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The Rediff Interview/ Githa Hariharan

'The law is an amoeba riddled with parasites'

Writer Githa Hariharan has won many accolades, including the prestigious Commonwealth Prize for her first novel, The Thousand Faces of Night. Earlier this year, she released When Dreams Travel, her fourth novel. However, it is for her success in a legal battle over her right as a mother that Hariharan has been in the news lately.

Last month, acting on a petition that Hariharan and her husband had filed, the Supreme Court reinterpreted a provision of the Hindu Minority and Guardianship Act, 1956 that said the father is always the natural guardian of a child, unless he is dead or declared unfit by a court of law. This law, as interpreted earlier, meant that the mother could not be the legal guardian of the child unless her husband was insane, absconding, or dead.

The issue began when Hariharan went to the Reserve Bank to buy savings bonds on behalf of her 11-year-old son. She was told that the bonds have to be signed for by her husband. It didn't make any difference that her husband was willing to allow her to be the child's guardian. She then decided to take her case to court, against what seemed like an absurd law.

The Supreme Court, in its judgment, "read down" the offending provision, so that according to it, the mother can also be the legal guardian of the child, so long as both husband and wife agree to that arrangement. Speaking to Suhasini Haidar in Delhi, Hariharan discussed her victory in court, which she describes as only "half a victory" in her fight for her rights.

How do you feel about the Supreme Court judgment?

Please notice even this judgment which is supposed to be a great triumph for mothers because it says the mother can also be the natural guardian, has not struck it [ section 6 (a) of the Hindu Minority and Guardianship Act] down. It has not said this is unconstitutional, and that it is wrong that we've had this for so long. I mean how can you deny this right to women when even nature has assured maternity? Nature has left many question marks in our lives, but this is not an area where nature has left any doubts. The mother is the mother, you know... There can be no doubt about that.

So whether it was the law or anybody, I was not prepared to let this pass. After all, I had always acted as my children's guardian, invested our savings for them, I just never knew that it wasn't legal. In that sense, the Reserve Bank did me a favour by sticking to the letter of the law, and giving me the chance to fight the law itself. My husband (Dr Mohan Rao, who teaches community health at the Jawaharlal Nehru University in New Delhi), agreed that we must appeal this law.

You should then be pleased with the result of your efforts...

Well, I don't know, considering that this is only half the victory, but I would say I was pleased. You realise, of course, when I say I was pleased, how little one has come to expect from our system. But we are certainly not going to let even this positive judgment be wasted. We want people to realise that our case is a test case in that it illustrates the discriminatory nature of our laws, as well as the fact that my husband and I are fighting it as co-petitioners. I hope that sends some sort of signal to middle-class women that the struggle for women's rights operates on many, many levels -- at more fundamental aspects of the struggle, as well as smaller aspects such as this. These are also issues that someone has to take up.

Most people are terrified of fighting a case in our courts. What made you fight the case against the Hindu Minority and Guardianship Act?

There was no question of accepting this. Having first been brought up to believe that you must get married, and then that you are incomplete as a woman without any children, I found the whole idea that women cannot be the natural guardian of their children ridiculous. After all, I have always paid my taxes, as well as taxes on anything my children earn (by way of interest, etc). So my money is all right with the government, but I as a mother can't sign on behalf of my children unless my husband is dead or mentally unfit!

And it isn't just that; it is the fundamental idea that the mother cannot be the natural guardian that is ridiculous. I mean here is something that aptly illustrates how anti-women our Indian laws are. In this case even the most chauvinistic of people would say that this is absurd.

Do you think it is our laws that are flawed, or merely our interpretation of them?

The law, if I may say so, is an amoeba riddled with parasites. We have so many laws that applied at earlier times and are now obsolete. There is no question, for example that across the classes, women are functioning as financial providers to their families, and even so this law had persisted. So we have to continually look at the validity of our laws. It is an ongoing process. And people are doing that. The Law Commission said in 1989 that this provision 6(a) of the Hindu Minority and Guardianship Act should be amended. And if people are going to look at obsolete laws, then they should start with the Hindu Personal Law, as the Hindu law affects the most number of women in India.

Would you say you are in favour of a common civil code?

Ah... these days you have to be very careful when you talk about a uniform civil code in India. It has acquired a certain baggage now that makes it a convenient stick to beat the minorities with. There seems to be a sort of implicit statement there that the Hindu personal law is some sort of model code, and that's simply not true. And that is why we should start our fight there.

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