July,6,2015: In a progressive judgment, the Supreme Court on Monday allowed an unwed Hindu mother to apply for guardianship of her minor child without taking consent from the child's father.
A bench led by Justice Vikramjit Sen allowed the woman, who preferred anonymity and is known only by the acronym 'ABC', to approach the localguardianship court on her own accord in the status of an unwed mother without the burden of issuing prior notice to the father.
The Hindu Minority and Guardianship Act requires marriage as a necessary precedent for a parent to apply for guardianship of her child.
Under this statute, a woman requires the man's permission before applying for guardianship.
Supreme Court had appointed senior advocate Sidharth Luthra in 2014. The former Additional Solicitor General highlighted two aspects of the case — the right of a child to know about and have the affection of his father, and the father’s right to have knowledge and access to the child. Relying on the ruling in the case of Congress leader N D Tiwari, who accepted a son born out of wedlock following a DNA test, Luthra pointed out that the right of a child to know about the father has been acknowledged as a facet of the fundamental right to life.
Commenting on the right of a woman to no disclose the parentage of the child, Luthra argued,“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.”
The Court also directed that if a single parent/unwed mother applies for the issuance of a Birth Certificate for a child born from her womb, the Authorities concerned may only require her to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate, unless there is a Court direction to the contrary.
With this judgment, the Supreme Court has given its stamp of approval to a woman's status as an unwed mother of a child.
Especially as in this case, when the child does not know the identity of the father and when the mother does not want to involve him in the parenting.
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." It only when a child is born out of wedlock does the law recognise the mother as the natural guardian.
In Githa Hariharan vs Reserve Bank of India, which challenged the constitutional validity of Section 6, the Supreme Court deemed both mother and father as natural guardians of a child.
The apex court also ruled that ‘after’ cannot be given a literal interpretation, and the child's welfare has 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," the court said 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," it said.
Despite the Supreme Court judgment, several public and private institutions continue to issue forms that require the father to sign off as the guardian.
Read the Full Text of the Judgment-