Facts of the Case:
It’s a Special Leave, which arises from the judgment of the High Court of Delhi, where the first appeal of the appellant was dismissed.
Appellant, is an unwed mother, and she is well educated, has a proper and good stable job, and also financially capable as well as secure. She gave birth to the child in the year 2010. She wants to make her son, the Nominee in all her savings and other insurance policies also, so she undergone the directions for the same, but she was not able to fulfill her work, because she was informed that she is required to declare or mention the name of the father or else she is required to get a Guardianship / Adoption certificate from the court.
Therefore, she filed an application under Section 7 of Guardianship and Wards Act, 1890, presented before the Guardian Court, as to declare her as the ‘Sole Guardian’ of her son, but the application was rejected, as by the reason was she is required to disclose the name and address of the father of her child, which enables the court to issue process to him. And, then appeal lies.
Analysis
Guardianship Court
Appellant filed an application under Section 7 of the Guardians and Wards Act, 1890, before the Guardian Court for the purpose of declaring her the sole guardian of her son.
According to Section 11 of the Act, there is a necessary condition that needs to be complete, that is the party requires sending the notice to the parents of the child, before the guardian is to be appointed. Although, the appellant had followed the conditions, and published the notice of the petition in the daily newspaper, but did not mention the whereabouts about the father. And she also filled an affidavit which states that any time in the future, if the father of her son raises any sort of objection regarding guardianship, the same will be revoked or altered as per the situation.
Guardian Court directed her to reveal the name of the father and also provide other information about the father, but the appellant refused to disclose the same, and therefore her Guardianship Application was dismissed on 19th April 2011.
High Court
Appeal of the Appellant was also dismissed by the High Court, on the basis of the requirements to be fulfilled as per Section 11 of the Act. Appellant refused to reveal the name of the father. Therefore, the court dismissed her appeal on the reasoning that, she is required to issue notice and reveal all the information about the father, as there could be a possibility that Biological Father might have an interest in the welfare and custody of his child, and it is a well-settled provision and principle, which is there need to be the presence of Necessary Parties.
Supreme Court
The main and only reasoning, the appeal of the appellant was dismissed by Guardianship as well as High Court, because, she did not mention the whereabouts of the father of her son, and accordingly it’s a necessary and vital condition.
Appellant presented her major three reasons as to not reveal the name of the father-
- She doesn’t want to disclose her own identity, because there was a risk if he will deny the paternity, as she was already married.
- Such disclosure can have an impact on his relatives, because of his marital status
- Forcing her to reveal the name of the father, result to breach of her Fundamental Right, which is Right to Privacy
The opposite party, State of Delhi, rejected the appellant’s arguments and submissions, and contended that, as for granting the Guardianship, it is necessary to follow the provisions of Section 11 of the Act, as the notice is a mandatory requirement, as the main purpose is to inform the parents of the child
In the Supreme Court, the State of Delhi opposes to her arguments, arguing that Section 11 of the Guardians & Wards Act, 1890, includes the notice, before the guardian is appointed, of a parent for a child and Section 19 of the Act was also highlighted that, as if the father of the child is alive and is fit and proper to be appointed as a guardian, then a guardian can no longer be named.
In this case, the Hon’ble Supreme Court only focused on the welfare of the minor child. The subject of illegitimate child custody was highlighted, as in the case of Hindu as well as Muslim Law in India, granting the custody to the mother is a considerable decision as well as of paramount importance. Even Christian law also recognizes and considers that the custody of the mother is the most suitable choice for the welfare of the child.
Court has primarily focused on the preferred and best interest of the child, as whenever such type of situation arises.
The Apex Court of India, therefore, has always emphasized the fact that whenever the situation of such arises, the paramount consideration should be for the welfare of the minor with the preference to the mother gaining the absolute custody of the child of such unwed parents. In regard to preferential choice of granting the custody to mother from an unwed relation, a comparison was made with the laws of New Zealand, U.K, USA, Ireland, etc. it was observed that the mother should be granted the custody, especially in case of unwed relationship, because the biological father has not undertaken his responsibility.
It was also observed that the position of Christian Unwed Mothers are not good as in comparison to the Hindu Unwed Mothers, because they are not required to comply with any formalities of furnishing the notice requirement for the Guardianship of the child, they are considered as the Natural Guardian.
The court highlighted the features of Section 11 of the Act, is that the issuance of the notice is mandatory only for the welfare of the child. But in regard to this case, there could be interpretations of various situations, as in this the father did not oblige to his responsibility for taking care of the child, and therefore he is not entitled to receive any sort of notice or information regarding the guardianship of the child. As there was a case, where the welfare and interest of the child was prioritized, as in Laxmi Kant Pandey vs. Union of India [1], the court directly restricted the notice of guardianship application to be issued to biological parents of the child, as to prevent them from tracing the adoptive parents and the child, which showcase that welfare of the child is above all, including the rights of parents.
The court also observed that the birth certificate to be issued without any problem or issue, especially in the case of a single mother.
Therefore, Court respected the Right to Privacy of the Appellant, as in not disclosing the real identity of the father of the child, because of the reasons, and also as she has fulfilled the condition of issuing notice in the National Newspaper, and granted her the Guardianship of the child, as a mere reasoning for the welfare and best-suited interest of the child.
Recent Progress: With Regard to Single Mother’s Parenting Rights
Judgement of Delhi High Court in the year 2016, in Shalu Nigam & Anr v. The Regional Passport office & others[2], in this case, it was held that Mother Name alone will be considered as SUFFICIENT in certain scenarios, as when she is a single parent in the passport, and the name of the biological father would not be mandatory at all. A single woman can be a Natural Guardian and Parent.
In Mrs. B.S Deepa v. The Regional Passport Officer[3], the Madras High Court held that Ministry of External Affairs is required to make suitable amendments’ in the Passport Manual, as by incorporating additional columns in the passport applications as for the names of the step-parents, adoptive parents.
In the case of Rashi Yogesh Sadariya v. Director & Others[4], the Gujarat High Court held that single parent and biological natural guardian has the right to put her surname after the name of his/her child in the birth certificate, but following by mutual consent, only in case of divorce.
Conclusion
This step and decision by the Supreme Court can be stated as Iconic, because in this case, the true sense of security of justice can be felt. Where the unwed single mother was not given any proper recognition in the society, nor was granted any legal rights on her own child, but after this judgment of identifying and considering the Rights of the Unwed Mother, it has promoted equality in the society.
References:
[1] 1985 (Supp) SCC 701
[2] Shalu Nigam & Anr vs The Regional Passport Officer & others, (Writ Petition (C) 155/2016 & CM APPLs. 684-685/2016
[3] Mrs. B.S.Deepa vs The Regional Passport Officer, (Writ Petition No.29105 of 2014)
[4] Rashi Yogesh Sadariya vs Director & others, (Special Civil Application No. 12924 of 2015)
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