Unwed mother can be child’s guardian without father’s consent: Supreme Court

A bench led by Justice Vikramjit Sen was adjudicating a plea by a unwed mother who challenged the statutory necessity of involving the father of her child in a guardianship petition.

Written by Utkarsh Anand | New Delhi | Updated: July 6, 2015 7:41 pm
unwed mother, mother guardian, mother father, Supreme court, supreme court guardian, guardian supreme court, supreme court mother, mother supreme court, supreme court news, india news The SC bench was adjudicating a plea by a woman who challenged the statutory necessity of involving the father of her child in a guardianship petition even though she never married him.

In a landmark judgment, the Supreme Court on Monday ruled that an unwed mother can be appointed as the sole legal guardian of her child without the consent of the father.

The court further held that it was not required of the mother to disclose the identity of the father and include him as a party to the guardianship petition in certain cases.

A bench led by Justice Vikramjit Sen noted that the best interest of the child required to do away with the procedural requirement of issuing a notice to the father when a guardianship petition is moved.

The bench was adjudicating a plea by a woman who challenged the statutory necessity of involving the father of her child in a guardianship petition even though she never married him.

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According to her petition, the father does not even know that the child exists.

The Guardians and Wards Act and the Hindu Minority and Guardianship Act require that a notice be sent to the child’s father to obtain his consent when a plea for guardianship is moved.

In this case, the woman has questioned this need, saying any disclosure would create more problems for both parents. She has also asserted her right not to disclose the parentage, arguing that the father had nothing to do with the upbringing of the child.

The woman has pointed out that if identifying the father is not mandatory on a passport application form, this can be allowed in a guardianship case, too, under “exceptional circumstances”.

With a trial court in Delhi and the High Court ruling against the woman, she filed an appeal in Supreme Court in 2011.

While deciding her appeal, the bench said the High Court should not have summarily dismissed her plea and various peculiar facts in this case had to be taken into account.

The bench quashed the orders by the trial court and the High Court. It sent the matter to the trial court for hearing it afresh without issuing a notice to the father.

In 2014, the court had appointed senior advocate Sidharth Luthra to assist it.

The former Additional Solicitor General highlighted two aspects of the case — the right of a child to know about and have the affection of his father, and the father’s right to have knowledge and access to the child.

Citing the ruling in the case of Congress leader N D Tiwari, who accepted a son born out of wedlock following a DNA test, Luthra pointed out that the right of a child to know about the father has been acknowledged as a facet of the fundamental right to life.

About the woman’s right not to reveal the parentage of the child, Luthra said: “Even though an unwed mother does have a right to not disclose the parentage of a child to the world, the said right cannot prevail over the right of a child to know about his roots and origin.”

According to, Luthra, the best interests of the child would require knowledge of the father and a response from him when the mother seeks her appointment as the sole legal guardian.

He also differentiated between a case in which a child has been abandoned and this one, where the father does not even know about the child.

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  1. P
    Jan 12, 2016 at 10:56 am
    this decision is really a relief to those mothers who are suffering from the stigma of being unwed mother and also to the child born out of wedlock. but at the same time it has raised many questions like:- SC says that father's name is not required for issuing birth certificate and for school admissions. but still today at the time of child delivery, hospital authority asks for father's ideny. what to do in that case where the father is nowhere willing to take any kind of responsibility of the child? Moreover when the child grows up and if he/she wishes to apply for govt. jobs, what will he/she do? because in the application forms there is only space for father or husband name. In this case what will he/she write? I think SC as well as our govt. should also allow mother's name as an guardian ideny option in all issues like jobs, admission to schools and colleges etc. why only pport issued to minors can contain mother's name? why this is not applicable for adults? if any person wishes to use his/her mother's ideny then why not allow them to do so? SC should think about all these matters. A unwilling irresponsible father's ideny will only put scar on the child's future.
    1. A
      Abhisek Panda
      Jul 6, 2015 at 11:12 pm
      Exemplary Now India headed one more step towards women empowerment Jay Hind
      1. A
        Abhisek Panda
        Jul 6, 2015 at 11:10 pm
        The decision is exemplary with absolutely no problems except one as defined Karunakaran below in 3rd comment. In that case may be some fathers will be wanting to file a case and this will further increase the numbers where Indian jurisdiction is already suffering from number of cases. However, though this's a problem but that does not mean that the decision should not have been taken. Whatever may be the future, but it looks bright overall. Hats of SC. India stepped one more towards women empowerment.
        1. R
          Jul 6, 2015 at 11:22 am
          This is OK for this particular case and any case where the father is a deadbeat. But what about those fathers, who genuinely want to be fathers, it would be unfair to deny them custody.
          1. K
            Jul 6, 2015 at 11:11 am
            To an extent I agree. But "unwed" tag gets a w new meaning where an unmarried couple are in a live-in relationship. True they have not gone through a formal ritual called marriage. But the live-in relationship has already been accepted by SC as having the obligations on each partner as if they were a spouse in the sense of being the married status. In other words, live-in relationship is considered by the courts of law to be no different to a married relationship. If that is the case, the father has a certain interest in the child/children. But this ruling clearly implies that, in the case of live-in relationship, the father has no rights over his children. I am a little confused.
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