In a progressive judgment, Supreme Court has allowed an unmarried mother to apply for guardianship of her child without sending a mandatory notice to the father who did not have any ties with the child after its birth. Court has also directed that name of the father may not be made public and may also not be necessary for obtaining child’s birth certificate, passport and for school purposes.
Holding that “the law is dynamic and is expected to diligently keep pace with time and the legal conundrums and enigmas it presents”, SC bench comprising of Justices Vikramjit Sen and Abhay Manohar Sapre overturned a Delhi High Court order which had dismissed the Appeal there without going into the merits and holding that guardinaship cannot be granted without making the natural father a party in the case and serving him.
REPORTABLEIN THE SUPRME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. …….. OF 2015
[Arising out of SLP (Civil) No. 28367 of 2011]
ABC … Appellant
Versus
The State (NCT of Delhi) … Respondent
Dated;July 06, 2015.
VIKRAMAJIT SEN, J.
Citation; AIR 2015 SC2569
1. A legal nodus of seminal significance and of prosaic procedural
origination presents itself before us. The conundrum is whether it is imperative
for an unwed mother to specifically notify the putative father of the child whom
she has given birth to of her petition for appointment as the guardian of her
child. The common perception would be that three competing legal interests
would arise, namely, of the mother and the father and the child. We think that it
is only the last one which is conclusive, since the parents in actuality have only
legal obligations. A child, as has been ubiquitously articulated in different legal
forums, is not a chattel or a ball to be shuttled or shunted from one parent to the
other. The Court exercises paren patrae jurisdiction in custody or guardianship
wrangles; it steps in to secure the welfare of the hapless child of two adults
whose personal differences and animosity has taken precedence over the future
of their child.
2. Leave granted. This Appeal is directed against the Judgment dated
8.8.2011 delivered by the High Court of Delhi, which has dismissed the First
Appeal of the Appellant, who is an unwed mother, holding that her guardianship
application cannot be entertained unless she discloses the name and address of
the father of her child, thereby enabling the Court to issue process to him. As
per the Appellant’s request, her identity and personal details as well as those of
her son have not been revealed herein.
3. The Appellant, who adheres to the Christian faith, is well educated,
gainfully employed and financially secure. She gave birth to her son in 2010,
and has subsequently raised him without any assistance from or involvement of
his putative father. Desirous of making her son her nominee in all her savings
and other insurance policies, she took steps in this direction, but was informed
that she must either declare the name of the father or get a
guardianship/adoption certificate from the Court. She thereupon filed an
application under Section 7 of the Guardians and Wards Act, 1890 (the Act)
before the Guardian Court for declaring her the sole guardian of her son.
Section 11 of the Act requires a notice to be sent to the parents of the child
before a guardian is appointed. The Appellant has published a notice of the
petition in a daily newspaper, namely Vir Arjun, Delhi Edition but is strongly
averse to naming the father. She has filed an affidavit stating that if at any time
in the future the father of her son raises any objections regarding his
guardianship, the same may be revoked or altered as the situation may require.
However, the Guardian Court directed her to reveal the name and whereabouts
of the father and consequent to her refusal to do so, dismissed her guardianship
application on 19.4.2011. The Appellant’s appeal before the High Court was
dismissed in limine, on the reasoning that her allegation that she is a single
mother could only be decided after notice is issued to the father; that a natural
father could have an interest in the welfare and custody of his child even if there
is no marriage; and that no case can be decided in the absence of a necessary
party.
4. Ms. Indu Malhotra, learned Senior Counsel for the Appellant, has
vehemently argued before us that the Appellant does not want the future of her
child to be marred by any controversy regarding his paternity, which would
indubitably result should the father refuse to acknowledge the child as his own.
This is a brooding reality as the father is already married and any publicity as to
a declaration of his fathering a child out of wedlock would have pernicious
repercussions to his present family. There would be severe social complications
for her and her child. As per Section 7 of the Act, the interest of the minor is the
only relevant factor for appointing of a guardian, and the rights of the mother
and father are subservient thereto. In this scenario, the interest of the child4
would be best served by immediately appointing the Appellant as the guardian.
Furthermore, it is also pressed to the fore that her own fundamental right to
privacy will be violated if she is compelled to disclose the name and particulars
of the father of her child. Ms. Malhotra has painstakingly argued this Appeal,
fully cognizant that the question that arises is of far reaching dimensions. It is
this very feature that convinced us of the expediency of appointing amicus
curiae, and Mr. Sidharth Luthra has discharged these onerous duties zealously,
for which we must immediately record our indebtedness.
5. It would be pertinent to succinctly consider the Guardians and Wards Act,
1890. The Act, which applies to Christians in India, lays down the procedure by
which guardians are to be appointed by the Jurisdictional Court. Sections 7, 11
and 19 deserve extraction, for facility of reference.
“7. Power of the court to make order as to guardianship
(1) Where the court is satisfied that it is for the welfare of a minor
that an order should be made-
(a) appointing a guardian of his person or property, or both,
or
(b) declaring a person to be such a guardian,
the court may make an order accordingly.
(2) An order under this section shall imply the removal of any
guardian who has not been appointed by will or other instrument or
appointed or declared by the court.
(3) Where a guardian has been appointed by will or other instrument
or appointed or declared by the court, an order under this section
appointing or declaring another person to be guardian in his stead
shall not be made until the powers of the guardian appointed or
declared as aforesaid have ceased under the provisions of this Act.”5
The details of the form of application are contained in Section 10 and the
procedure that applies to a guardianship application is prescribed in Section 11.
11. Procedure on admission of application
(1) If the Court is satisfied that there is ground for proceeding on the
application, it shall fix a day for the hearing thereof, and cause
notice of the application and of the date fixed for the hearing-
(a) to be served in the manner directed in the Code of Civil
Procedure,1882(14 of 1882)11 on-
(i) the parents of the minor if they are residing in
any State to which this Act extends;
(ii) the person, if any, named in the petition or letter as
having the custody or possession of the person or
property of the minor;
(iii) the person proposed in the application or letter to
be appointed or declared guardian, unless that person is
himself the applicant; and
(iv) any other person to whom, in the opinion of the
court special notice of the applicant should be given;
and
(b) to be posted on some conspicuous part of the court-house
and of the residence of the minor, and otherwise published in
such manner as the court, subject to any rules made by the
High Court under this Act, thinks fit.
(2) The State Government may, by general or special order, require
that when any part of the property described in a petition under
section 10, sub-section (1), is land of which a Court of Wards could
assume the superintendence, the court shall also cause a notice as
aforesaid to be served on the Collector in whose district the minor
ordinarily resides and on every Collector in whose district any
portion of the land is situate, and the Collector may cause the notice
to be published in any manner he deems fit.
(3) No charge shall be made by the court or the Collector for the
service or publication of any notice served or published under
sub-section (2).
Section 19 is of significance, even though the infant son does not independently
own or possess any property, in that it specifically alludes to the father of a
minor. It reads thus: 6
19. Guardian not to be appointed by the court in certain cases
Nothing in this Chapter shall authorise the court to appoint or
declare a guardian of the property of a minor whose property is
under the superintendence of a Court of Wards or to appoint or
declare a guardian of the person-
(a) of a minor who is a married female and whose husband is not, in
the opinion of court, unfit to be guardian of her person; or
(b) of a minor whose father is living and is not in the opinion of
the court, unfit to be guardian of the person of the minor; or
(c) of a minor whose property is under the superintendence of a
Court of Wards competent to appoint a guardian of the person of the
minor.
We must immediately underscore the difference in nomenclature, i.e. ‘parents’
in Section 11 and ‘father’ in Section 19, which we think will be perilous to
ignore.
6. It is contended on behalf of the State that Section 11 requires a notice to
be given to the ‘parents’ of a minor before a guardian is appointed; and that as
postulated by Section 19, a guardian cannot be appointed if the father of the
minor is alive and is not, in the opinion of the court, unfit to be the guardian of
the child. The impugned judgment is, therefore, in accordance with the Act and
should be upheld. It seems to us that this interpretation does not impart
comprehensive significance to Section 7, which is the quintessence of the Act.
However, before discussing the intendment and interpretation of the Act, it
would be helpful to appreciate the manner in which the same issue has been
dealt with in other statutes and spanning different legal systems across the
globe. 7
7. Section 6(b) of the Hindu Minority and Guardianship Act, 1956 makes
specific provisions with respect to natural guardians of illegitimate children, and
in this regard gives primacy to the mother over the father. Mohammedan law
accords the custody of illegitimate children to the mother and her relations. The
law follows the principle that the maternity of a child is established in the
woman who gives birth to it, irrespective of the lawfulness of her connection
with the begetter. However, paternity is inherently nebulous especially where
the child is not an offspring of marriage. Furthermore, as per Section 8 of the
Indian Succession Act, 1925, which applies to Christians in India, the domicile
of origin of an illegitimate child is in the country in which at the time of his
birth his mother is domiciled. This indicates that priority, preference and
pre-eminence is given to the mother over the father of the concerned child.
8. In the United Kingdom, the Children Act 1989 allocates parental
responsibility, which includes all rights, duties, powers, responsibilities and
authority of a parent over the child and his/her property. According to Section
2(2) of that Act, parental custody of a child born of unwed parents is with the
mother in all cases, and additionally with the father provided he has acquired
responsibility in accordance with the provisions of the Act. To acquire
responsibility, he would have to register as the child’s father, execute a parental
responsibility agreement with the mother or obtain a Court order giving him
parental responsibility over the child. In the U.S.A., each State has different8
child custody laws but predominantly the mother has full legal and physical
custody from the time the child is born. Unless an unmarried father establishes
his paternity over the child it is generally difficult for him to defeat or
overwhelm the preferential claims of the mother to the custody. However, some
States assume that both parents who sign the child’s Birth Certificate have joint
custody, regardless of whether they are married. In Ireland, Section 6(4) of the
Guardianship of Infants Act, 1964 ordains - “The mother of an illegitimate
infant shall be guardian of the infant.” Unless the mother agrees to sign
a statutory declaration, an unmarried father must apply to the Court in order to
become a legal guardian of his child. Article 176 of the Family Code of the
Philippines explicitly provides that “illegitimate children shall use the surname
and shall be under the parental authority of their mother, and shall be entitled to
support in conformity with this Code.” This position obtains regardless of
whether the father admits paternity. In 2004, the Supreme Court of the
Philippines in Joey D. Briones vs. Maricel P. Miguel et al, G.R. No. 156343,
held that an illegitimate child is under the sole parental authority of the mother.
The law in New Zealand, as laid out in Section 17 of the Care of Children Act,
2004, is that the mother of a child is the sole guardian if she is not married to, or
in civil union with, or living as a de facto partner with the father of the child at
any time during the period beginning with the conception of the child and
ending with the birth of the child. In South Africa, according to the Children’s
Act No. 38 of 2005, parental responsibility includes the responsibility and the9
right (a) to care for the child; (b) to maintain contact with the child; (c) to act as
guardian of the child; and (d) to contribute to the maintenance of the child. The
biological mother of a child, whether married or unmarried, has full parental
responsibilities and rights in respect of the child. The father has full parental
responsibility if he is married to the mother, or if he was married to her at the
time of the child’s conception, or at the time of the child’s birth or any time in
between, or if at the time of the child’s birth he was living with the mother in a
permanent life-partnership, or if he (i) consents to be identified or successfully
applies in terms of Section 26 to be identified as the child’s father or pays
damages in terms of customary law; (ii) contributes or has attempted in good
faith to contribute to the child’s upbringing for a reasonable period; and (iii)
contributes or has attempted in good faith to contribute towards expenses in
connection with the maintenance of the child for a reasonable period. This
conspectus indicates that the preponderant position that it is the unwed mother
who possesses primary custodial and guardianship rights with regard to her
children and that the father is not conferred with an equal position merely by
virtue of his having fathered the child. This analysis should assist us in a
meaningful, dynamic and enduring interpretation of the law as it exists in India.
9. It is thus 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 mother10
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’. Furthermore, recognizing her maternity would obviate the necessity
of determining paternity. In situations such this, where the father has not
exhibited any concern for his offspring, giving him legal recognition would be
an exercise in futility. 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. The Appellant has
taken care to clarify that should her son’s father evince any interest in his son,
she would not object to his participation in the litigation, or in the event of its
culmination, for the custody issue to be revisited. Although the Guardian Court
needs no such concession, the mother’s intent in insisting that the father should
not be publically notified seems to us not to be unreasonable.
10. We feel it necessary to add that the purpose of our analysis of the law in
other countries was to arrive at a holistic understanding of what a variety of
jurisdictions felt would be in the best interest of the child. It was not, as learned
Counsel suggested, to understand the tenets of Christian law. 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 the11
tenets of the parties’ religion but in keeping with legislative intent and
prevailing case law.
11. It is imperative that the rights of the mother must also be given due
consideration. As Ms. Malhotra, learned Senior Counsel for the Appellant, has
eloquently argued, the Appellant’s fundamental right of privacy would be
violated if she is forced to disclose the name and particulars of the father of her
child. Any responsible man would keep track of his offspring and be concerned
for the welfare of the child he has brought into the world; this does not appear to
be so in the present case, on a perusal of the pleading as they presently portray.
Furthermore, Christian unwed 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, without the requirement
of any notice to the putative fathers. It would be apposite for us to underscore
that our Directive Principles envision the existence of a uniform civil code, but
this remains an unaddressed constitutional expectation.
12. We recognize that the father’s right to be involved in his child’s life may
be taken away if Section 11 is read in such a manner that he is not given notice,
but given his lack of involvement in the child’s life, we find no reason to
prioritize his rights over those of the mother or her child. Additionally, given
that the Appellant has already issued notice to the public in general by way of a
publication in a National Daily and has submitted an affidavit stating that her12
guardianship rights may be revoked, altered or amended if at any point the
father of the child objects to them, the rights, nay duty of the father have been
more than adequately protected.
13. The issue at hand is the interpretation of Section 11 of the Act. As the
intention of the Act is to protect the welfare of the child, the applicability of
Section 11 would have to be read accordingly. In Laxmi Kant Pandey vs.
Union of India 1985 (Supp) SCC 701, this Court prohibited notice of
guardianship applications from being issued to the biological parents of a child
in order to prevent them from tracing the adoptive parents and the child.
Although the Guardians and Wards Act was not directly attracted in that case,
nevertheless it is important as it reiterates that the welfare of the child takes
priority above all else, including the rights of the parents. In the present case
we do not find any indication that the welfare of the child would be undermined
if the Appellant is not compelled to disclose the identity of the father, or that
Court notice is mandatory in the child’s interest. On the contrary, we find that
this may well protect the child from social stigma and needless controversy.
14. Even in the absence of Laxmi Kant Pandey, we are not like mariners in
unchartered troubled seas. The observations of a three Judge Bench of this
Court in Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 are readily
recollected. The RBI had refused to accept an application for a fixed deposit in
the name of the child signed solely by the mother. In the context of Section 6 of13
the Hindu Minority and Guardianship Act as well as Section 19 of the
Guardians and Wards Act, this Court had clarified that “in all situations where
the father is not in actual charge of the affairs of the minor either because of his
indifference or because of an agreement between him and the mother of the
minor (oral or written) and the minor is in the exclusive care and custody of the
mother or the father for any other reason is unable to take care of the minor
because of his physical and/or mental incapacity, the mother can act as natural
guardian of the minor and all her actions would be valid even during the life
time of the father who would be deemed to be “absent” for the purposes of
Section 6(a) of the HMG Act and Section 19(b) of the GW Act.” This Court has
construed the word ‘after’ in Section 6(a) of the Hindu Minority and
Guardianship Act as meaning “in the absence of – be it temporary or otherwise
or total apathy of the father towards the child or even inability of the father by
reason of ailment or otherwise.” Thus this Court interpreted the legislation
before it in a manner conducive to granting the mother, who was the only
involved parent, guardianship rights over the child.
15. In a case where one of the parents petitions the Court for appointment as
guardian of her child, we think that the provisions of Section 11 would not be
directly applicable. It seems to us that Section 11 applies to a situation where
the guardianship of a child is sought by a third party, thereby making it essential
for the welfare of the child being given in adoption to garner the views of
child’s natural parents. The views of an uninvolved father are not essential, in
our opinion, to protect the interests of a child born out of wedlock and being
raised solely by his/her mother. We may reiterate that even in the face of the
express terms of the statute, this Court had in Laxmi Kant Pandey directed that
notice should not be sent to the parents, as that was likely to jeopardize the
future and interest of the child who was being adopted. The sole factor for
consideration before us, therefore, is the welfare of the minor child, regardless
of the rights of the parents. We should not be misunderstood as having given
our imprimatur to an attempt by one of the spouses to unilaterally seek custody
of a child from the marriage behind the back of other spouse. The
apprehensions of Mr. Luthra, learned amicus curiae, are accordingly addressed.
16. Section 11 is purely procedural; we see no harm or mischief in relaxing
its requirements to attain the intendment of the Act. Given that the term
“parent” is not defined in the Act, we interpret it, in the case of illegitimate
children whose sole caregiver is one of his/her parents, to principally mean that
parent alone. Guardianship or custody orders never attain permanence or
finality and can be questioned at any time, by any person genuinely concerned
for the minor child, if the child’s welfare is in peril. The uninvolved parent is
therefore not precluded from approaching the Guardian Court to quash, vary or
modify its orders if the best interests of the child so indicate. There is thus no
mandatory and inflexible procedural requirement of notice to be served to the
putative father in connection with a guardianship or custody petition preferred
by the natural mother of the child of whom she is the sole caregiver.
17. Implicit in the notion and width of welfare of the child, as one of its
primary concomitants, is the right of the child to know the identity of his or her
parents. This right has now found unquestionable recognition in the Convention
on the Rights of the Child, which India has acceded to on 11th November, 1992.
This Convention pointedly makes mention, inter alia, to the Universal
Declaration of Human Rights. For facility of reference the salient provisions
are reproduced -
Article 1
For the purposes of the present Convention, a child means every
human being below the age of eighteen years unless under the law
applicable to the child, majority is attained earlier.
Article 3
1. In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be
a primary consideration.
2. States Parties undertake to ensure the child such protection and
care as is necessary for his or her well-being, taking into account the
rights and duties of his or her parents, legal guardians, or other
individuals legally responsible for him or her, and, to this end, shall
take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and
facilities responsible for the care or protection of children shall
conform with the standards established by competent authorities,
particularly in the areas of safety, health, in the number and
suitability of their staff, as well as competent supervision.16
Article 7
1. The child shall be registered immediately after birth and shall have
the right from birth to a name, the right to acquire a nationality and,
as far as possible, the right to know and be cared for by his or her
parents.
Article 9
1. States Parties shall ensure that a child shall not be separated from
his or her parents against their will, except when competent
authorities subject to judicial review determine, in accordance with
applicable law and procedures, that such separation is necessary for
the best interests of the child. Such determination may be necessary
in a particular case such as one involving abuse or neglect of the
child by the parents, or one where the parents are living separately
and a decision must be made as to the child's place of residence.
2. In any proceedings pursuant to paragraph 1 of the present article,
all interested parties shall be given an opportunity to participate in
the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated
from one or both parents to maintain personal relations and direct
contact with both parents on a regular basis, except if it is contrary to
the child's best interests.
Article 12
1. States Parties shall assure to the child who is capable of forming
his or her own views the right to express those views freely in all
matters affecting the child, the views of the child being given due
weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the
opportunity to be heard in any judicial and administrative
proceedings affecting the child, either directly, or through a
representative or an appropriate body, in a manner consistent with the
procedural rules of national law.
Article 18
1. States Parties shall use their best efforts to ensure recognition of
the principle that both parents have common responsibilities for the17
upbringing and development of the child. Parents or, as the case may
be, legal guardians, have the primary responsibility for the
upbringing and development of the child. The best interests of the
child will be their basic concern.
Article 21
States Parties that recognize and/or permit the system of adoption
shall ensure that the best interests of the child shall be the paramount
consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by
competent authorities who determine, in accordance with applicable
law and procedures and on the basis of all pertinent and reliable
information, that the adoption is permissible in view of the child's
status concerning parents, relatives and legal guardians and that, if
required, the persons concerned have given their informed consent to
the adoption on the basis of such counselling as may be necessary;
Article 27
2. The parent(s) or others responsible for the child have the primary
responsibility to secure, within their abilities and financial capacities,
the conditions of living necessary for the child's development.
4. States Parties shall take all appropriate measures to secure the
recovery of maintenance for the child from the parents or other
persons having financial responsibility for the child, both within the
State Party and from abroad. In particular, where the person having
financial responsibility for the child lives in a State different from
that of the child, States Parties shall promote the accession to
international agreements or the conclusion of such agreements, as
well as the making of other appropriate arrangements.
18. In Laxmi Kant Pandey, this Court duly noted the provisions of the
Convention on the Rights of the Child, but in the general context of adoption of
children and, in particular, regarding the necessity to involve the natural parents
in the consequent guardianship/custody proceedings. The provisions of the
Convention which we have extracted indeed reiterate the settled legal position18
that the welfare of the child is of paramount consideration vis a vis the
perceived rights of parents not only so far as the law in India is concerned, but
preponderantly in all jurisdictions across the globe. We are mindful of the fact
that we are presently not confronted with a custody conflict and, therefore, there
is no reason whatsoever to even contemplate the competence or otherwise of the
Appellant as custodian of the interests and welfare of her child. However, we
would be loathe to lose perspective of our parens patriae obligations, and in
that regard we need to ensure that the child’s right to know the identity of his
parents is not vitiated, undermined, compromised or jeopardised. In order to
secure and safeguard this right, we have interviewed the Appellant and
impressed upon her the need to disclose the name of the father to her son. She
has disclosed his name, along with some particulars to us; she states that she has
no further information about him. These particulars have been placed in an
envelope and duly sealed, and may be read only pursuant to a specific direction
of this Court.
19. We are greatly perturbed by the fact that the Appellant has not obtained a
Birth Certificate for her son who is nearly five years old. This is bound to
create problems for the child in the future. In this regard, the Appellant has not
sought any relief either before us or before any of the Courts below. It is a
misplaced assumption in the law as it is presently perceived that the issuance of
a Birth Certificate would be a logical corollary to the Appellant succeeding in
her guardianship petition. It may be recalled that owing to curial fiat, it is no
longer necessary to state the name of the father in applications seeking
admission of children to school, as well as for obtaining a passport for a minor
child. However, in both these cases, it may still remain necessary to furnish a
Birth Certificate. The law is dynamic and is expected to diligently keep pace
with time and the legal conundrums and enigmas it presents. There is no
gainsaying that the identity of the mother is never in doubt. Accordingly, we
direct that if a single parent/unwed mother applies for the issuance of a Birth
Certificate for a child born from her womb, the Authorities concerned may only
require her to furnish an affidavit to this effect, and must thereupon issue the
Birth Certificate, unless there is a Court direction to the contrary. Trite though
it is, yet we emphasise that it is the responsibility of the State to ensure that no
citizen suffers any inconvenience or disadvantage merely because the parents
fail or neglect to register the birth. Nay, it is the duty of the State to take
requisite steps for recording every birth of every citizen. To remove any
possible doubt, the direction pertaining to issuance of the Birth Certificate is
intendedly not restricted to the circumstances or the parties before us.
20. We think it necessary to also underscore the fact that the Guardian Court
as well as the High Court which was in seisin of the Appeal ought not to have
lost sight of the fact that they had been called upon to discharge their parens
patriae jurisdiction. Upon a guardianship petition being laid before the Court,
the concerned child ceases to be in the exclusive custody of the parents;
thereafter, until the attainment of majority, the child continues in curial
curatorship. Having received knowledge of a situation that vitally affected the
future and welfare of a child, the Courts below could be seen as having been
derelict in their duty in merely dismissing the petition without considering all
the problems, complexities and complications concerning the child brought
within its portals.
21. The Appeal is therefore allowed. The Guardian Court is directed to recall
the dismissal order passed by it and thereafter consider the Appellant’s
application for guardianship expeditiously without requiring notice to be given
to the putative father of the child.
………………………………..J.
(VIKRAMAJIT SEN)
………………………………..J.
(ABHAY MANOHAR SAPRE)
New Delhi
July 06, 2015.
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