Unwed mothers can become the sole guardian of child: SC | Live Law

Supreme Court in its latest judgement speaking through hon’be Vikramajit Sen J. held that: Unwed mothers can become the sole guardian of child without disclosing father’s name or his consent. Judgement was directed against order of Delhi High Court.

Case Name: ABC vs. State (NCT of Delhi) 2015

Reading judgement. a unwed lady gives birth to a child in 2010 and raises the child own her own without any help coming from the putative father and wants to make child nominee in insurance policies. for which she requires guardianship certificate. She applied under section 7 of Guardians and Wards Act 1890 (applicable to Christians, as appellate in case is christian) for declaring her sole guardian of the child but the Act under section 11 requires a notice to be sent to parents ( here putative father) before declaring a person guardian. The lady published notice of the petition in a newspaper but didn’t want to name the father. Henc her petition was dismissed. Her appeal in Delhi High Court against the dismissal order was also dismissed at the very threshold on the ground that putative father may have interest in welfare of the child and child also have right to know about his/her father.

The lady (appellate) argued that since under said section 7 interest of child is paramount, disclosing the name of father who is already married to someone else and chances of his not-owning the child as his own child and consequent controversy is against interest of child. Secondly appellate has right to privacy.

It was contended on behalf of the State that Section 11 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. The impugned judgment is, therefore, in accordance with the Act and should be upheld.

Court held that respondent’s interpretation does not impart comprehensive significance to Section 7, which is the quintessence of the Act. As the intention of the Act is to protect the welfare of the child, the applicability of Section 11 would have to be read accordingly.

Court referred to Hindu Guardianship and Minority Act, Muslim Personal Law, Indian Succession Act, Children Act 1989 (United Kingdom), Guardianship of Infants Act 1964(Ireland), Article 176 of the Family Code of the Philippines, Care of Children Act 2004 (New Zealand) to conclude 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.

court observed: “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. The Appellant has taken care to clarify that should her son’s father evince any interest in his son, she would not object to his participation in the litigation, or in the event of its culmination, for the custody issue to be revisited.”

Interpretation of law: “In a case where one of the parents petitions the Court for appointment as guardian of her child, we think that the provisions of Section 11 would not be directly applicable. It seems to us that Section 11 applies to a situation where the guardianship of a child is sought by a third party, thereby making it essential for the welfare of the child being given in adoption to garner the views of child’s natural parents.

Section 11 is purely procedural; we see no harm or mischief in relaxing its requirements to attain the intendment of the Act. 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. Guardianship or custody orders never attain permanence or finality and can be questioned at any time, by any person genuinely concerned for the minor child, if the child’s welfare is in peril. The uninvolved parent is therefore not precluded from approaching the Guardian Court to quash, vary or modify its orders if the best interests of the child so indicate. There is thus no mandatory and inflexible procedural requirement of notice to be served to the putative father in connection with a guardianship or custody petition preferred by the natural mother of the child of whom she is the sole caregiver.”

Thus it is no longer necessary to state the name of the father in applications seeking admission of children to school, as well as for obtaining a passport for a minor child. However, in both these cases, it may still remain necessary to furnish a Birth Certificate. if 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.

Words:

Nodus ( a problem or difficulty)

Conundrum (difficult question)

Ubiquitous (all over the place, found everywhere, universal)

Wrangle (long and complicated dispute)

Nebulous (vague, hazy, ill-defined)

Apposite (Apt in the circumstances)

Fiat (formal authorization or decree)

 

 

 

Source: Unwed mothers can become the sole guardian of child: SC | Live Law

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