In a progressive judgment, Supreme Court has allowed an unmarried mother to apply for guardianship of her child without sending a mandatory notice to the father who did not have any ties with the child after its birth. Court has also directed that name of the father may not be made public and may also not be necessary for obtaining child’s birth certificate, passport and for school purposes.
Holding that “the law is dynamic and is expected to diligently keep pace with time and the legal conundrums and enigmas it presents”, SC bench comprising of Justices Vikramjit Sen and Abhay Manohar Sapre overturned a Delhi High Court order which had dismissed the Appeal there without going into the merits and holding that guardinaship cannot be granted without making the natural father a party in the case and serving him.
|Civil Appeal No. 5003 of 2015
|ABC v. The State (NCT of Delhi)
- Justice Vikramajit Sen
- Justice Abhay Manohar Sapre.
|Date of Judgment
|6 July 2015
The appellant before the Court was an unwed mother who was a well-educated, gainfully employed and financially secure. She follows Christian faith. In 2010, she had given birth to a male child and raised him without any assistance from or involvement of his putative father. With a view to make her son, her nominee in all her savings and other insurance policies, she filed an application with the local authority for guardianship of the child. However she was informed that she must either declare the name of the father or get a guardianship/adoption certificate from the Court.
The woman then filed an application under Section 7 of the Guardians and Wards Act, 1890 [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. Though she published a notice in a daily local, she remained averse to notifying the father’s name. However she filed an affidavit stating that if in future, the father raises any objection, the guardianship may be revoked or altered.
11. Procedure on admission of application.—
(1) If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof and cause notice of the application and of the date fixed for the hearing—
(a) to be served in the manner directed in the Code of Civil Procedure, 1882 (14 of 1882)1 on—
(i) the parents of the minor if they are residing in any State to which this Act extends;
Guardianship Court denies right as father’s name not revealed
In April 2011, 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.
High Court dismisses appeal in limine
[pullquote]Delhi HC: “Possibly I can say that the appellant/petitioner is not being appropriately advised.”[/pullquote]On 8 August 2011, Delhi High Court dismissed the appeal in limine holding that her allegation that she is a single mother could only be decided after notice is issued to the father. HC observed that a natural father could have an interest in the welfare and custody of his child even if there is no marriage and that no case can be decided in the absence of a necessary party. HC observed:
Whether or not there is marriage, the same can be known only after the natural father is served, and who could not be served, in the face of the unfortunate stand of the petitioner/appellant that the name, particulars and the address of the father will not be supplied. Also, even assuming that there is no marriage, the natural father would also have an interest in the welfare/custody of the child and also the child’s guardianship.
3. It is a fundamental principle of law that no case can be decided in the absence of a necessary party. Non-joinder of a necessary party is fatal to a case. Surely, the father is a necessary party to the case and the petitioner/appellant cannot be allowed to get a decision in her favour merely by impleading the State as the respondent i.e., without making the natural father as a respondent in the case and serve him.
Appeal to Supreme Court
Aggrieved by the HC’s dismissal of her appeal without going into the merits of the case, the woman approached the Supreme Court vide Special Leave Petition (Civil) No. 28367 of 2011. On her request, Court did not disclose her identity and that of her child and the case was named as ABC v. The State (NCT of Delhi). Her case was argued by Senior Counsel Ms. Indu Malhotra.
It was submitted that the future of her child would be marred by any controversy regarding his paternity should the father refuse to acknowledge the child as his own. It was also submitted that as the father is already married, any publicity as to a declaration of his fathering a child out of wedlock would have pernicious repercussions to his present family and there would be severe social complications for her and her child. It was put forward that as, as per Section 7 of the Act, the interest of the minor is the only relevant factor for appointing of a guardian, and the rights of the mother and father are subservient thereto.
7. Power of the court to make order as to guardianship
(1) Where the court is satisfied that it is for the welfare of a minor that an order should be made-
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian, the court may make an order accordingly.
Supreme Court, feeling that the question arisen in the matter is of far reaching dimensions, appointed senior counsel Mr. Sidharth Luthra as an amicus curiae.
Respondent – Government of NCT of Delhi justifying its stand, contended 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.
The bench reserved its verdict on and pronounced it on 6 July 2015, in favour of the appellant woman.
Other Personal Laws discussed
- Hindu law: 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.
Supreme Court then concluded that the above indicates that priority, preference and pre-eminence is given to the mother over the father of the concerned child.
International position referred to
Supreme Court also referred to the laws and judgments pronounced in other countries like United Kingdom, United State of America, Ireland, Philippines, New Zealand and South Africa and felt that “it should assist in a meaningful, dynamic and enduring interpretation of the law as it exists in India.
[Legal position in other countries] 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.
[pullquote]Avowedly, the mother is best suited to care for her offspring, so aptly and comprehensively conveyed in Hindi by the word ‘mamta’.[/pullquote]
Women can raise children alone in today’s world
Supreme Court made certain important observations in its judgment:
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 well being of the child.
India is secular nation and religion must be distanced from law.
Observing that the reference to laws in other countries was to have a holistic understanding of what a variety of jurisdictions felt would be in the best interest of the child and not to understand the tenets of Christian law, bench held:
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.
Privacy must be respected
Court held that woman’s fundamental right of privacy would be violated if she is forced to disclose the name and particulars of the father of her child. It observed that any responsible man would keep track of his offspring and be concerned for the welfare of the child he has brought into the world and this did not appear to be so in the present case.
Parent in Section 11 can mean a single parent
Accepting the woman’s contention of letting her alone be the parent, SC held:
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.
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.
Child may have a right to know his parents
Referring to the Universal Declaration of Human Rights to which India is a party, court observed that right of a child to know the identity of his or her parents has found unquestionable recognition in the Convention. Court also obtained the name and available particular of the father in a duly sealed envelope.
Father’s name not needed for birth certificate, passport and school purposes
It may be recalled that owing to curial fiat, 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.
Accordingly, we direct that 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.
Allowing the appeal of the woman, SC directed the Guardian Court to recall the dismissal order passed by it and thereafter consider the application for guardianship expeditiously without requiring notice to be given to the putative father of the child.