Unwed mothers are legal guardians: SC

In a landmark verdict on Monday, the Supreme Court (SC) held that a single mother can legally become her child’s guardian without taking the consent of the father. The stigma of being “illegitimate” will also no longer come in the way of children born outside of wedlock while obtaining a birth certificate. At present, 

a child born out of wedlock needs to disclose the names of both the parents to acquire a birth certificate.

The SC decided the case on the petition of an unwed mother who challenged a provision in the Guardians and Wards Act, 1890 requiring her to disclose details of the child’s father and seek his consent for guardianship even though he was not involved in the child’s upbringing.  Her failure to do so had led a lower court and Delhi High Court to dismiss her guardianship application.

Reversing the two decisions, the Bench of Justices Vikramajit Sen and Abhay Manohar Sapre paved the way for significant legal reforms by interpreting the word “parent” in Section 11 of the Act to mean “sole caregiver” in case of illegitimate children. 

“It seems to us a man who has chosen to forsake his duties and responsibilities is not a necessary constituent for the wellbeing of the child,” said Justice Sen authoring the judgementStating how the Act intends to secure the best interest of the child, the court held, “We recognize that the father’s right to be involved in his child’s life may be taken away if Section 11 is read in such a manner that he is not given notice, but given his lack of involvement in the child’s life, we find no reason to prioritize his rights over those of the mother or her child.”

The SC made it clear that its judgement should not be “misunderstood” as a seal of approval for attempts by any one of the spouses in wedlock to unilaterally seek custody of the child behind the back of the other spouse. The judgement was specific to the facts in the present case where the father was uninvolved and unconcerned about the child’s existence and was being solely raised by his mother. To allay concerns of amicus curiae senior lawyer Sidharth luthra on the judgement being misused, the court enabled the “uninvolved parent” to approach the Guardian Court and seek quashing of the order if obtained stealthily.

On noting that the child, aged five, had no birth certificate failing the inability of his mother to disclose the father’s name, the Bench passed an equally significant decision directing Centre and State Governments to henceforth issue the document with the single parent/unwed mother’s name on furnishing an affidavit that the child is born of her womb. “It is the responsibility of the State to ensure that no citizen suffers any inconvenience or disadvantage merely because the parents fail or neglect to register the birth.”

Alive to the present day reality where women are increasingly choosing to raise children on their own, the Bench saw no purpose to impose on such a family an “unwilling and unconcerned father” noting that this change is gradually being seen in recent initiatives to make the father’s name optional while filling forms for school admissions and passport for minors.

Ends