Rights of unmarried mother

Rights of unmarried mother

Author : Sandeep Rana

Abstract

This article throws lights on the case ABC vs. State (NCT)[i] of Hon’ble Supreme court, where the parens patiae jurisdiction of SC  duly exercise to secure the future of several hapless children who are born out of wedlock and thereafter abandoned by their fathers. 

The apex court upholding the interest of one such case granting sole guardianship of l hapless children- who are born out of wedlock and thereafter abandoned by their fathers.

The Apex Court upholding the interest of the one such child granting the unwed mother the sole guardianship of her child in the absence of the father and protects the rights of the unmarried mother’s fundamental right by not forcing her to disclose the name and particulars of her child’s father.

In today’s world, the background of the child indirectly plays a very crucial role in the overall development of society and the law has made necessary provisions for the Welfare and the protection of child interest.

Facts of the case

In this case, the appellant who was well educated, adhered to the Christian faith, successful, gainfully employed and economically safe and sound.

In 2010, she gave birth to a child who was raised without any assistance from his biological father. To appoint her child as a nominee in all her assets and other insurance policy, she was asked either to declare the name of the father or get a guardianship/adoption certificate from the court.

Therefore, she filed an application under section 7 (power of the courts to make an order as to guardianship) The Guardianship and wards act, 1890 and demanded the court to appoint her as the sole custodian of her son.[ii]

Section 11 of the act requires that the notice must be sent to the parents of the child before the approval of the guardianship.[iii] Subsequently, notice was published in a daily newspaper.

Nonetheless, she also filed an affidavit stating that the guardianship rights shall be altered if, at any time in the future, the father of the sun raises any objection regarding his guardianship. The Guardianship court and high court dismissed the petition on the ground of refusal of disclosure of the child’s father’s identity.[iv]

Appeal to Supreme Court

Aggrieved by the dismissal, she filed an appeal to the Supreme Court vide special leave petition. On her request, the court did not reveal her individuality and that of her child, and the case was named as the ABC vs. The state (NCT of Delhi).

The judgment of the Supreme Court

• The Supreme Court allowed the appeal and directed the Guardian Court to recall the dismissal order passed by it and subsequently confirmed the application for guardianship without necessitating notice to be specified to the putative father of the child.
• A woman can raise children in today’s world in today’s world -Women more and more desire to bring up their offspring by themselves and they are enough to raise their child alone in case of an award or abandoned by the putative father. The Supreme Court answered the question that whether the biological father of the child (putative father) deserve legal recognition. SC held that a putative father who has forsaken his duty and responsibility is not an indispensable component for the well-being of the child.
• The right to privacy of the mother -The Supreme Court recognized that the women’s fundamental right to privacy must be protected and must not be forced to make known the identity of the father of her child against her will.
• Child’s right to know the identity of his parents –The Supreme Court also acknowledged that the right of a child to know the identity of his parents while referring to the Universal Declaration of Human Rights to which India is a party the court also obtained the name and available particular of the father in a duly sealed envelope.
• Father’s name not needed for the birth certificate, passport, and school services –The Supreme Court has also given direction that a single/unwed mother can apply for a birth certificate of a child to whom she gave birth by furnishing simply a legal document to that effect. She cannot be forced to reveal the identity of the father of the child against her wish.
• Mother is the primary garden of a child –The Supreme Court upholds the parental and custodian rights of a mother over a child born out of wedlock. The Hindu Minority and Guardianship Act, 1956 also give the primacy to the mother as a natural guardian of a legitimate child. The Christian law of the country also believed that in this situation, the mother is the suitable and primary parent to take care of the child.
• Other personal laws were discussed-

Section 6(b) of The Hindu Minority and Guardianship Act, 1956 makes provisions with respect to the natural guardian of the illegitimate children and give dominance to the mother in excess of the father.[v]

 Mohammedan law concurrence the custody of the illegitimate children to the mother and her family relations. The rule goes behind the principle that maternity of the child is established with the woman who gave birth to the child irrespective of the correctness of her association with the father.

 Section 8 of the Hindu Succession Act, 1925 who applies to Christian in India, that the domicile and residence of the derivation of an illegitimate child are in the country in which at the time of his birth, his mother is domiciled or resides.[vi]

Conclusion

With this discussion, the Hon’ble Supreme Court has allowed an unmarried mother to apply for guardianship of her child without giving notice to the putative father who renounced his responsibilities, duties, and ties with the child, after its birth. Now any unwed mother can possess the guardianship rights and claim her child custody for the interim duration unless that child’s putative father poses any objections. This judgment has overcome inequality in the society and recognized the individuality of the mother independent of the father. 

[i] ABC V. State (NCT of Delhi), AIR 2015 SC 2569

[ii] Section 7 of the Guardians and Wards Act, 1890

[iii] Section 11  of  the  Guardians  and  Wards Act, 1890

[iv] Code of Civil Procedure, 1882

[v] Section 6(b) of the  Hindu  Minority  and Guardianship Act, 1956

[vi] Section 8 of the  Indian  Succession  Act, 1925