The Supreme Court, in a landmark judgment, has asserted that an unwed mother can become the sole legal guardian of a child without the consent of the father in India.
The plaintiff, a government official, moved the Supreme Court in 2011 after a trial court and the Delhi High Court ruled that she needed to disclose the father’s name to get his consent while filing for a guardianship petition. The plaintiff had asked the courts for permission to apply for becoming the child’s guardian without informing the father, who, she argued, had stayed with her for two months and did not know the child exists.
Following the decision of the Supreme Court bench led by Justice Vikramajit Sen, an unwed mother is no longer required to disclose the father’s name.
Ms. Ranjana Kumari, a women’s rights activist and director of the Delhi-based Centre for Social Research think tank, described it as a “progressive stand.” Former Additional Solicitor General, Sidharth Luthra, had however argued that the father has a right to know about his child and a child has the right to experience a father’s love. “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,” Luthra told the court.
Ms. Kavita Krishnan, secretary of the All India Progressive Women’s Association, said that the Supreme Court should go one step further and rule that “every mother is the natural and legal guardian of a child.” “In how many schools, do they will still ask for the father’s name as the guardian of the child,” she said. “Why is that?”
Section 6 of the Hindu Minority and Guardianship Act, 1956, recognises the natural guardian of a minor as “the father, and after him, the mother.” In Githa Hariharan vs Reserve Bank of India, which challenged the constitutional validity of Section 6, the Supreme Court held that the word ‘after’ cannot be given a literal interpretation, and the child’s welfare took precedence in determining the guardian of a child. “The father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category and in that view of the matter the word ‘after’ shall have to be interpreted in terms of the constitutional safeguard and guarantee so as to give a proper and effective meaning to the words used,” the court had articulated in 1999.
“We do feel it expedient to record that the word ‘after’ does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as ‘in the absence of’ – be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise and it is only in the event of such a meaning being ascribed to the word ‘after’ as used in Section 6 then and in that event the same would be in accordance with the intent of the legislation,” it ruled.
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