Queering Guardianship

Moving Parenthood from Status to Care in Githa Hariharan v Reserve Bank of India (India)

Abstract

In Githa Hariharan v Reserve Bank of India (1999), a provision of the Hindu Minority and Guardianship Act 1956 was challenged before the Supreme Court of India on the ground that it violated the constitutional guarantee of equality since it stated that the father is the “natural guardian” of a minor, and the mother comes “after him”. The Supreme Court held that “after” does not mean “after the death of the father” but rather “in the absence of” the father, including situations where the father is unwilling, incapable, indifferent, or has abdicated responsibility. This holding, however, ironically reiterated the primacy of the father over his children’s guardianship and remains the position of law to date. This rewritten judgment re-imagines the case from a queer lens. It highlights the problematic prevalence of the father/mother binary within parenthood laws in India, contests the assumption of a bionormative parental unit, and refutes the idea that guardianship should flow from gendered parental roles. It illustrates how Indian constitutional law has long had the tools to “queer” guardianship and that courts often choose interpretive restraint, not because of doctrinal limits but because of a failure of moral imagination regarding essentialized gender identities and the gendered division of labour. The rewritten judgment envisions an alternative, relational conception of guardianship centred on actual decision-making and caregiving. This affirms equality between heterosexual parents while creating space to recognize same-sex parents, non-biological caregivers, and trans parents whose legal gender does not map onto mother/father, and chosen-family structures.

Keywords: guardianship; mother; father; equality; caregiving; discrimination; gendered parental roles; bionormative.