GITHA HARIHARAN V. RESERVE BANK OF INDIA [(1999) 2 SCC 228]
Observation: • The expression―natural guardian is defined in Section 4(c) of the HMG Act as any of the guardians mentioned in Section 6 (supra). The term ―guardian is defined in Section 4(b) of the HMG Act as a person having the care of the person of a minor or of his property or of both, his person and property, and includes a natural guardian among others. Thus, it is seen that the definitions of ―guardian and ―natural guardian do not make any discrimination against mother and she being one of the guardians mentioned in Section 6 would undoubtedly be a natural guardian as defined in Section 4(c).
• The only provision to which exception is taken is found in Section 6(a) which reads ―the father, and after him, the mother. That phrase, on a cursory reading, does give an impression that the mother can be considered to be the natural guardian of the minor only after the lifetime of the father.
• Whenever a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a court of law, the word ―after in the section would have no significance, as the court is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor.
• The word―after need not necessarily mean―after the lifetime. In the context in which it appears in Section 6(a) (supra), it means in the absence of, the word―absence therein referring to the father„s absence from the care of the minor„s property or person for any reason whatever.
• If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, 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 Held: Harmonious construction of Section 4 and Section 6 of the HMG Act, without causing any violence to the language of Section 6(a) (supra).
The word―after shall have to be given a meaning which would sub serve 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.
• 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.
