- By Mitali Yadav

In the case of ABC vs. The State (NCT of Delhi), the Supreme Court (a bench headed by Justice Vikramajit Sen) has held that an unwed mother, in India, can apply to become the sole guardian of a child, without giving notice to the father of the child and without disclosing his identity.

The appellant had filed an appeal directed against the order of the Delhi High Court, which had dismissed the first appeal of the appellant who was an unwed mother. The Delhi High Court had held that her guardianship application could not be entertained unless she discloses the name and address of the father of her child.

The main issue before the Apex Court in the appeal was whether it is necessary for an unwed mother to mention the name and whereabouts of father of the child whom she has given birth to while applying for guardianship of the child.

Fact of the case provide that the appellant was a well-educated and financially secured woman of the Christian faith, who gave birth to her son in 2010 and subsequently raised him without any assistance from his putative father. Wanting to make her son her nominee in all her savings and other insurance policies, she was informed that, she must either declare the name of the father or get a guardianship adoption certificate from the Court. She thereafter filed an application under Section 7 of the Guardians and Wards Act, 1890 (hereinafter referred to as “Act”) before the Guardian Court for declaring her as the sole guardian of her son. Section 11 of the Act requires a notice to be sent to the parents of the child before a guardian is appointed. She had published a notice of the petition in a daily newspaper and also filed an affidavit stating that if at any time in the future, the father of her son raised any objections regarding his guardianship, the same may be revoked or altered as the situation may require. However, the Guardian Court directed her to reveal the name and whereabouts of the father and consequent to her refusal to do so, dismissed her guardianship application.

The appellant’s contention was that Section 7 of the Act gives relevance only to the minor’s interest for appointing a guardian, and that the rights of the mother and father are subservient to the minor’s interest. The appellant contended that there would be severe social complications for her and her child if the identity of the father of the child were to be revealed, as he was an already married man with a family of his own, and that the appellant did not want the future of  the child be marred by any controversy regarding his paternity. She further argued that it is imperative that the rights of the mother must also be given due consideration as her fundamental right of privacy would be violated if she is forced to disclose the name and particulars of the father of her child.

In its contention, the respondent placed reliance on Section 7, 11 and 19 of the Act. It was contended that as per Section 11 of the Act a notice is required to be served to the parents and as per Section 19 a guardian cannot be appointed in case of a minor whose father is living and is, in the opinion of the Court, not unfit to be guardian of the minor. The State contended, therefore, the impugned judgment is in accordance with the law and accordingly it should be upheld.

After hearing both parties, the Supreme Court deemed it necessary to appreciate how other statutes and legal systems of other countries have dealt with the same issue. The Court observed that Section 6(b) of the Hindu Minority and Guardianship Act, 1956 makes specific provisions with respect to natural guardians of illegitimate children, and gives preference to the mother over the father. Further, the Court observed that Mohammedan law accords the custody of illegitimate children to the mother and her relations. Furthermore, as per Section 8 of the Indian Succession Act, 1925, which applies to Christians in India, the domicile of origin of an illegitimate child is in the country in which at the time of his birth his mother is domiciled. Court thus concluded that all these provisions indicate priority, preference and pre-eminence is given to the mother over the father of the child born out of wedlock.

The Court also delved into various provisions of the laws of United Kingdom, Ireland, United States of America, Philippines, New Zealand and South Africa, and found that aforementioned countries have laws that give preference to the mother for guardianship of the minor.

The Supreme Court gave due consideration to the mother’s privacy and considered the appellant’s contention that forcing a woman to reveal the identity of the father would be violative of the mother’s fundamental right of privacy. The Court also observed that Christian unwed 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, without the requirement of any notice to the putative fathers. Court, thus, in the immediate case, found no reason to prioritize the father’s rights over the rights of the mother and child. The Court found that the appellant had adequately protected rights and duties of the father through the affidavit and the publication of notice in a newspaper. 

Referring to Lakshmi Kant Pandey v. Union of India¹, the Supreme Court noted that the same Court has prohibited issuing of notice of guardianship applications to the biological parents of a child in order to prevent them from tracing the adoptive parents and the child. To quote, the Court observed, ‘Although the Guardians and Wards Act was not directly attracted in that case, nevertheless it is important as it reiterates that the welfare of the child takes priority above all else, including the rights of the parents. In the present case we do not find any indication that the welfare of the child would be undermined if the Appellant is not compelled to disclose the identity of the father, or that Court notice is mandatory in the child’s interest. On the other hand, the Apex Court found that this may well protect the child from social stigma and needless controversy.’

The Court noted the judgment given in Githa Hariharan v. Reserve Bank of India², where the RBI had refused to accept an application for a fixed deposit in the name of the child signed solely by the mother. The Court observed that, “In the context of Section 6 of the Hindu Minority and Guardianship Act as well as Section 19 of the Guardians and Wards Act, this Court had clarified that in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother can act as natural guardian of the minor and all her actions would be valid even during the life time of the father who would be deemed to be “absent” for the purposes of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Guardians and Wards Act, 1890.” 

While interpreting Section 11 of the Act, the Court opined that in the current case, single parent has filed a petition for guardianship, whereas, Section 11 applies to the cases where guardianship is claimed by a third party. It was observed thus, “Given that the term “parent” is not defined in the Act, we interpret it, in the case of illegitimate children whose sole caregiver is one of his/her parents, to principally mean that parent alone.”

Court also noted the right of a child to know the identity of his or her parents, as accorded in the  ‘Convention on the Rights of the Child’, to which India acceded to on 11th November, 1992. Pursuant to this, the Court interviewed the Appellant and impressed upon her the need to disclose the identity of the father to her son. The Court said that the appellant had disclosed the name and certain particulars of the father, which the Court then placed within a sealed envelope and ordered that it may be read only after a specific direction of the Court. 

The Court, thus, allowed the appeal and held that an unwed mother in India can apply to become the sole guardian of a child, without giving notice to the father of the child and without disclosing his identity. The Court also directed that if in case 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. 

¹1985 (Supp) SCC 701

²(1999) 2 SCC 228

Mitali Yadav is the founder of Alba Law Offices based in New Delhi.