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Unwed Mother Can be Child's Legal Guardian
Jul 09, 2015

In a landmark judgment, the Supreme Court ruled that an unwed mother can be appointed as the sole legal guardian of her child without the consent of the father.

  • The court 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 headed 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 Christian woman, who challenged the statutory necessity of involving the father of her five-year-old son in a guardianship petition even though she never married him—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.

  • The bench held that the procedural necessity of involving the father in a guardianship petition has to be dispensed with in the best interests of a child, for whom the mother has been the only caregiver.

  • The bench added that when the father has not exhibited any concern for his child, giving him legal recognition would be an exercise in futility—his views were not essential to protect the interests of a child that is born out of wedlock and being raised solely by the mother.

  • The bench asserted that the welfare of a child takes priority above all else, including the rights of the parents. 

  • It discussed the law on guardianship in countries like the UK, the USA, New Zealand, Philippines and South Africa, and noted that it is the unwed mother who possesses primary custodial and guardianship rights of her children there.

  • The bench gave a liberal interpretation to Section 11 of the Guardians and Wards Act, ruling that in the case of illegitimate children whose sole caregiver is one of his or her parents, the term parent would mean principally mean that parent alone.

  • In this case, the petitioner had applied for guardianship as she wanted to make her son her nominee in all her savings and other insurance policies, and also to protect the child’s inheritance and property rights.

  • The bench also decided not to be swayed by the tenets of Christian law, and said: “India is a secular nation and it is a cardinal necessity that religion be distanced from law. Therefore, the task before us is to interpret the law of the land, not in light of the tenets of the parties’ religion but in keeping with legislative intent and prevailing case law.”

  • It further noted that unwed Christian mothers in India are disadvantaged when compared to their Hindu counterparts who are the natural guardians of their illegitimate children by virtue of their maternity alone.

 


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