[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 Facts

The entire property under challenge belonged one Krishnan who was the husband of the 9^th 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 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.”

Findings

The Court on an examination of Section 6(a) of HMG, Section 19(b) of the Guardians and Wards Act and as per the decisions in Gita Hariharan (supra) and Akella Lalitha (supra) stated that mother can be considered to be the natural guardian of the minor even during the lifetime of the father, in his absence.

The Court held that Exhibit B3 document will not be deemed as void as it was validly executed by the mother, who was the natural guardian of the minors. The Court further stated that the document will not be void, but only voidable at the option of the minors. It stated that alienation of immovable of property of minors by the guardian without the permission of the Court was voidable and the minors within three years of attaining majority, can approach the Court for setting aside the document. It was held that if the document was not set aside within three years of attaining majority, then the document could not be held as void. The Court relied upon Ramdas Menon v. Sreedevi (2004) and Viswambhar & others v. Laxminarayan (2001), and observed thus:

“In fact, as per the law settled, as discussed in detail herein above, mother also is a natural guardian and therefore, Ext.A3 executed by the mother, representing defendants 1 and 2, as the natural guardian, is not a void document but the same is a voidable document at the option of the minors…… after the expiry of three years from the date of attaining majority by the minors, Ext.A3 became a valid document.”

The Court held that Exhibit B3 deed was a valid document and found that the minors did not challenge its validity within three years of attaining their majority. It found that the mother has validly executed Exhibit B3 deed and has re-conveyed the property back to the father from defendant 1 and 2. Thus, the Court allowed the appeal and stated that the entire property was partible equally among the plaintiffs and defendants.

Counsel for the appellants: Advocates P.S.Sreedharan Pillai, Arjun Sreedhar, Arun Krishna Dhan, Alex Abraham, T.K.Sandeep

Counsel for the respondents: Senior Advocate T.Sethumadhavan Advocates Deepa Narayanan, Preethi. P.V., M.V.Balagopal

Citation: 2023 LiveLaw (Ker) 565

Case title: Kakkovil Muliyarakkal Krishnan Children V Kakkovil Muliyarakkal Vilasini(Died)

Case number: RSA NO. 733 of 2018

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