016
PC:-
1.
I am unable to understand why the Registry insists on an
order of a Court in matters like this.
2. The Petitioner is the mother of two minor children, a
daughter named Thavi and a son named Vedant. Thavi is sixteen
years old. Vedant is six years old. Their father, the Petitioner's
husband, Sanjay died intestate on 9th September 2015 in Mumbai.
In addition to the Petitioner and two minor children, Sanjay was
survived by his mother, Lata. There is a pending Petition by the
present Petitioner for Letters of Administration.
3. In the meantime, the Department has raised an objection and
directed the Petitioner to obtain an order of a Court that the
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Petitioner, Amrita, "being the mother and natural guardian" of the
minor children is their "guardian". This is a completely
incomprehensible requirement. In law, once the father has passed
away, it is evidently the birth mother who is and must be the natural
guardian of the minor children. If she is the mother and natural
guardian and the Department (mercifully) does not dispute this,
then she is obviously the guardian. I do not see why any order of the
Court is required for this purpose, and I must agree with Mr. Bapat
when he says the objection is totally without substance.
4. There was once a view that it is only on the death of a minor's
father, the mother becomes the natural as well as the legal guardian
of the minor.1 That, as we shall see, is incorrect. In the absence of
the father, the mother is certainly the natural and legal guardian of
the minor. Section 4(2) of the Guardians and Wards Act, 1890 is not
limited to legal, testamentary or court-appointed guardians; it
includes natural guardians as well.2 Apostasy has been held to make
no difference;3 neither does divorce. I have noted some this before
in Testamentary Petition No. 63 of 2012, In re: Freyan Zarir
Icchaporia.4 There, the department had demanded that the divorced
mother obtain an order that she is the guardian ad-litem, the father
having passed away. I held there could be no such requirement,
departmental or otherwise. The implicit suggestion there was (and
1. Sarada Nayar v Vayankara Amma and Ors., AIR 1957 Ker 158.
2. Manjula d/o Jagjivandas Adhia and Anr. v Himansu Prakash Boral and
Anr., 1984 (1) Bom CR 433; Noshirwan v. Sharoshbanu, AIR 1934 Bom 311;
Ratan and Anr. v Bisan Ramchandra Pardeshi, AIR 1978 Bom 190.
3. Sheila Umesh Tahiliani v Soli Phirozshaw Shroff and Ors., AIR 1981 Bom
175.
4. Order dated 16th October 2015.
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probably is in the case at hand) that even though the birth mother is
alive, and even absent anything to show that she should be stripped
of the incidents of guardianship, a Court might randomly appoint
someone else, say an officer of the Court, to be the 'guardian ad-
litem' of the minor. That is a proposition utterly bereft of substance.
5. An almost identical point appears to have been taken before a
Single Judge of the Madras High Court in C.B. Chandrasekhar.5 The
father was the natural guardian. The question was whether he could
not, being the natural guardian, file an original petition for Letters of
Administration with Will Annexed without praying first for his
appointment as a natural guardian by the Court. There, too, the
office seems to have insisted on such an appointment. The learned
single Judge in a short order said the departmental view was
incorrect. This is also the view of the Allahabad High Court in Smt.
Rasulan v Dilawar and Anr.6
6. In any case, the approach that mother is not the natural
guardian so long as the father is alive is patently incorrect in law and
is fundamentally flawed. It is an unacceptably misogynistic
approach, contrary to Constitutionally-mandated standards of
gender neutrality and equality. Interpreting the relevant provisions
of the Hindu Minority and Guardianship Act, 1956 and Sections 4
and 6 of that Act in particular, the Supreme Court in Githa
Hariharan & Anr. v Reserve Bank of India & Anr. said this:7
5. I (1990) DMC 410 : 1989-2-LW 357 : MANU/TN/0267/1989.
6. AIR 1971 All 248.
7. (1999) 2 SCC 228 : AIR 1999 SC 1149 : 1999 (2) ALL MR (SC) 416 :
2000 (1) Bom. C.R. 251 : [1999] 95 CompCas 913 (SC) : (1999) 152 CTR (SC)
479 : [1999] 236 ITR 380 (SC) : JT 1999 (1) SC 524 : 1999 (2) Mh. L.J. 703 :
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43. Turning attention on the principal
contention as regards the constitutionality of
the legislation, in particular Section 6 of the Act
of 1956, it is to be noted that the validity of a
legislation is to be presumed and efforts should
always be there on the part of the law courts in
the matter of retention of the legislation in the
statute-book rather than scrapping it and it is
only in the event of gross violation of
constitutional sanctions that law courts would
be within their jurisdiction to declare the
legislative enactment to be an invalid piece of
legislation and not otherwise and it is on this
perspective that we may analyse the
expressions used in Section 6 in a slightly more
greater detail. The word "guardian" and
the meaning attributed to it by the
legislature under Section 4(b) of the Act
cannot be said to be restrictive in any
way and thus the same would mean and
include both the father and the mother
and this is more so by reason of the
meaning attributed to the words as "a
person having the care of the person of a
minor or his property or of both his
person and property ...". It is an axiomatic
truth that both the mother and the father
of a minor child are duty-bound to take
due care of the person and the property
1999 (1) SCALE 490 : [1999] 1 SCR 669 : [1999] 104 TAXMAN 220 (SC). I
have provided multiple equivalents for the general edification of our registry,
confident that it will be able to find at least one of these.
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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.
44. 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 a statute,
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 ought to be attributed to
the word appearing in Section 6(a) and in
that perspective, the mother's right to
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act as the guardian does not stand
obliterated during the lifetime of the
father and to read the same on the
statute otherwise would tantamount to a
violent departure from the legislative
intent. Section 6(a) itself recognises that
both the father and the mother ought to
be treated as natural guardians and the
expression "after" therefore shall have to
be read and interpreted in a manner so
as not to defeat the true intent of the
legislature.
45. Be it noted further that gender
equality is one of the basic principles of
our Constitution and in the event the
word "after" is to be read to mean a
disqualification of a mother to act as a
guardian during the lifetime of the father,
the same would definitely run counter to
the basic requirement of the
constitutional mandate and would lead to
a differentiation between male and
female. Normal rules of interpretation shall
have to bow down to the requirement of the
Constitution since the Constitution is supreme
and the statute shall have to be in accordance
therewith and not de hors the same. The
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
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within the same category and in that view
of the matter, the word "after" shall have
to be interpreted in terms of the
constitutional safeguard and guarantee
so as to give a proper and effective
meaning to the words used.
46. In our opinion, the word "after" shall
have to be given a meaning which would
subserve the need of the situation, viz.,
the welfare of the minor and having due
regard to the factum that law courts
endeavour to retain the legislation rather
than declare it to be void, we do feel it
expedient to record that the word "after"
does not necessarily mean after the
death of the father, on the contrary, it
depicts an intent so as to ascribe the
meaning thereto as "in the absence of" --
be it temporary or otherwise or total
apathy of the father towards the child or
even inability of the father by reason of
ailment or otherwise and it is only in the
event of such a meaning being ascribed
to the word "after" as used in Section 6
then and in that event, the same would
be in accordance with the intent of the
legislation, viz., the welfare of the child.
47. In that view of the matter, the question of
ascribing the literal meaning to the word
"after" in the context does not and cannot
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arise having due regard to the object of the
statute, read with the constitutional guarantee
of gender equality and to give a full play to the
legislative intent, since any other interpretation
would render the statute void and which
situation, in our view, ought to be avoided.
(Emphasis added)
7. This was a decision of a three-judge Bench of the Supreme
Court. Banerjee J wrote the principal judgment; Anand CJ delivered
a separate but concurring judgment for himself and for M.
Srinivasan J. In the separate judgment, Anand CJ said:
16. While both the parents are duty-bound to
take care of the person and property of their
minor child and act in the best interest of his
welfare, we 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)
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of the HMG Act and Section 19(b) of the
GW Act.
(Emphasis added)
8. Now that was a case where both birth parents were alive.
Even in that situation, the Supreme Court said -- and this is
therefore unequivocally the law of the land -- that the mother was
as much a natural guardian as the father. It is a matter of greatest
dismay that when the Supreme Court said, over 16 years ago, that all
organisations should amend their processes and ways accordingly, it
is, quite astonishingly in my view, the registry of a High Court that
seems to have ignored this altogether.8
9. I will not permit this to continue. This is the second time in
less than a year that I have encountered such an objection, and that
is twice too often.
10. I am also unable to understand what amount of citing of law is
required for the registry to stop mindlessly raising the same so-
called 'objection' again and again. It not the province or the remit of
the registry to continually evolve new ways, or unthinkingly repeat
old and hackneyed ones, to make the lives of litigants before us even
more complicated than they are already given our opaque and
impenetrable processes. We are here to serve, not to obstruct;
certainly not to impede without reason. The sooner our department
understands that its over-zealous fascination with a thoroughly
8. I must note, with equal dismay, that I missed a reference to Githa
Hariharan when deciding Icchaporia. Fortuitously, that omission did not affect
the final result.
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incorrect understanding of the law is not what is expected or
demanded of it, the better. As courts, we must indeed make space
and time for trials. But we must do so without fashioning room for
tribulations.
11. Unless, therefore, the Department is able to establish that
there is some legal requirement for such an order in the facts of a
particular case, it is not to insist on such applications have to be
made or such orders being obtained. Where the father is alive and an
application is made for exclusive guardianship by the mother, the
requirements of Githa Hariharan in paragraph 46 in particular must
be satisfied. That class of matters may be required to be placed
before a court. Where the father is not alive, no order of
'appointment' of a birth mother as a 'guardian' is ever necessary.
12. In any event, in such a case there can never be a question of
appointing any other fit and proper person as the guardian of the two
minor children so long as their birth mother is present. That would
require a separate Petition made by another person claiming to be a
guardian for very special reasons and in very special circumstances.
It can never be set as an alternative prayer nor should the Registry
insist on it.
13. For the present, the Petition is made absolute in terms of
prayer clause (a).
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14. A copy of this order is to be placed before the Assistant
Prothonotary for his reference and to ensure that no such objection
is raised without a foundational basis again.
15. All concerned to act on an authenticated copy of this order.
(G. S. PATEL, J.)
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