A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

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CEDAW India Article 16.1(f) Marriage and Family Life Custody and Guardianship Ms. Githa Hariharan and another (Petitioners) v Reserve Bank <strong>of</strong> India and another (Respondents) With Dr. Vandana Shiva (Petitioner) v Jayanta Bandhopadhyaya and another (Respondents) AIR 1999 Supreme Court 1149 Supreme Court <strong>of</strong> India 17 February 1999 Dr. A. S. Anand CJ, M. Srinivasan and Umesh C. Bannerjee JJ <strong>Law</strong>s and International Instruments Considered Beijing Declaration 1995; CEDAW 1979, Article 16 (d), (f); Constitution <strong>of</strong> India 1949, Articles 14, 15; Guardians and Wards Act 8 <strong>of</strong> 1890, Section 19(b); Hindu Minority and Guardianship Act 1956, Section 6(a). This case deals with sex discrimination under Indian guardianship law. There were two separate writ petitions filed in these proceedings both utilising the equality provision <strong>of</strong> the Constitution <strong>of</strong> India 1949 [“the Constitution”] to challenge the legality <strong>of</strong> section 6(a) <strong>of</strong> the Hindu Minority and Guardianship Act 1956 [“HMG”] and section 19(b) <strong>of</strong> the Guardians and Ward Act 1890 [“GWA”]. The Court considered whether the Acts contravene the equality provisions (Articles 14, 15) <strong>of</strong> the Constitution on the basis that they exclude mothers from being the natural guardians <strong>of</strong> their children during the father’s lifetime, and therefore discriminate against mothers on the basis <strong>of</strong> their sex. As both writ petitions challenged the constitutionality <strong>of</strong> the same sections <strong>of</strong> the two Acts, they were heard together. In the first petition, Githa Hariharan (a writer) and her husband (a medical scientist), jointly applied to the Reserve Bank <strong>of</strong> India (the first respondent) for Relief Bonds in the name <strong>of</strong> their son. In the application they expressly stated that Githa Hariharan would act as guardian for the investments for their son. The Reserve Bank <strong>of</strong> India, 26
Ms Githa Hariharan and another v Reserve Bank <strong>of</strong> India and another etc. (India) requested that either the father sign as guardian or a certificate <strong>of</strong> guardianship from a competent authority in favour <strong>of</strong> the mother accompany the application, to meet the requirements <strong>of</strong> section 6(a) <strong>of</strong> the HMG Act. This led to the filing <strong>of</strong> the first petition. In the second petition, the petitioner, Dr. Vandana Shiva, was the wife <strong>of</strong> the respondent, Jayanta Bandhopadhyaya. The respondent had instituted divorce proceedings against his wife, and claimed custody <strong>of</strong> their minor son. He claimed to be the natural guardian <strong>of</strong> the child according to the provisions <strong>of</strong> the HMG Act and stated that no decision could be taken in regard to his son without his permission. This led to the filing <strong>of</strong> the second petition. The petitioners argued that section 6(a) <strong>of</strong> the HMG Act and section 19(b) <strong>of</strong> the GWA violate the equality clauses <strong>of</strong> the Constitution because the mother <strong>of</strong> the minor is relegated to an inferior position on the grounds <strong>of</strong> sex alone since her right as natural guardian is only cognisable “after” the father. The petitioners argued that both sections should be struck down as unconstitutional. The respondents argued that section 6(a) <strong>of</strong> the HMG Act states clearly that the father <strong>of</strong> a Hindu minor is the only natural guardian and only after the lifetime <strong>of</strong> the father can the mother act as the natural guardian. Decision The Supreme Court granted relief in both petitions by broadening the meaning <strong>of</strong> the statutes rather than by striking down the provisions <strong>of</strong> the two Acts as unconstitutional. It held that a literal interpretation <strong>of</strong> the word “after” to mean “after the death <strong>of</strong>” “undoubtedly violates gender equality, one <strong>of</strong> the basic principles <strong>of</strong> the Constitution”. The Court therefore reinterpreted the word “after” to mean “in the absence <strong>of</strong>” and held that the Reserve Bank <strong>of</strong> India was incorrect in not accepting the application naming the mother as guardian. The Court defined “in the absence <strong>of</strong>” to mean where the father is not in actual charge <strong>of</strong> the affairs <strong>of</strong> the minor. This could either be because <strong>of</strong> his indifference or because <strong>of</strong> an agreement between him and the mother <strong>of</strong> the minor (oral or written), and the minor is in the exclusive care and custody <strong>of</strong> the mother, or the father for any reason is unable to take care <strong>of</strong> the minor because <strong>of</strong> his physical and/or mental incapacity. The mother would then act as the minor’s natural guardian and all her actions would be valid even during the lifetime <strong>of</strong> the father, who would be deemed absent for the purposes <strong>of</strong> section 6(a) <strong>of</strong> HMG Act and section 19(b) <strong>of</strong> the GWA. The Court also noted that its interpretation <strong>of</strong> the two sections conforms to two international instruments, CEDAW and the Beijing Declaration. These instruments 27
Page 1 and 2: A Digest o
Page 3: A Digest o
Page 6 and 7: Acknowledgements APWLD would like t
Page 8 and 9: Contents ARTICLE 16(f): MARRIAGE AN
Page 10 and 11: Contents MARRIAGE AND FAMILY LIFE -
Page 12 and 13: Introduction regional groups - an i
Page 15 and 16: Part I CEDAW Cases
Page 17 and 18: Imelda Romualdez-Marcos v Commissio
Page 19 and 20: Imelda Romualdez-Marcos v Commissio
Page 21 and 22: Article 9 Nationality and Citizensh
Page 23 and 24: Sayeeda Rahman Malkani and others v
Page 25 and 26: Mr Benjamin Peter, Mrs Mina Kumari
Page 27 and 28: Nurhatina Hasibuan v Pt. Indonesia
Page 29 and 30: Article 11 Employment Teikoku Zouki
Page 31 and 32: Article 16.1(a) Marriage and Family
Page 33 and 34: to clarify paternity suggested by t
Page 35 and 36: Humaira Mehmood v The State and oth
Page 37: Humaira Mehmood v The State and oth
Page 41 and 42: Article 16.1(f) Marriage and Family
Page 43 and 44: Surya Prakash v Shirley Reshmi Nara
Page 45 and 46: Madhu Kishwar and others v State <s
Page 47 and 48: Madhu Kishwar and others v State <s
Page 49 and 50: Article 16.1(h) Marriage and Family
Page 51 and 52: C. Masilamani Mudaliar and others v
Page 53 and 54: Article 16.1(h) Marriage and Family
Page 55 and 56: Meera Kumari and Mira Khanal v His
Page 57 and 58: Apparel Export Promotion Council v
Page 59 and 60: Apparel Export Promotion Council v
Page 61 and 62: A safe working environment is funda
Page 63 and 64: General Recommendation 19 Violence
Page 65 and 66: Chairman, Railway Board and others
Page 67 and 68: with the complainant. He also state
Page 69 and 70: The Republic of Ki
Page 71: Part II Constitutional Law<
Page 74 and 75: Public Prosecutor v Walter Kota and
Page 76 and 77: CONSTITUTIONAL LAW Nepal Nationalit
Page 78 and 79: CONSTITUTIONAL LAW Japan Employment
Page 80 and 81: Iwate Bank Case (J
Page 82 and 83: CONSTITUTIONAL LAW Republic <strong
Page 84 and 85: CONSTITUTIONAL LAW Nepal Discrimina
Page 86 and 87: CONSTITUTIONAL LAW Pacific Islands:
Page 88 and 89:
CONSTITUTIONAL LAW Bangladesh Marri
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CONSTITUTIONAL LAW Pacific Islands:
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Patricia Molu v Cidie Molu (Pacific
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Prakash Mani Sharma v His Majesty
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John Noel (as representative <stron
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John Noel (as representative <stron
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Hee Jung Woo v Jung Hue Shin, Jong
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CONSTITUTIONAL LAW Japan Violence A
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Al-Amin and 5 others v The State (B
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Al-Amin and 5 others v The State (B
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A Article APWLD Asia Pacific Forum
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95 Glossary In criminal proceedings
Page 113 and 114:
97 Glossary television or film (or
Page 115 and 116:
countries. Sharia is a religious co
Page 117 and 118:
Bangladesh CEDAW Country Ratificati
Page 119 and 120:
Government is discriminatory. Some
Page 121 and 122:
CEDAW Country Ratification Report:
Page 123 and 124:
Page 125 and 126:
Page 127 and 128:
of the Republic an
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Status of Ratifica
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COUNTRY CEDAW CEDAW-Op Polynesia 1.
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FAMILY LAW 1. Marriage and custom C
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• A.26 - equality under and befor
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UDHR • A.7 - equality before and
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Notes
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Notes Asia Pacific Forum on Women,
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