NEW DELHI: 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 Supreme Court ruled on Monday in a path breaking verdict on gender equality.
A bench of Justices Vikramajit Sen and Abhay Manohar Sapre said it was necessary to protect the child from social stigma. But it was equally important to protect the unmarried mother’s fundamental right by not forcing her to disclose the name and particulars of her child’s father.
The bench said 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.
“It is abundantly clear that 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. Avowedly, the mother is best suited to care for her offspring, so aptly and comprehensively conveyed in Hindi by the word ‘mamta’,” the bench said, taking note of laws of other countries on protecting unwed mothers’ rights.
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 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. She had disclosed the name of her child’s father and other details about him to them. She told the bench that the man was already married and had shown no concern for her child.
“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,” the bench said, recognizing the delicate position of the woman.
“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,” it said.
The bench said the welfare of a minor child should be the sole consideration in deciding such issues, regardless of the rights of the parents.
“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,” it said.
The court said the Guardians and Wards Act, which applies to Christians in India, does not define the term parent and ruled that the person who is caring for the child would be held to be the parent in the case of children born to unwed couples. It said guardianship or custody orders 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,” it said.
(Times of India, 7 July 2015)
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