[HMGA, Guardians & Wards Act] Mother Can Act As Natural Guardian Of Minor During Lifetime Of Father Who Is 'Absent': Kerala High Court

The Kerala High Court has held that a mother can validly execute a document on behalf of her minor children as their natural guardian even during the lifetime of the father, if he is not involved in the lives of the minors and was deemed as absent.Justice A. Badharudeen relied upon Section 6 (a) of the Hindu Minority and Guardianship Act (HMG) and the decision of the Apex Court in Gita Hariharan (Ms) and Another Vs. Reserve Bank of Indian and Another (1999) and observed that the mother can act as the natural guardian of the minor and all her actions would be valid even during the lifetime of the father, in the absence of father, as per Section 6(a) of the HMG Act and Section 19(b) of the Guardians and Wards Act, 1890.“Thus, it appears that as per the ratio in Githa Hariharan's case (Supra), affirmed in Akella Lalitha's case (Supra), the legal position is that Section 6(a) does not give an impression that the mother can be considered to be the natural guardian of the minor only after the lifetime of the father. When the mother acts as the guardian of the minor during the lifetime of the father without the matter going to the court, and the validity of such an action is questioned on the ground that the mother is not the legal guardian of the minor, in view of Section 6(a) of the HMG Act, the mother could function as guardian only after the lifetime of the father and not during his lifetime. Such an interpretation would violate gender equality, one of the basic principles of our Constitution. “Section 6 (a) of HMG provides that in the case of a boy or an unmarried girl, the mother is a natural guardian after the father with the further proviso that custody of a minor, who has not completed the age of 5 years shall ordinarily be with the mother. Section 19(b) of the Guardians and Wards Act states the instances wherein the guardian was not appointed by the Court. The appellants-plaintiffs have approached the High Court under Section 100 CPC by filing a regular second appeal challenging the orders passed by the Munsiff Court and Additional District Court in the suit filed by them.Background FactsThe entire property under challenge belonged one Krishnan who was the husband of the 9th plaintiff and the father of the other plaintiffs and defendants. The plaintiffs allege that the entire property has to be equally partitioned among the plaintiffs and defendants because the father died without leaving behind a will. The defendants allege that the father transferred his rights over certain part of the property to plaintiffs and defendant 1 and 2 by way of a deed (Exhibit B1). The plaintiff’s contention was that the father had re-conveyed the rights by way of another deed (Exhibit B3), so it has to be partitioned equally. The defendants contend that since defendant 1 and 2 were minors at that time, their property was not re-conveyed to the father by way of Exhibit B3 deed which was executed by their mother as their natural guardian. Thus, the defendants allege that Exhibit B3 was a void document. The Trial Court held passed an order in favor of the defendants and stated that the entire property was not re-conveyed by Exhibit B3 deed and therefore the property was not equally partible. Appeal was preferred by the plaintiffs, and the Appellate Court also dismissed the appeal and stated that as Exhibit B3 deed was not binding as it was not executed for the benefit of minors, and they were entitled to retain their property. The Counsel for the plaintiffs relied upon Section 6 (a) of the Hindu Minority and Guardianship Act (HMG) and the decision of the Apex Court in Gita Hariharan (Ms) and Another Vs. Reserve Bank of Indian and Another (1999) and Akella Lalitha v. Sri.Konda Janumantha Rao (2022) to state that mother can validly execute documents on behalf of minor as their guardian, in the absence of father. “the father can be considered to be absent and the mother being a recognized natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of a harmonious construction of Section 4 and Section 6 of the HMG Act, without causing any violence to the language of Section 6(a) .”Relying upon Gita Hariharan (supra), it was also contended that both mother and father have equal rights as natural guardian of minor child. It was stated that the wordings in Section 6(a) of HMG, “the father and after him, the mother” does not give an impression that the mother can act as natural guardian only after the lifetime of the father. It was argued that Gita Hariharan (supra), the Court clarified that as per Section 6(a), the mother can be appointed as guardian by an order of the Court during the life time of father and the mother can also act as guardian of the minor in the absence of father in his lifetime. It was further contended that the ‘absence’ of father as per the decision in Gita Hariharan (supra) means thus:“If the father is wholly indifferent to the matters of the...

[HMGA, Guardians & Wards Act] Mother Can Act As Natural Guardian Of Minor During Lifetime Of Father Who Is 'Absent': Kerala High Court

Tellmy Jolly

Tags