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International Family Law

The leading authority on international family law

18 SEP 2015

India - Recognition of single parent as legal guardian

India - Recognition of single parent as legal guardian
The verdict of the Supreme Court on 6 July 2015 in ABC v The State, holding that a single unwed mother has a right to maintain a petition to claim sole and exclusive guardianship of a child born outside of wedlock, is a path-breaking view shattering the shackles of traditional and conventional societal set-ups in a realm of statutory personal laws where a Uniform Civil Code still remains a Constitutional aspiration. The Apex Court set aside the judgments of the Guardian Judge and the high Court which had summarily rejected the claim of the mother who had refused to disclose the identity of the father which had obviated issuance of notice to the natural father. The Supreme Court, whilst setting aside the in limine dismissal by the Guardian Judge, upheld the maintainability of the single mother's application for guardianship and remanded it to the Guardian Court for consideration of and deciding the matter on merits expeditiously without requiring notice to be given to the father of the child. The Apex Court in doing so has observed that:

'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.'

The salutory Apex Court judgment which protects the identities of all the parties also culls out a new dimension of matrimonial jurisprudence in recognising the mother's fundamental right of privacy which may have been violated if she was compelled to disclose the name and particulars of the father of the child. Besides holding that there is no indication that the welfare of the child would be undermined in non-disclosure of the identity of the father or that court notice is mandatory in the child's interest, it is also observed that non-issuance of notice to the father 'may well protect the child from social stigma and endless controversy'. However, very aptly, the Apex Court has a note of caution for the verdict being relief upon in other inter-parental child custody disputes by stating that:

'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 the other spouse.'

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Espousing the implementation of a uniform civil code, which the Apex Court laments as 'this remains an unaddressed constitutional expectation', the erudite verdict drawing support from India acceding to the Convention on the Rights of the Child overcomes barriers of religion to accord relief to unwed Christian mothers in India by granting the benefit of seeking guardianship 'of their illegitimate children by virtue of their maternity alone, without the requirement of any notice to the putative fathers.' Clearly, a new family law jurisprudence emerges.

Still further, the Apex Court gives a new beneficial interpretation to the term 'parent' in the Guardian and Wards Act 1890 ('GWA') by interpreting it to mean, 'in the case of illegitimate children whose sole care giver is one of his/her parents, to principally mean that parent alone'. Likewise, the requirement of appointment of a guardian under the GWA for a minor whose father is living, the milestone verdict rules that, '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'. Finding that the sole factum before the Court is the welfare of the minor child, the benefit further reaches out to issuance of birth certificates as well, by issuing directions, 'intendedly not restricted to the circumstances or the parties before us'. This is stated in the judgment by holding that, 'accordingly, we direct that if a single parent/unwed mother applied 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'. This general directive will serve as a mandatory practice direction for administrative authorities, Family Courts and Guardian Judges all over the country who are faced with the peculiar dilemma of having similar guardianship applications before them and could not have adjudicated such petitions of single parents.

The above directions, laudable as they are, may pose a dilemma in cases where the children are conceived and/or born from in-vitro fertilisation (IVF) and surrogacy arrangements to couples or single/gay parents, where the legal identity of the mother is presently not governed by any statutory legislation. Necessarily, the child born to the womb of a surrogate mother may not quality her to the benefit of a birth certificate and may cause conflicting problems with natural parents particularly when the commissioning mother has relied on an egg donor. Such a predicament may only necessitate Parliament to legislate a law on surrogacy as misconceived reliance on the judgment may create litigative rights for seeking undue benefits for extraneous considerations in such cases. Regardless, the verdict is a fresh breath espousing rights of parenthood upon single parents and unwed mothers caught up in a conventional time wrap wherein the Apex Court has held that, 'the law is dynamic and is expected to diligently keep pace with time and the legal conundrums and enigmas it presents'. The yeoman spirit of the Apex Court to give effective relief a plethora of conventional personal laws reflects the vibrant stature of the Indian judiciary reaching out in adjudicating family disputes.