Article Submitted by
3rd Year Student at Jindal Global Law School
- Dehradun, Uttaranchal, India
“The law is dynamic and
is expected to diligently keep pace with time and the legal conundrums and
enigmas it presents”
The idea of equality
prevails over every legal jurisprudence. Therefore, in today’s time, it has become
an important matter to discuss the rights of the unmarried mother over her
children.
Generally, the courts
give custody of a small child to the mother, and older boys and girls to the
father and mother respectively. For older children, the courts also take into
consideration the wishes of the children. However, none of this is set in stone
and if the opposite party can prove that the parent is unfit to be the legal
physical guardian of the child, then the courts will rule accordingly.
Unmarried Women and
Adoption:
In a precedent, the apex
court has given the right of guardianship of the child to a divorced mother.
The matter gets complicated when a single woman desires to adopt a child. an
unmarried Hindu mother possesses all the rights to adopt a child if she fulfils
all the required criteria’s (of sound mind, not a minor, etc) for a valid
adoption Hindu Adoption and Maintenance Act 1956.
Rights of an Unmarried
Mother over her Adopted Child:
- An
adopted child shall be deemed to be the child of her adoptive mother
Rights of a Surrogate
mother:
- A
surrogate mother has no legal rights over her child.
CASES:
In 2011 an appeal by an
unmarried woman was rejected by the Delhi high court regarding having the
guardianship of his son. The woman desired to make her son the nominee in all
her savings and insurance policies but was told that she must either get a
guardianship certificate from the Court or declare the name of her father. An
application was filed by her under Section 7 of the
Guardians and Wards Act, 1890 to declare her as the
sole guardian of her son but the provision in section 11 requires a notice to
be sent to the parents of the child and needs the biological father’s consent
before a guardian is appointed. If the father is alive and fit, Section 19 of the
Guardians and Wards Act prevents a mother to be the sole
guardian.
The woman then appealed
to the supreme court having the thought that the identity of the father should
not be a mandatory thing when applying for the sole guardianship just like his
identity is irrelevant in a passport application form.
In the case of ABC Vs, The State (NCT of
Delhi) the father had chosen to forsake his duties and
responsibilities regarding the child. The main focus was on the welfare of the
child and the mother is best suited to care for her offspring according to a
predominant legal thought across the world and in some statutes in India”.
In the case Githa Hariharan v.
Reserve Bank of India it was clarified that, in the context of Section 6 of the Hindu
Minority and Guardianship Act as well as Section 19 of the Guardians and
Wards Act, “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 judges of the case
pointed out, took into consideration and discussed the following-
1)
India is a secular nation and
religion must be distanced from law:
When it comes to
custodial matters in India (live in relationships or unmarried women), there is
usually a strict interpretation of the Hindu Minority and Guardianship Act
which states that an unmarried mother will have no right over her child. The Hindu
law states that the mother has no right to custody of her child (as it decided according
to who is the natural guardian of the child) in the following situations-
·
Where Minor is a Boy or an Unmarried Girl
·
Till the age of five, the natural guardian
is the mother of the child, irrespective of whether the child is a boy or a
girl.
·
After five, father is the natural guardian
of the minor and after father’s death, right is of the mother.
But, at times when the
father of the child ceases to be the guardian of the child when he shows no
interest in his welfare, a liberal approach is taken up by the court and this strict
interpretation of law is ignored.
India is a secular nation
and it is a basic necessity that religion should be distanced from law.
Therefore, the main aim in cases regarding custody and guardianship should be
legislative intent and prevailing case law rather than the parties’ religion. 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. That’s when the uniform civil code comes into
play. The court in the following case said that “It would be apt for us to emphasize
that our Directive Principles envision the existence of a Uniform Civil Code,
but this remains an unaddressed constitutional expectation.”
2)
International position regarding
illegitimate child:
In
2004, the Supreme Court of the Philippines held in a case that
an illegitimate child is under the sole parental authority of the mother. Section
17 of the Care of Children Act, 2004, a law in New Zealand, states
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.
3)
Women can raise children alone in
today’s world:
Vikramjit Sen and A.M.
Sapre said that in today’s society, where more and more women are choosing to
raise their children alone, and where the unknown father has shown no interest
in the child, we see no purpose in giving him legal recognition by imposing an
unwilling father to reveal his name.
4)
Right to Privacy:
It is crucial that the
rights of the mother are given due consideration. Fundamental right of privacy pf
the mother would be violated if she is forced to disclose the name and
particulars of the father of her child. Any responsible man if concerned about
the welfare of the child would keep track of his offspring he has brought into
the world.
5)
Parent in Section 11 of
the Guardianship and Wards Act can mean a single parent:
The term “parent” is not
defined in the Act, hence in cases like these regarding illegitimate children
whose sole guardian is one of his/her parents, it primarily means a parent
alone. The parent who has no involvement is therefore not excluded from approaching
the Court to quash or modify its orders if its better for the interests of the
child.
6)
Father’s name is not needed for birth
certificate, passport and school purposes:
The identity of mother is
never in doubt. If an unwed mother applies for the issuance of a Birth
Certificate for a child born from her womb, she is only required to furnish an
affidavit to this effect to the authorities concerned, and shall issue the
Birth Certificate, unless there is a contrary direction by the court. It was
laid out in a breakthrough case that the “mother’s name alone is
sufficient in certain cases where she is a single parent in passport and that
the name of one’s biological father is not necessary in all cases”.
Child Custody Under Muslim Law
Under Muslim personal
law, the mother has the sole right(right of hizanat) to the child’s custody
unless she is unfit as a guardian. The right of hizanat can be enforced against
any person including the father.
The welfare of the
children is at the forefront of Muslim law and that’s why the right of hizanat is
not absolute and exists only if it is beneficial and in the interest of her
children.
Child Custody Under Christian Law
The Indian Divorce Act,
1869, becomes applicable for all matters pertaining to Christian children and
their guardianship as the Christian laws do not have any special mention about
child custody rights. The court however has the authority to change its past
orders if at present it’s in the
interest of the welfare of the ward.
Conclusion:
The appeal of the woman
was allowed by the Supreme court over ruling the Guardianship and Wards Act and
the decision by the High Court. The Guardian Court was directed to recall the
dismissal order passed by it and thereafter consider the application for
guardianship expeditiously without requiring notice to be given to the putative
father of the child. At the same time the decision also helps single women/men
or couples in live-in relationships to have kids. Ignoring the Laws of various
religion and just keeping in mind the welfare of the child, this was one of the
most progressive judgements by the supreme court, was welcomed by all women
right activists and was celebrated all around the country. This judgement by
the Supreme Court about single mothers
is breaking taboos since single mothers are usually systematically shamed in a
society that still goes by archaic, patriarchal notions of identity.
No comments:
Post a Comment