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Unwed mother's right over guardianship of child: ABC v. The State(NCT of Delhi)
Date of Judgement: 06/07/2015
Factual background:
The appellant was an unwed mother who gave birth in 2010 and was a Christian by faith. She had been raising her child without any aid or assistance from the child’s father and subsequently sought guardianship. Later, when she sought to add her son’s name as the nominee to her savings and insurance policies, she was asked to obtain a Guardianship Certificate and disclose the identity of the child’s father to effectuate the same.
An application was thus filed before a Guardian Court under Section 7 of the Guardians and Wards Act, 1890 (for short GW). Therein, she was asked to fulfil the precondition laid down under Section 11 of the Act which involved notifying the father of the child as well. Subsequently, a publication was made in a newspaper having circulation in Delhi but the appellant continued to refrain from disclosing the father’s identity. Nonetheless, the Guardian Court pressed on the fact that the appellant had failed to notify the father as per the precondition under Section 11 and rejected her application on 19/04/2011.
She then went ahead and filed an appeal before the High Court of Delhi. However, the appeal gave no relief as the High Court dismissed her contention on the ground that a necessary party was absent.
This resulted in the filing of an appeal before the Hon’ble Supreme Court against the order of the High Court dated 08/08/2011 with the following question “whether an unwed mother had to inform the father of the child about her petition to claim guardianship.”
Contentions of the parties:
The appellant’s vehement stance against the disclosure of the father’s identity was to avoid unnecessary controversies surrounding the child’s paternity. Moreover, the father of the child was married and disclosure would be an invasion of his privacy while also having negative repercussions on his present family. The learned counsel on behalf of the appellant submitted that Section 7 of the GW Act placed paramount importance on the aspect of the child’s welfare whereas the parents’ rights would subsume to that welfare. It was hence submitted that conferring the guardianship right to the appellant would be in the best interests of the child.
The respondents raised the contention that Section 11 of the GW was procedural and could not be overridden. The sections were held to convey the general idea that a guardian could not be appointed during the lifetime of the father and thus the High Court was justified in its verdict.
Provisions of the Guardians and Wards Act, 1890:
Being a follower of Christianity, the appellant's claim would be governed under the GW Act. Section 4(3) of the Act defines a Guardian as one who has the care of a person or property or both of a minor. Section 7 empowers Courts to appoint a guardian for a person/property or accordingly declare a person to be a guardian of a minor.
Section 11 lays down the procedure to be followed upon an application for guardianship which involves the communication of the proceedings to the parents of the minor. The emphasis on the welfare of the minor has been materialized under Section 17 of the Act as it provides that a Court shall be guided by circumstances that will be in the best interests of the minor. Section 17(2) lists out the factors to be taken into consideration with one of them being the capacity of the guardian and his nearness to the minor.
Judgement:
The Supreme Court was requested to not disclose the name or identity of the appellant and the child in this matter which it agreed to. The learned judges commenced by stating that the question involved the interests of 3 parties – the father, the mother, and the child. However, more weightage would be supplied only to the interests of the child as the parents’ rights were merely secondary. Emphasis was placed on the fact that the Court would exercise the doctrine of Parens Patriae in this regard as it would have to decide in the bests interests of the child, whose future would be affected.
The learned Judges referred to Sections 7 & 11 of the GW Act in addition to Section 19 which gave precedence to the mother. Section 19(b) excludes a father from being the guardian of a minor’s property if he is unfit to be so in the opinion of the Court. It is pertinent to note that the GW Act had differentiated between the terms “parents” and “father” and the court held that using them interchangeably would be incorrect.
Before considering the interpretation to be attributed to the GW Act, the Court considered the application employed by other legislation and legal systems.
- Legislations concerning Guardianship
Section 6(b) of the Hindu Minority & Guardianship Act, 1956 states that the natural guardian in case of an illegitimate minor would be the mother first and after her, the father. Principles of Mohammedan law give custody of an illegitimate child to the child’s mother and her relatives. The Indian Succession Act applies to Christians domiciled in India of which Section 8 provides that the domicile of origin for an illegitimate child would be based on that of his mother. These provisions showed that priority and preference would be with the woman who gave birth to the child irrespective of the lawfulness of her relationship to the child’s father.
In the United Kingdom, Section 2(2) of the UK Children Act, 1989 gives precedence to the mother in case of an illegitimate child whereas the father’s right to custody has to be obtained in accordance with the Act. Different states in the USA have different child custody laws but the common notion was to grant full custody to the mother of the child. Similar provisions prevail under the Guardianship of Infants Act, 1964 in Ireland, the Family Code of Philippines, and the South African Children’s Act of 2005.
- Division Bench’s view
The Court recognized that unlike Hindu women who were natural guardians of illegitimate children, Christian unwed women were at a disadvantage. It was held that the mother would be best-suited to ensure the best interests of her child given that she was the sole caregiver. A father who had forsaken his duties towards the child would not be an essential element for the best interests of the child.
In light of the secular nature of our country, the court deemed it apposite to separate the thread of religion from that of the laws to further a system of interpretation that would not be based on the tenets of Christianity but rather the intention of the legislature. The appellant had stated in her affidavit that she would accept an alteration or even revocation of her guardianship status if the father objected to the same. In addition to the affidavit, the appellant had published the said notice in discreet terms in a newspaper thus fulfilling the rule of sending a notice.
Reliance was placed on the precedent set by the Apex Court in Laxmi Kant Pandey v. Union of India 1985, (Supp) SCC 701, that emphasized on the welfare of the child. In the present scenario, the judges were of the view that non-disclosure of the child’s father would be beneficial to him in the sense that it would save him from stigma and controversy.
The Supreme Court in Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228, had adopted an interpretation whereby the word “after” in Section 6(a) of the Hindu Minority and Guardianship Act would connote “in the absence of” the father. The underlying principle for the reasoning was to ensure the welfare of the child.
It was held that the procedure under Section 11 would not have applicability in this matter as the said section would generally apply for cases where a 3rd party sought to adopt the child. In this matter, the father was uninvolved whereas the child’s guardianship was being sought by the person caring for him. The Court thus decided that a relaxation of the procedure under Section 11 to meet legislative intent would not cause any harm. Hence, the word “parents” under the GW Act for an illegitimate child would refer to the caregiver and essentially include even a single parent.
- The child’s right to know the father’s identity
The Court then considered the child’s right to know the identity of his father as laid down under various provisions of the Convention on the Rights of the Child to which India is a party since 1992. Article 7 includes the child’s right to know and receive care and attention from his/her parents. Article 9(3) lists that States have to respect a child’s right with both his/her parents and maintain regular contact.
The concept of “Best interests” of the child permeates throughout the provisions of the convention. To ensure that the child’s right to know the identity of his father was secured, the court interviewed the appellant, noted details, and placed it in a sealed envelope that could be read-only upon a direction by the court.
- The aspect of Birth certificate:
The Division Bench also expressed its concerns over the fact that the appellant had not obtained a birth certificate for her child yet and had not made any application in that regard. While holding that it was not necessary to disclose the name of the father while applying for admission or a passport, a Birth certificate would nevertheless be indispensable. It was added that if a single parent/ an unwed mother sought a birth certificate for her child, courts must seek only for an affidavit unless there is a court direction to the contrary. Holding that it was the responsibility of the state to ensure that no child should suffer for his/her parent not filing for a birth certificate, the effect of this decision in that regard would have an expansive scope and not be restricted to this case.
Decision:
The Division Bench of the Supreme Court thus upheld the appeal as it exercised its parens patriae function to ensure that guardianship would vest with the mother in the best interests of the child. There would be no necessity to state the name of the child's father for the purpose of admission or a passport. The Court finally ordered the Guardian Court to take back its decision and decide on the matter expeditiously without asking for the father’s details.
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