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

Ms Githa Hariharan and another v Reserve Bank <strong>of</strong> India and another etc.(India)
direct state parties to take appropriate steps to prevent all forms <strong>of</strong> discrimination
against women. The Court observed that domestic courts in India are under an
obligation to construe domestic laws in line with international conventions and
norms.
Commentary
The Court used the fundamental right to equality to reinterpret the law so as to
allow mothers guardianship <strong>of</strong> their children in limited circumstances during the
lifetime <strong>of</strong> their father. In that sense the decision <strong>of</strong> the Court was a positive step in
the direction <strong>of</strong> the rights <strong>of</strong> women in that it recognised and upheld a fundamental
principle <strong>of</strong> equality as entrenched in the two instruments. However, a closer reading
<strong>of</strong> the judgment reveals strong patriarchal leanings. It is only when the father is
not able to take actual charge <strong>of</strong> the affairs <strong>of</strong> the minor, or when there is a specific
arrangement between the father and the mother, that the mother can be recognised
as the natural guardian. Thus, if the mother acts in the capacity <strong>of</strong> the guardian and
that is challenged, she would have to prove “the absence <strong>of</strong>” the father. Notably by
contrast, section 6(a) states that the mother <strong>of</strong> an “illegitimate” child shall be the
natural guardian, and “after” her, the father would be recognised as the guardian. This
reverses the onus so that a mother must take responsibility for the “illegitimacy”.
If the Court had struck down the provisions as unconstitutional and declared both
parents to be the guardians in any circumstances, it would have gone a long way
towards the recognition <strong>of</strong> the mother as an independent person and given her much
more freedom to make decisions with regard to her child. This judgment therefore
does not bestow equal status on the mother and the father as guardians.
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