Acknowledging that women are increasingly choosing to raise their children alone in modern society, 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.
A bench of Justices Vikramjit Sen and Abhay M Sapre also ruled that authorities must issue birth certificates for children of single parents or unwed mothers if affidavits of guardianship are furnished.
The bench was adjudicating a plea by a Christian woman, who challenged the statutory necessity of involving the father of her five-year-old son in a guardianship petition even though she never married him — the father does not even know that the child exists.
The bench held that the procedural necessity of involving the father in a guardianship petition has to be dispensed with in the best interests of a child, for whom the mother has been the only caregiver.
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“We see no purpose in imposing an unwilling and unconcerned father on an otherwise viable family nucleus. It seems to us that a man who has chosen to forsake his duties and responsibilities is not a necessary constituent for the well-being of the child,” said the bench.
It added that when the father has not exhibited any concern for his child, giving him legal recognition would be an exercise in futility — his views were not essential to protect the interests of a child that is born out of wedlock and being raised solely by the mother.
The bench asserted that the welfare of a child takes priority above all else, including the rights of the parents. It discussed the law on guardianship in countries like the UK, the USA, New Zealand, Philippines and South Africa, and noted that it is the unwed mother who possesses primary custodial and guardianship rights of her children there.
“The father is not conferred with an equal position merely by virtue of his having fathered the child,” it said.
The bench gave a liberal interpretation to Section 11 of the Guardians and Wards Act, ruling that in the case of illegitimate children whose sole caregiver is one of his or her parents, the term “parent” would mean principally mean that parent alone.
In this case, the petitioner had applied for guardianship as she wanted to make her son her nominee in all her savings and other insurance policies, and also to protect the child’s inheritance and property rights.
The law requires that a notice be sent to the child’s father to obtain his consent. But the woman questioned this need, saying disclosure would create more problems for both parents.
She also asserted her right not to disclose the parentage, arguing that the father had nothing to do with the upbringing of the child. She had appealed against orders of the trial court and the Delhi High Court, which said a notice should be sent to the father.
The bench dismissed the lower courts’ orders and asked the guardianship court to decide her plea afresh.
The bench also decided not to be swayed by the tenets of Christian law, and said: “India is a secular nation and it is a cardinal necessity that religion be distanced from law. Therefore, the task before us is to interpret the law of the land, not in light of the tenets of the parties’ religion but in keeping with legislative intent and prevailing case law.”
It further noted that unwed Christian mothers in India are disadvantaged when compared to their Hindu counterparts who are the natural guardians of their illegitimate children by virtue of their maternity alone.
“It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation,” the bench stated.