An unwed mother of the child can claim herself to be guardian of the child without notifying father #indianlaws

Whether an unwed mother can claim herself to be the guardian of the child without notifying father, was the subject matter for consideration before the Apex Court. The court while recognizing that the father’s right to be involved in his child’s life may be taken away if Section 11 of the Guardians and Wards Act, 1890 (the Act) is read in such a manner that he is not given notice, but given his lack of involvement in the child’s life, held that there is no reason to prioritize his rights over those of the mother or her child. 

Whether an unwed mother can claim herself to be the guardian of the child without notifying father, was the subject matter for consideration before the Apex Court. The Court after referring to position of law prevailing in international jurisdictions and interpreting Section 11 of the Guardians and Wards Act, 1890 (the Act) held it in affirmative.

In the present matter, mother refused to notify father of the child, of her petition seeking guardianship of the child and instead opted for publication of notice through newspaper. The guardianship court, upon her refusal dismissed her petition and the same was also upheld by the High Court in appeal, against which appeal was preferred before the Supreme Court.

Mother contended that issuance of notice to father might have an adverse consequence on the future of child as the father since now already married may refuse to acknowledge the child as his own, such refusal would infuse controversy about child’s paternity. Further, such requirement would also cause an adverse impact upon the married life of father. Thus the requirement of notice would result into social complications for herself and also her child. Any force upon her to disclose name of the father of the child would also infringe her fundamental right to privacy. Instead the issue should be decided keeping in view, the welfare of child. State, on the other hand pressed upon the compliance of service of notice upon father that being the need of law prescribed under the Act, as consent of the father would be necessary.

Hon’ble Supreme Court referred to law prevailing in UK, US and other international jurisdictions which indicates the preponderant position that it is the unwed mother who possesses primary custodial and guardianship rights with regard to her children and that the father is not conferred with an equal position merely by virtue of his having fathered the child.

The Court observed that avowedly, the mother is best suited to care for her offspring, so aptly and comprehensively conveyed in Hindi by the word ‘mamta’. Furthermore, recognizing her maternity would obviate the necessity of determining paternity. It was held that that it is imperative that the rights of the mother must also be given due consideration. The court while recognizing that the father’s right to be involved in his child’s life may be taken away if Section 11 is read in such a manner that he is not given notice, but given his lack of involvement in the child’s life, held that there is no reason to prioritize his rights over those of the mother or her child. The court further viewed that as the intention of the Act is to protect the welfare of the child, the applicability of Section 11 would have to be read accordingly.

In a case where one of the parents petitions the Court for appointment as guardian of her child, the provisions of Section 11 would not be directly applicable. Section 11 applies to a situation where the guardianship of a child is sought by a third party, thereby making it essential for the welfare of the child being given in adoption to garner the views of child’s natural parents. The views of an uninvolved father are not essential to protect the interests of a child born out of wedlock and being raised solely by his/her mother.

The sole factor for consideration is the welfare of the minor child, regardless of the rights of the parents. Section 11 is purely procedural. The provision can be relaxed to attain the intendment of the Act. The term “parent” in the case of illegitimate children can be interpreted as one whose sole caregiver is one of his/her parents, to principally mean that parent alone. Guardianship or custody orders never attain permanence or finality and can be questioned at any time, by any person genuinely concerned for the minor child, if the child’s welfare is in peril. The uninvolved parent is therefore not precluded from approaching the Guardian Court to quash, vary or modify its orders if the best interests of the child so indicate. There is thus, no mandatory and inflexible procedural requirement of notice to be served to the putative father in connection with a guardianship or custody petition preferred by the natural mother of the child of whom she is the sole caregiver.

The court further observed and held that the law is dynamic and is expected to diligently keep pace with time and the legal conundrums and enigmas it presents. The identity of the mother is never in doubt. Accordingly, if a single parent/unwed mother applies for the issuance of a Birth Certificate for a child born from her womb, the Authorities concerned may only require her to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate, unless there is a Court direction to the contrary. It was held as the responsibility of the State to ensure that no citizen suffers any inconvenience or disadvantage merely because the parents fail or neglect to register the birth. It is the duty of the State to take requisite steps for recording every birth of every citizen.

[ABC vs. State (NCT of Delhi)]

SC, 06.07.2015