Brief background of the case
The Supreme Court of India on July 6, 2015 pronounced a judgment on the rights of an unwed mother to be the sole guardian of her child. In the judgment, the Supreme Court observed that if an unwed mother wants to become the guardian of her child she does not need to disclose the identity of her husband. This judgment sets aside the order of the trial court and the Delhi High Court which ruled that an unwed mother must declare the identity of the father for guardianship of the child. The Apex Court headed by Hon’ble Justice Vikramajit Sen stated that the Trial Court and the High Court overlooked the welfare of the child while delivering such a judgment.
In this matter the mother was a government officer who had been taking care of the child since his birth in 2012. The father of the child did not even have any knowledge of the birth of the child and the woman did not even want the world to know about him, as the man was already married and such a disclosure would have had serious repercussions on his married life also and would create hurdles for the mother and the child as well. In this matter keeping the identity of the mother undisclosed the case has been named as ‘ABC versus The State (NCT of Delhi)’.
Under the Hindu Minority and Guardianship Act, a child’s natural guardian, both for the person and property, is first the father and then the mother. He can only be deprived of the right of guardianship only if he is found to be unfit or incapable of acting as guardian. Mother can be a guardian only when the father cannot act as guardian or she can be the guardian to her illegitimate children but this could be only when the identity of the father is made known.
Section 7 of Hindu Minority and Guardianship’s Act requires a notice to be given to the ‘parents of the minor’ before the guardian is appointed but the Supreme Court observed that a man who choses to forsake his duties and responsibilities towards his child is not a necessary constituent for the well being of his child and thus it would be a futile act to follow the requirement of issuing a notice to such a father. Keeping alive the spirit of section 19 of the above mentioned Act which states that the welfare of the child is of paramount consideration, the Hon’ble Court held that in the present case also where the woman has been taking care of her child for so many years can very well take care of him in the years to come. The Hon’ble Court also referred to the Guardianship Acts of other religions and also to the Universal Declaration of Human Rights to arrive at this conclusion.
This judgment gives the following rights to the mother, father and the child:Right of the mother
This judgment would transfer many of those rights to the mother which were earlier vested in the father:
- The mother would be considered as the sole guardian of the child. As a sole guardian, she would have all the rights to take care of the child, make day to day decisions for the child, etc. Mother would be considered the sole guardian of the child.
- She is under no obligation to disclose the identity of her son’s father to take the guardianship of her child. This would prevent the woman from the harassment she has to face to get the guardianship of her child.
- She would be vested with all the powers and would be under an obligation to carry out all the responsibilities of the child.
Right of the father
In this matter as stated by the mother that if the father later comes to claim the right of guardianship or evinces any interest in his child, the judgment could be revoked and the custody issue can be re-visited but the obligation of issuing a notice to the parents before granting guardianship would be done away with. This shows that the judgment is not biased to woman and the only consideration of the court in this judgment is the interest of the child and thus the custody is given to the person who best serves the interest of the child.
Right of the child
The child would have the right to inherit the property of her mother as would have inherited that of his father’s otherwise. Thus the child would be considered to be her mother’s heir.
- He would not be required to give the name of his father in any forms or applications as is traditionally required. Just the name of the mother would suffice as she is now the sole guardian of her child.
- The right of the child to know the identity of his father (or parents) is not violated, undermined, compromised or jeopardized. So, when the child wishes to know the name of his/her parents, he/she can obtain that.
- This judgment would also protect the right of a child born to a sex worker as it is very difficult to establish paternity in such matters. This shows the wide and positive impact of the judgment.
Solution if the father appears and claims guardianship:
In this situation as stated above if the father later appears and claims the right of the child the judgment can be re-opened and a fresh hearing over the guardianship issue can be conducted. This has been done, so that no one challenges the judgment on the ground that it violates the right of the father to be a guardian by not issuing a notice to him and does not make the judgment lose its validity. Thus this judgment does not bar the right of the father and has been decided in lines with a person’s ‘right to be heard’.
This judgment is considered to be a ‘progressive’ one as it breaks the orthodox notion of male dominance and gives right to the woman to take care of her child and be the child’s sole guardian without naming her son’s father. It recognizes the identity of the mother independent of the father. The court stated that a child is not a chattel or a ball to be shunted or shuttled from one parent to another. The child should not be the one suffering due to the personal differences and animosity of the two adults as even the Guardians and Wards Act, 1890 states that the interest of the child is of paramount consideration. A man who chooses to forsake his duties and responsibilities towards his child is not a necessary constituent for the well being of his child. The court further observed that a father would keep a track of his child and be concerned about his well being and if a father does not fulfill these basic duties, it would be a futile act asking him to give consent.