Legal recognition of single motherhood in India.

Through ABC v. The State (NCT of Delhi), the Hon’ble Supreme Court came to the rescue of unmarried mothers.

In the progressive judgment, the court stated that an unwed mother was allowed to apply for sole guardianship of her child without having to send ‘the mandatory notice’ to the uninvolved father. Moreover, she may not be forced to reveal the name of the father against her wish. At the same time, the identity of the father may also not be required for obtaining the child’s birth certificate. This gave all the hurting women who wanted to have a child without having the implications of an unjust social barrier that the society had put up in the form of marriage and a husband, a much-needed relief.

What led to the case and the judgment

The appellant was a financially stable and secure woman who was a follower of the Christian faith, was very well-educated, and gainfully employed . She was raising her son without the assistance of his biological father but when she wanted to appoint her son the nominee of her savings, she was asked to either disclose the name of the father or get a guardianship/adoption certificate from the court.

She was not in favor of disclosing the name of the father and why should she. She filed an application under Section 7 of the Guardians and Wards Act, 1890 which gives the power to the court to make an order as to guardianship to be appointed the sole guardian of the child. 

The procedure under Section 11 requires a notice to be sent to the parents of the child, i.e. the father in the present case. She had to publish a notice in the local newspaper but was unwilling to reveal the name of the father. She also filed an affidavit swearing that the guardianship rights shall be altered if, in the future, the father of the child raised any objections to the same.

According to the Indian law, parents, if alive, have to be mandatorily made a party to such proceedings. Therefore in this case as well, it was necessary to reveal the identity of the father to issue the process to him. 

Given her constant refusal to disclose the name of the father, the Guardian Court and the Delhi High Court dismissed her petition. Aggrieved by the dismissal, she filed an appeal before the Supreme Court.

The appeal was allowed after the following considerations-

‘The maternity of mothers held supreme for children born out of wedlock.’

Many countries such as the United Kingdom, United States, Ireland, Philippines, and even India uphold the parental and custodian rights of a mother over that of a father, on a child born out of wedlock. For instance the Hindu Minority and Guardianship Act, 1956 gives priority to the mother concerning the provisions for natural guardians of illegitimate children; the Guardianship of Infants Act, 1964 (Ireland) says “the mother of an illegitimate infant shall be the guardian of the infant” etc. The same was remarked by the Hon’ble Supreme Court.

‘Interpretation of Sections 11 and 19 of the Guardians and Wards Act, 1890’

Section 11 reads as –

Procedure on admission of application: If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof, and cause notice of the application and of the date fixed for the hearing-

(a) to be served in the manner directed in the Code of Civil Procedure,1882(14 of 1882)11 on-

(i) the parents of the minor if they are residing in any State to which this Act extends

And in the case of illegitimate children with a single parent to take responsibility for, the Supreme Court has interpreted the term ‘parents’ above to essentially mean that single parent only. Hence, on an application by the aforementioned single parent to be appointed as a sole guardian, no notice is required to be sent to the uninvolved parent. But, this does not take away from the uninvolved parent’s right to approach the Guardian Court to modify or quash its orders later, if in the best interest of the child.

Section 19 reads as-

Guardian not to be appointed by the court in certain cases: Nothing in this Chapter shall authorize the court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person-

(a) of a minor who is a married female and whose husband is not, in the opinion of the court, unfit to be the guardian of her person; or

(b) of a minor whose father is living and is not in the opinion of the court, unfit to be the guardian of the person of the minor; or

(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.

In all situations where the father is not in actual charge of the affairs of a minor due to his indifference or any other reason, he would be deemed to be considered ‘absent’ for the purposes of section 19(b) of the Guardians and Wards Act, 1890 and the mother can act as the actual guardian of the child.

In other words, the Hon’ble Supreme court clearly refused to prioritize the rights of a father over that of a mother on an illegitimate child if he is not involved in the upbringing of the child.

‘Therefore, an independent mother can raise her child, and legal recognition of a deserting father is not required.’

India today witnesses several mothers who are willing enough to raise their child on their own when the assumed father has abandoned them both. Now a question arises whether the ‘biological father’ who played no role of a father in the child’s life beyond his conception, deserves legal recognition. The Supreme Court had answered this question in negative and held that, in the best interest of the child, he need not be thrust upon an uncaring father.

‘Right to privacy of the mother’

The Supreme Court also recognized the right to privacy of an unwed mother upholding that the same would be violated if she is asked to disclose the name and particulars of the father of her child against her will.

‘Child’s right to know the identity of his parents’

The Supreme Court duly acknowledged the right of a child to know the identity of both of his parents. The same was impressed upon the mother in the case at hand. She was interviewed to disclose the name and details of the father. But, the information received therein was not made public. The information is kept in an envelope duly sealed and may be read-only as per some specific directions of the court, when in the best interest of the child.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

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