By Devashish Jain, University of Petroleum and Energy Studies.
Recently in a Supreme Court judgment of ABC v. The State (NCT of Delhi), the court upheld the validity of the instance where a single unwed Christian mother shall have the guardianship of her minor child even without the consent of the biological fathers for such guardianship. The matter was regarding a Christian unwed mother who applied for the guardianship of her child in the local guardian court in 2011, which in turn rejected her application, on the account of refusal of the mother to disclose the child’s father details, thereby upholding the Guardians and Wards Act. The Guardian court held that as per Section 11 of the Act, when a mother applies for guardianship, she needs the prior consent of the biological father and Section 19 of the same Act states that the mother cannot be the sole guardian if the father is alive and fit. So the court while reading the Section 19 and 11 together held, that the Christian mother cannot apply for the guardianship of her minor child.
Thereafter, the disheartened lady went to the High Court to appeal against this decision. The High Court upheld the view of the lower court and stated that they can only allow the guardianship of the minor child, after attaining the consent from the father. Consequently, the Christian woman went to the Supreme Court where the lady was served with justice in a fair manner. The Supreme Court held the view, which is best known throughout the world that, a mother is best suited to care for her child. The Court even upheld the view of the Uniform Civil Code to make the case stronger even further. The Supreme Court held that Christian unwed mothers in India are at a disadvantage, as compared to their Hindu counterpart, who are the natural guardians of their illegitimate children by virtue of their maternity alone, but the same thing doesn’t apply to the Christian mothers. Even the Directive Principle of the State Policy which constitutes Part 4 of the Constitution include the article on the Uniform Civil Code. Though they are not binding but they are made with a view that they will be made applicable in near future, thus after more than 65 years of independence, it’s a right time to execute one of many of them, in an aspect which is morally justified.
In today’s society where a mother is capable of handling her child, both financially and physically but, where the father of the child in not at all concerned about that child giving him the legal right over that child won’t reap any benefit, rather it will create more hurdles for the mother. Moreover in India, a country which constitutes a majority of the orthodox society where unwed mothers are already at a disadvantage, if the court’s decision would have prevailed it would have worsened the current situation. With this judgment holding a precedential value, it is a relief for the unwed christian mothers to claim guardianship of the minor child.
The verdict of the case was given by a two- judge bench constituting H’onble Justice Vikramajit Sen and Abhay Manohar Sapre who adjudged the situation in a fair and considerate manner, thereby holding that-
“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, in today’s society, where women are increasingly choosing to raise their children alone, we see no purpose in imposing an unwilling and unconcerned father on an otherwise viable family nucleus. It seems to us that a man who has chosen to forsake his duties and responsibilities is not a necessary constituent for the well-being of the child,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”.
Further while maintaining the balance, the Apex Court held that it will not be necessary to disclose the name of the father but in case the father raises any objection regarding the guardianship in near future the guardianship may be altered.
The Supreme Court in the latter part of the judgment held that, a birth certificate is essential and the same must be issued on the birth of the child, even though the name of the father is not an essential condition while getting the admission in the school or while obtaining the passport but it is necessary to hold the birth certificate.The Court further emphasised on the issuance of the birth certificate, even if the child is a single parent child. The state is responsible to issue an affidavit in this regard and later the birth certificate unless the same is contrary to the court’s guidelines.
All of this was done with a view that the child that is born, should not suffer from any sort of discrimination or marginalized treatment in the society. This was held in the case of Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 where the Reserve Bank of India refused to create a fixed deposit in the name of the child which was signed only by the mother, a 3 judges bench upheld the validity of the guardianship of the single mother in this case.
With this judgment, the Hon’ble Supreme Court has laid the foundation of justice in the true sense, which was deprived till date. Now every unwed mother can seek guardianship of her child for the interim period, unless the biological father of that child raises any objection regarding such guardianship. By virtue of this judgment the inequality, which was prevailing in the society wherein the Christian mothers were put to a disadvantage in comparison to their Hindu counterpart over the issue of guardianship of the minor child, has been overcome.