Women and Justice: Keywords

Domestic Case Law

Re Namugerwa & 2 Others High Court at Jinja (2010)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

The aunt of three children applied for guardianship of the children and the land they inherited following the death of their father.  The Court was unable to determine some critical information, including whether the children had a surviving parent and the source of the funds the aunt used to care for the children.  The Court was also concerned that the children’s mother might be alive and the automatic guardian, but that the aunt was chosen because she was related to the children’s male parent.  Under most customary community traditions in Uganda, being a paternal ancestor would give the aunt guardianship priority over the mother.  The Constitutional Court found these practices unconstitutional.

Hariharan v. Reserve Bank of India Supreme Court of India (1999)

Gender discrimination

Ms. Githa Hariharan was married to Dr. Mohan Ram and they had a son named Rishab. She applied to the Reserve Bank of India (RBI) for bonds to be held in the name of their minor son Rishab and had signed off as his guardian. The RBI sent back the application to her advising her to either produce the application signed by the father of Rishab or produce a certificate of guardianship from a competent authority in her favor. RBI was of the opinion that Dr. Mohan was the natural guardian of Rishab on the basis of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMGA). That provision stated that the father is the natural guardian of a Hindu minor child and the mother is the guardian “after” the father. Ms. Hariharan challenged the constitutional validity of this provision in the Supreme Court on grounds that it violated the right to equality guaranteed under Articles 14 and 15 of the Indian Constitution. The Supreme Court, relying on gender equality principles enshrined in the Indian Constitution, CEDAW and UDHR, widely interpreted the word “after” in the provision and upheld the constitutional validity of Section 6(a) HMGA, 1956. It held that both the father and mother are natural guardians of a minor Hindu child, and the mother cannot be said to be natural guardian only after the death of the father as that would not only be discriminatory but also against the welfare of the child, which is legislative intent of HMGA, 1956. This case is important because it established for the first time that a natural guardian referred to in the HMGA, 1956 can be a father or a mother: whoever is capable of and available for taking care of the child and is deeply interested in the welfare of the child, and that need not necessarily be the father.