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SC: Unwed Mom Can Be Child’s Guardian Without Dad’s Consent

  • JWB Post
  •  July 7, 2015

An unwed mother must be recognized as the legal guardian of her child and she cannot be forced to name the father, nor does she need his consent, while deciding guardianship rights, the Supreme Court ruled on Monday in a path breaking verdict on gender equality .

A bench of Justices Vikramajit Sen and Abhay Manohar Sapre said it was necessary to protect the child from social stigma. But it was equally important to protect the unmarried mother’s fundamental right by not forcing her to disclose the name and particulars of her child’s father.

The bench said the father’s consent was unnecessary as it would mean giving legal recognition to the man who had left the mother and showed no concern for his offspring’s welfare. The order, however, wouldn’t affect the child’s right to know the father’s identity , the apex court said.

“It is abundantly clear that the predominant legal thought in different civil and common law jurisdictions spanning the globe as well as in different statutes within India is to bestow guardianship and related rights to the mother of a child born outside of wedlock. Avowedly , the mother is best suited to care for her offspring, so aptly and comprehensively conveyed in Hindi by the word `mamta’,“ the bench said, taking note of laws of other countries on protecting unwed mothers’ rights.

The order came on a plea by a Christian woman, who had challenged orders passed by a trial court and the Delhi HC. Both had directed her to reveal the name of her child’s father when she sought guardianship of the child to make him nominee to her property . The child, born in 2010, was raised by the woman without any assistance from his biological father.

During the hearing, the judges interacted with the woman in the chamber. She had disclosed the name of her child’s father and other details to them. She told the bench the man was already married and had shown no concern for her child.

“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 ,“ the bench said, recognizing the delicate position of the woman. “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 wellbeing of the child,“ it said.

It said the welfare of a minor child should be the sole consideration in deciding such issues, regardless of the rights of the parents.

This article was first published in Times Of India.

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