Abstract: This article throws light on the case of ABC v. State (NCT of Delhi) wherein the Hon’ble Supreme Court duly exercised its parens patriae jurisdiction, securing the future of several hapless children in India─who have been born out of wedlock and thereafter, abandoned by their fathers. The Apex court upholding the interests of one such child granted his unmarried mother the right ─to be appointed the sole guardian without giving any notice to the ‘deserter’ father.
Through its progressive judgment in the case titled – ABC v. The State (NCT of Delhi)[1], the Hon’ble Supreme Court has come to the rescue of unmarried mothers.
Following the judgment, an unwed mother is allowed to apply for sole guardianship of her child without having to send ‘the mandatory notice’[2] to the uninvolved father. Moreover, she may not be forced to reveal the name of the father against her wish. At the same time, the identity of the father may also not be required for obtaining the child’s birth certificate.
Facts of the case
The appellant, a follower of Christian faith, was a well-educated, gainfully employed and financially secure woman. She had raised her son without any assistance of his biological father. To appoint her son the nominee of her savings, she was asked to either disclose the name of the father or get a guardianship/adoption certificate from the court.
She was averse to disclosing the name of the father. Accordingly, she filed an application under Section 7 (Power of the court to make an order as to guardianship) of the Guardians and Wards Act, 1890 to be appointed the sole guardian. The procedure on ‘admission of application for appointment as a guardian’ under Section 11 requires a notice to be sent to the parents of the child, i.e. the father in the present case. She thereafter published a notice in the local newspaper but was unwilling to reveal the name of the father. She also filed an affidavit swearing that the guardianship rights shall be altered if, in the future, the father of the child raised any objections to the same.
However, according to Indian jurisprudence, parents, if alive, have to be mandatorily made a party to such proceedings. Therefore in the instant case, it was necessary to reveal the identity of the father to issue process to him. Subsequently, given her persistent refusal to disclose the father’s name, the Guardian Court and the Delhi High Court dismissed her petition. Aggrieved by the dismissal, she filed an appeal before the Supreme Court.
The appeal was allowed after the following considerations-
‘The maternity of mothers held supreme for children born out of wedlock.’
Countries around the globe – United Kingdom, United States, Ireland, Philippines and even India – uphold the parental and custodian rights of a mother over that of a father, on a child born out of wedlock. For instance – the Hindu Minority and Guardianship Act, 1956 (India) gives primacy to the mother concerning the provisions for natural guardians of illegitimate children; the Guardianship of Infants Act, 1964 (Ireland) says “the mother of an illegitimate infant shall be the guardian of the infant” etc. The same was remarked by the Hon’ble Supreme Court.
‘Interpretation of Sections 11 and 19 of the Guardians and Wards Act, 1890’
Section 11 reads as –
Procedure on admission of application: 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)11 on-
(i) the parents of the minor if they are residing in any State to which this Act extends;…….
In case of illegitimate children with a single parent to provide for, the Supreme Court has interpreted the term ‘parents’ above to essentially mean that single parent alone. Hence, on an application by the aforementioned single parent to be appointed as a sole guardian, no notice is required to be sent to the uninvolved parent. But, this does not take away from the uninvolved parent─ right to approach the Guardian Court to modify or quash its orders later, if in the best interest of the child.
Section 19 reads as-
Guardian not to be appointed by the court in certain cases: Nothing in this Chapter shall authorise the court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person-
(a) of a minor who is a married female and whose husband is not, in the opinion of the court, unfit to be the guardian of her person; or
(b) of a minor whose father is living and is not in the opinion of the court, unfit to be the guardian of the person of the minor; or
(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.
In all situations where the father is not in actual charge of the affairs of a minor due to his indifference or any other reason, he would be deemed to be considered ‘absent’ for the purposes of section 19(b) of Guardians and Wards Act, 1890 and the mother can act as the actual guardian of the child.
In other words, the Hon’ble Apex court has blatantly refused to prioritise the rights of a father over that of a mother on an illegitimate child if he is not involved in the upbringing of the child.
‘Therefore, an independent mother can raise her child, and legal recognition of a deserting father is not required.’
“The father of my child took off” – a story we are not unfamiliar with, in India. But today the climax of the story has independent mothers unlike the helpless ones in the past.
India today witnesses a number of mothers who are willing enough to raise their child on their own when the putative father has abandoned them both. Now a question arises whether the ‘biological father’ who played no role of a father in the child’s life beyond his conception, deserves legal recognition. The Supreme Court has answered this question in negative and held that, in the best interest of the child, he need not be thrust upon an uncaring father.
‘Right to privacy of the mother’
The Supreme Court also recognised the right to privacy of an unwed mother upholding that the same would be violated if she is asked to disclose the name and particulars of the father of her child against her will.
‘Child’s right to know the identity of his parents’
But despite all the above considerations, the Supreme Court duly acknowledged the right of a child to know the identity of his parents. The same was impressed upon the mother in the case at hand. She was interviewed to disclose the name and details of the father. But, the information received therein has not been made public. It is kept in an envelope duly sealed and may be read only as per some specific directions of the court, when in the best interest of the child.
‘Application for issuance of a birth certificate by an unwed mother’
Above all, the Supreme Court has also given directions that─ a single/unwed mother can apply for a birth certificate of a child she gave birth to, merely by furnishing an affidavit to that effect. She does not need to reveal the identity of the father for the same against her wish.
[1] ABC V. State (NCT of Delhi), AIR 2015 SC 2569.
[2] S. 11, the Guardians and Wards Act, 1890.