The Hon’ble Supreme Court of India in a landmark judgment delivered on 6^th July 2015 held that unwed mother is not required to specifically notify the putative father of the child whom she has given birth to. The judgment was passed in an Appeal directed against the Judgment delivered by the High Court of Delhi, which had dismissed the First Appeal of the Appellant, who is an unwed mother, holding that her guardianship application cannot be entertained unless she discloses the name and address of the father of her child.

The Appellant, who adheres to the Christian faith, is well educated, gainfully employed and financially secure. She gave birth to her son in 2010, and has subsequently raised him without any assistance from or involvement of his putative father. Desirous of making her son her nominee in all her savings and other insurance policies, she took steps in this direction, but was informed that she must either declare the name of the father or get a guardianship/adoption certificate from the Court. She thereupon filed an application under Section 7 of the Guardians and Wards Act, 1890 (the Act) before the Guardian Court for declaring her 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. The Appellant published a notice of the petition in a daily newspaper, but was strongly averse to naming the father. She also filed an affidavit stating that if at any time in the future the father of her son raises 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 2011. The Appellant’s appeal before the High Court was dismissed in limine, on the reasoning that her allegation that she is a single mother could only be decided after notice is issued to the father; that a natural father could have an interest in the welfare and custody of his child even if there is no marriage. The Appellant therefore approached the Hon’ble Supreme Court.

It was contended before the Hon’ble Supreme Court that Section 11 of the Act requires a notice to be given to the ‘parents’ of a minor before a guardian is appointed; and that as postulated by Section 19, a guardian cannot be appointed if the father of the minor is alive and is not, in the opinion of the court, unfit to be the guardian of the child.

While passing the judgment, the Hon’ble Supreme Court appreciated the manner in which the same issue has been dealt with in other statutes and spanning different legal systems across the globe which are enumerated herein under.

Section 6(b) of the Hindu Minority and Guardianship Act, 1956 makes specific provisions with respect to natural guardians of illegitimate children, and in this regard gives primacy to the mother over the father. Mohammedan law accords the custody of illegitimate children to the mother and her relations. The law follows the principle that the maternity of a child is established in the woman who gives birth to it, irrespective of the lawfulness of her connection with the begetter. 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. This indicates that priority, preference and pre-eminence is given to the mother over the father of the concerned child.

In the United Kingdom, Section 2(2) of the Children Act 1989 parental custody of a child born of unwed parents is with the mother in all cases, and additionally with the father provided he has acquired responsibility in accordance with the provisions of the Act. To acquire responsibility, he would have to register as the child’s father, execute a parental responsibility agreement with the mother or obtain a Court order giving him parental responsibility over the child. In the U.S.A., each State has different child custody laws but predominantly the mother has full legal and physical custody from the time the child is born. Unless an unmarried father establishes his paternity over the child it is generally difficult for him to defeat or overwhelm the preferential claims of the mother to the custody. In Ireland, Section 6(4) of the Guardianship of Infants Act, 1964 ordains - “The mother of an illegitimate infant shall be guardian of the infant.” Article 176 of the Family Code of the Philippines explicitly provides that “illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code.” The law in New Zealand, as laid out in Section 17 of the Care of Children Act, 2004, is that the mother of a child is the sole guardian if she is not married to, or in civil union with, or living as a de facto partner with the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child. In South Africa, according to the Children’s Act No. 38 of 2005, the biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child. This conspectus indicates that 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 predominant legal thought in different civil and common law jurisdictions spanning the globe as well as in different statutes within India is to bestow guardianship and related rights to the mother of a child born outside of wedlock. In situations where the father has not exhibited any concern for his offspring, giving him legal recognition would be an exercise in futility. In today’s society, where women are increasingly choosing to raise their children alone, 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 wellbeing of the child.

In Laxmi Kant Pandey vs.Union of India[i], this Court prohibited notice of guardianship applications from being issued to the biological parents of a child in order to prevent them from tracing the adoptive parents and the child. A three Judge Bench of the Supreme Court in Githa Hariharan vs. Reserve Bank of India[ii] observed “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 and Section 19(b) of the Guardian and Wards Act.”

The sole factor for consideration, therefore, is the welfare of the minor child, regardless of the rights of the parents.

Dominic Braganza

Partner

Abhay Nevagi & Associates, Advocates, Pune

[i] 1985 (sup) SCC 701

[ii] (1999) 2 SCC 228