SC: Unwed Mothers Don't Need Dad's Approval for Guardianship of Child

NEW DELHI: In a historical judgement, the Supreme Court of India stated that unwed mothers don’t have to reveal the identity of the father nor do they need even their consent while applying for the guardianship of the child.

A bench of Justices Vikramjit Sen and Abhay Manohar Sapre ruled that the mother has a right to the guardianship of the offspring born out of wedlock, and observed it as a practice which has been recognised in many countries outside India, and even enshrined in various statutes inside it.

"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’s statement read.

Pointing out the needlessness of championing the right of the father to guardianship, who’s not come forward yet and hasn’t shown any concern for the child, the bench observed, “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 woman had applied in the Apex court in 2011 after having been told by a Session Court and then the High Court to reveal the identity of the father. She has since contended that her husband had lived with her for two months and then left for good. She also said the bench that he did not whether child existed.

The Supreme Court appointed former Additional Solicitor General, Sidharth Luthra to assist with the case, where he observed, ““Even though an unwed mother does have a right to not disclose the parentage of a child to the world, the said right cannot prevail over the right of a child to know about his roots and origin.” He cited N D Tiwari’s case, where the Congress leader was made to accept his son born out of wedlock post a DNA test. He argued that, for the welfare of the child the father at least needed to know of the existence of the child, unlike the present case where the father isn’t even aware that a child exists.

Laying emphasis on the primacy of the child’s welfare the bench noted, "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. "

Whereas, it finally noted the right of the father to counter-claim the decision of the guardianship to be turned in his favour, if he so desires in future. It stated, “The uninvolved parent ... 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."

Section 6 in The Hindu Minority and Guardianship Act, 1956, stipulates the natural guardianship of the mother in case of an illegitimate child. It doesn’t say whether the other parent needs to be apprised of the claim of the guardianship claims by the mother.