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2013 DIGILAW 559 (GUJ)

NEHA BINA RAMANI v. STATE OF GUJARAT

2013-09-13

RAJESH H.SHUKLA

body2013
JUDGMENT : 1. Present petition has been filed by the petitioner under Articles 14 and 226 of the Constitution of India as well as under the provisions of Hindu Minority and Guardianship Act, 1908 and Guardians and Wards Act, 1980, on the grounds stated in the petition for the following prayers: “10.(A) the Hon’ble Court may be pleased to admit this petition; (B) the Hon’ble Court may be pleased to quash and set aside the order passed by the respondent no.2, dated 30.11.2011; (C) the Hon’ble Court may be pleased to direct the respondent no.2 to publish the name of the petitioner as “Neha Bina Ramani” in place of “Neha Manohar Tahilramani”; (D) the Hon’ble Court may be pleased to grant any other or further relief looking to the facts and circumstances of the present petition;” 2. Heard learned Advocate Shri K.B. Paneri for the petitioner and learned AGP Shri Bipin Bhatt for Respondent No.1 and 2. 3. The factual background has stated are that the parents of the petitioner married on 15.01.1979 at Ahmedabad as per the Hindu Religion rites. The mother of the petitioner thereafter married to one Manohar Armaram Tahilramni. Thereafter, as there was dispute between parents of the petitioner and they obtained divorce by filing HMP No.311 of 1989 before the City Civil Court at Ahmedabad under Section 13(1)(a) of the Hindu Marriage Act and the decree of divorce was passed on 30.04.1998 produced at AnnexureA. The father was given visiting rights qua the petitioner but he did not take care and the petitioner has been brought up by the mother. Therefore, the petitioner is willing to use the name of the mother, who is natural guardian. After attaining the age of maturity, the petitioner decided to use the name of her mother behind her name instead of her father’s name. Accordingly, the name of the mother is recorded in various documents like Degree certificate, passport, Driving license etc. Therefore, the petitioner made an application alongwith affidavit to get her mother’s name entered in place of her father’s name, which is produced at AnnexureC. She has applied that her name should be corrected as “NEHA BINA RAMANI” in place of “NEHA MANOHAR TAHILRAMANI”. However, the same has been declined as stated in the petition which has led to filing of the present petition. 4. She has applied that her name should be corrected as “NEHA BINA RAMANI” in place of “NEHA MANOHAR TAHILRAMANI”. However, the same has been declined as stated in the petition which has led to filing of the present petition. 4. Learned Advocate Shri K.B. Paneri for the petitioner has stated the it is clear violation of Article 14 as well as provisions of Hindu Minority and Guardianship Act and Guardians and Wards Act, 1890. He submitted that Section 6 of the Hindu Minority and Guardianship Act,1956, provides that the custody of the minor child who has not completed the age of five years was with the mother, the natural guardian of a Hindu minor. Therefore, it include the mother as a natural guardian. He emphasized that the term ‘guardian’ is defined in Section 4(b) of the Hindu Minority and Guardianship Act, 1956, which reads as under: “4. Definitions In this Act (a) “minor” means a person who has not completed the age of eighteen years; (b) “guardian” means a person having the care of the person of a minor or of his property or of both his person and property, and includes (i) a natural guardian, (ii) a guardian appointed by the will of the minor’s father or mother (iii) a guardian appointed or declared by court, and (iv) a person empowered to act as such by or under any enactment relating to any court of wards; (c) “natural guardian” means any of the guardians mentioned in section 6.” 5. Learned Advocate Shri Paneri, therefore, submitted that the term guardian provides that 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. Therefore, he has submitted that definition of the guardian and natural guardian does not have much difference and the natural guardian is decided in Section 4(C) of the Hindu Minority and Guardianship Act. He has referred to the judgment of the Hon’ble Apex Court in the case of Githa Hariharan and another V. Reserve Bank of Indian and another, reported in AIR 1999 SC 1149 and emphasized the observations made that when the father is looking after the minor child then the father can be considered to be absent and mother being recognized as natural guardian and can act on behalf of the minor as guardian. He, therefore, submitted the impugned order is contrary to the law laid down by the Hon’ble Apex Court in the aforesaid judgment. 6. Per contra, learned AGP Shri Bipin Bhatt referred to the affidavitinreply filed by the In Charge Manager, Government Press. He has also referred to the further affidavitinreply on behalf of Respondent No.2 referring to the provisions of the Hindu Minority and Guardianship Act to emphasize that the word ‘Guardian’ includes the ‘Natural Guardian’ but the word ‘Natural guardian’ does not include the ‘Guardian’ unless and until it will satisfy the test prescribed under Section 6 of the Hindu Minority and Guardianship Act, 1956, which has also been reproduced hereinbelow: “Section 6: Natural Guardian of a Hindu minor The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are (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; (b) in the case of an illegitimate boy or an illegitimate unmarried girl the mother, and after her, the father; (c) in the case of a married girl the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or as ascetic (yati or sanyasi). Explanation: In this section, the expressions ‘father’ and ‘mother’ do not include a stepfather and a step mother.” It is therefore contended that the interpretation of the law in a beneficial way, which is not permissible. As per the existing provisions of the Hindu Minority and Guardianship Act, 1956, which specifically consider the father is a natural guardian. Learned AGP Shri Bhatt has submitted that unless and until the exemption or the ground as provided are fulfilled, the father is a natural guardian in case of boy or an unmarried girl and therefore the order is not erroneous. Learned AGP Shri Bhatt has submitted that unless and until the exemption or the ground as provided are fulfilled, the father is a natural guardian in case of boy or an unmarried girl and therefore the order is not erroneous. He has also referred to and relied upon the judgment of the Hon’ble Apex Court in case of Jijabai Vithalrao Gajre v. Pathankhan reported in AIR 1971 SC 315 and emphasized the observations made in para 11 of the judgment that the “mother can be considered to be natural guardian after the father.” He also referred to the judgment of the Hon’ble Kerala High Court in case of Essakkyal Nadar Michayel Nadar V/s. Sreedharan Babu reported in AIR 1993 KER 200 to support his submissions. He has also referred to the judgment of this Court in case of Balasinor Nagrik Cooperative Bank Ltd. V/s. Babubhai Shakerlal Pandya reported in 1987 (1) GLH 423 and submitted that Section 6 of the Act is specifically provided that who is a natural guardian and there is no ambiguity than the words in the Statute may have to be accepted. He pointedly referred to the affidavitinreply and submitted that the doctrine of ‘a verbis legis no est recedendum’ meaning thereby ‘you may not vary the words of a statute’ would be applicable and the present petition may not be entertained. Learned AGP Shri Bipin Bhatt has also stated that the father would be a necessary party and therefore he may bejoined as a party. 7. In view of these rival submissions, it is required to be considered whether the present petition can be entertained or not. 8. As it transpires from the relevant records, the ‘Guardian’ and ‘Natural Guardian’ as provided in the Hindu Minority and Guardianship Act, 1956 required to be considered. The emphasis by learned AGP Shri Bhatt that the word of Statute has to be accepted and the doctrine of ‘a verbis legis no est recedendum’ would be applicable in the facts of the present case. In fact the doctrine of ‘a verbis legis no est recedendum’ is well established rule of interpretation and it has also been interpreted by the Courts time and again. The word in the Statute requires harmonious interpretation which carry the intention of the legislature and it has to be contextual also. The Hon’ble Apex Court while considering this very issue in the case of Ms. The word in the Statute requires harmonious interpretation which carry the intention of the legislature and it has to be contextual also. The Hon’ble Apex Court while considering this very issue in the case of Ms. Githa Hariharan and another V. Reserve Bank of India and another, reported in AIR 1999 SC 1149 has interpreted and considered the definition of guardian and natural guardian referring to the provisions of the Hindu Minority and Guardianship Act, 1956. It has referred to the expression of natural guardian as defined in Section 4(C) of the Hindu Minority and Guardianship Act, 1956 and also the term of guardian as defined in Section 4(B) of the same Act. It has been specifically observed that: “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 undoutedly be a natural guardian as defined in Section 4(c). The only provision to which exception is taken in found in Section 6(a) which reads “the father, and after him, the mother”. That phrase, on a cursory reading does given an impression that the mother can be considered to be natural guardian of the minor only after the life time of the father. In fact that appears to be the basis of the stand taken by the Reserve Bank also. It is not in dispute and is otherwise well settled also that welfare of the minor in the widest sense is the paramount consideration and even during the life time of the father, if necessary, he can be replaced by the mother or any other suitable person by an order of Court, where to do so would be in the interest of welfare of the minor.” Further it has been observed in this back ground as under: “9. Is that the correct way of understanding the section and does the word ‘after’ in the Section mean only ‘after’ in the Section mean only ‘after the life time’? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it is undoubtedly violates gender equality, one of the Basic principles of out Constitution. If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it is undoubtedly violates gender equality, one of the Basic principles of out Constitution. The HMG Act came into force in 1956 i.e. six years after the Constitution Did and Parliament intend to transgress the constitutional limits or ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on grounds of sex? In our opinion – No. It is well settled that if on one construction a given statute will become unconstitutional, wheres on another construction, which may be open, the statute remains within the constitutional limits, the Court will prefer the latter on the ground that the Legislature is presumed to have acted in accordance with the Constitution and courts generally lean in favour of the constitutionality of the statutory provisions. 10. We are of the view that the Section 6(a) (supra) is capable of such construction as would retain it within the Constitutional limits. The word ‘after’ need not necessarily mean ‘after the life time’. 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 case 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 by virtue of mutual understanding between the father and the mother, the later 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 recognised natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of harmonious construction of Section 4 and Section 6 of HMG Act, without causing any violence to the language of Section 6(a) (supra).” 9. Such an interpretation will be the natural outcome of harmonious construction of Section 4 and Section 6 of HMG Act, without causing any violence to the language of Section 6(a) (supra).” 9. It is required to be mentioned that the Hon’ble Apex Court while considering this aspect has also considered the other provisions in the judgment in case of of Jijabai Vithalrao Gajre v. Pathankhan reported in AIR 1971 SC 315 , which has been discussed and distinguished. It is also required to be considered that the Hon’ble Apex Court in the aforesaid judgment has also referred to the International Convention in para 14 regarding discrimination against women stating that India is a signatory to such convention“Convention on the Elimination of All Forms of Discrimination Against Women, 1979”. The Hon’bel Apex Court has, therefore, clearly observed that “The domestic courts are under an obligation to given due regard to International Conventions and Norms for construction domestic laws where there is no inconsistency between them.” It is in this background considering the provisions of Hindu Minority and Guardianship Act, 1908 as well as the Guardians and Wards Act, 1980, and the judgment reported in AIR 1999 SC 1149 , the present petition deserves to be allowed. The impugned order cannot be sustained and deserves to be set aside and accordingly stands set aside. 10. Therefore, the present petition stands allowed in terms of para No.10(B) and 10(C). The impugned order passed by Respondent No.2 dated 30.11.2011 is hereby quashed and set aside. The Respondent No.2 is directed to publish the name of the petitioner as “NEHA BINA RAMANI” in place of “NEHA MANOHAR TAHILRAMANI” as prayed. The respondent No.2 is further directed to take necessary steps to publish the name of the petitioner as prayed, within a period of four weeks. Rule is made absolute. No order as to costs.