Unwed mother can be child’s guardian without father’s consent: Supreme Court

Mangalore Today News Network

New Delhi, July 06, 2015: In a landmark judgment, the Supreme Court on Monday ruled that an unwed mother can be appointed as the sole legal guardian of her child without the consent of the father.

 

The court further held that it was not required of the mother to disclose the identity of the father and include him as a party to the guardianship petition in certain cases.

A bench led by Justice Vikramjit Sen noted that the best interest of the child required to do away with the procedural requirement of issuing a notice to the father when a guardianship petition is moved.

The bench was adjudicating a plea by a woman who challenged the statutory necessity of involving the father of her child in a guardianship petition even though she never married him.

According to her petition, the father does not even know that the child exists.

The Guardians and Wards Act and the Hindu Minority and Guardianship Act require that a notice be sent to the child’s father to obtain his consent when a plea for guardianship is moved.

In this case, the woman has questioned this need, saying any disclosure would create more problems for both parents. She has also asserted her right not to disclose the parentage, arguing that the father had nothing to do with the upbringing of the child.

The woman has pointed out that if identifying the father is not mandatory on a passport application form, this can be allowed in a guardianship case, too, under “exceptional circumstances”.

With a trial court in Delhi and the High Court ruling against the woman, she filed an appeal in Supreme Court in 2011.

While deciding her appeal, the bench said the High Court should not have summarily dismissed her plea and various peculiar facts in this case had to be taken into account.

The bench quashed the orders by the trial court and the High Court. It sent the matter to the trial court for hearing it afresh without issuing a notice to the father.

In 2014, the court had appointed senior advocate Sidharth Luthra to assist it.

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.

Citing 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.

About the woman’s right not to reveal the parentage ofthe child, Luthra said: “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.”

According to, Luthra, the best interests of the child would require knowledge of the father and a response from him when the mother seeks her appointment as the sole legal guardian.

He also differentiated between a case in which a child has been abandoned and this one, where the father does not even know about the child.

 

Courtesy: IndianExpress