Right of Unwed Mother to Uphold Guardianship over a Minor

This Article was written by Kriti Bhatia a law student from University Institute of Legal Studies, Punjab University. 

India is a nation well known for its culture and religious diversity.  People here are quick at adapting not only in terms of apparels but also in their thoughts as westernization is on a rise here. People have a modern outlook which was exhibited in the recent judgment of Supreme Court where the Unwed Mother is bestowed with the sole guardianship of her child in the absence of the father.

Unwed Mother as defined by dictionary is an unmarried lady who has a dependent child or children. Prior to Supreme Court judgment, an unwed mother could not hold the sole guardianship of the child without the consent of the father.  She was even forced to disclose the identity of the father in order to get the birth certificate. However in Hindu law, as according to Hindu Minority and Guardianship Act 1932, the legal guardian of an illegitimate child is a mother but this provision was not available to the mother of different religion. According to section 19(b) of the Guardianship and Wards Act 1890, the minor whose father is alive and in the Court’s opinion is not unfit, the mother cannot be the guardian without his consent. Hence a mother has to disclose the identity of the father of the child, but the situation has changed entirely after the order passed in the recent case of Supreme Court.

The order came on a plea by a Christian woman, who had challenged orders passed by a trial court and Delhi high court. Both had been directing her to reveal the name of her child’s father when she sought guardianship of the child to make him nominee to her property. The child, born in 2010, was raised by the woman without any assistance from his biological father.

During the hearing, the judges interacted with the woman in the chamber and she disclosed the name of her child’s father and his other details. She told the bench that the man was already married and had shown no concern for her child.

The case was decided by a bench of Justices Vikramajit Sen and Abhay Manohar Sapre and the verdict of case goes like.

“In situations such as this, 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 well-being of the child, 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 contrary, we find that this may well protect the child from social stigma and needless controversy” meaning thereby an unwed mother must be recognized as the legal guardian of her child and she cannot be forced to name the father, nor does she need his consent, while deciding guardianship rights. The father’s consent was unnecessary as it would mean giving legal recognition to the man who had left the mother and showed no concern for his offspring’s welfare. The order, however, would not affect the child’s right to know the father’s identity.

The order further emphasizes on the Uniform Civil Code in India as Christian unwed mothers in India are disadvantaged when compared to Hindu counterparts, who are the natural guardians of their illegitimate children by virtue of their maternity alone. This order is the first step towards the triumph of Directive Principle of Universal Civil Code which has been nothing more than an unaddressed constitutional expectation.

This order not only emphasizes on Uniform Civil Code but also stresses on equal rights of men and women.  Earlier only men could be the legal guardian of the child but after this judgment an unwed mother can also be the legal guardian and the child can inherit her financial assets. This is a step which propagates equality among citizens of India.

Besides this, the case mentioned also focuses on the welfare of the child. Welfare of the child is the paramount consideration while appointing the guardian for him and if the father is so indifferent towards the child or he does not even care to know about his offspring then it’s better to choose the mother as a guardian. The following judgment by Justices Vikramjit Sen and A.M. Sapre makes it clearer.

“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, Any responsible man would keep track of his offspring and be concerned for the welfare of the child he has brought into the world; this does not appear to be so in the present case.”

The judgment, observed that a man who has chosen to forsake his duties and responsibilities is not a necessary constituent for the well-being of the child and therefore allowing the mother to apply for guardianship without disclosing the name of the biological father.

Besides this, the court agreed with the woman, who preferred anonymity and is known only by the acronym ‘ABC’ on court records, that it would be beneficial if the father’s name is not disclosed now. She said the guardianship can be altered if the father raised any objections.

Hence concluding with this, it can be understood as a step towards change and a perfect way to showcase the modernity in thinking patterns of Indians who used to consider a single mother as a taboo earlier but now have provided them with guardianship rights along with the equal treatment.