ABC v.

The State (NCT of Delhi)

AIR 2015 SC 2569

JUDGES: Vikramajit Sen and Abhay Manohar Sapre

Date of Decision: 06-07-2015

FACTS: –

This appeal by special leave has arisen from the judgment of the High Court of Delhi
which 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.
The Appellant is well-educated, gainfully employed and financially secure, gave birth to
a child in 2010. 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 before the Guardian Court for declaring her the sole guardian of her
son but the same was rejected. Hence the appeal lies.

ISSUE: –

Whether an unwed mother can claim herself to be the sole guardian of the child
without notifying father of the child?

JUDGMENT: –

The Hon’ble Supreme Court has concluded that an unwed mother can become the sole
guardian of the child without disclosing the name of the child’s father. Also she would
have all the rights against the child as a guardian under guardianship rights. She need
not have to take the father’s consent for guardianship rights. This was done not only to
protect the child from the social stigma but also to protect the fundamental right of
privacy of the mother. The Court observed that the mother is best suited for care and
protection of the child so aptly and comprehensively conveyed in Hindi by the
word ‘mamta’. In today’s society, where the mother is showing concern over raising
their children alone, there is no purpose to impose an unwilling and unconcerned father
on an otherwise viable family nucleus. It seems that the person who has forsaken his
duties and responsibilities would not be considered a viable constituent for the well-
being of the children. The Court put emphasis on Section 6(b) of the Hindu Minority and
Guardianship Act, 1956 which makes a specific provision in relation to natural guardians
of illegitimate children, and in this regard gives primacy to the mother over the father.
Mohammedan Law too accords the custody of illegitimate children to the mother and
her relations. The name of the father is always a myth while it is the mother’s name
which the person is sure of because she gave birth to that child.

The Court further observed that in a case where one of the parents petitions the Court
for appointment as guardian of her child, the provisions of Section 11 would not be
directly applicable. It seems that Section 11 will apply in those cases where
guardianship of the child is sought by the 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 to protect the interest of
the child born out wedlock and raised solely by the mother. Section 11 is purely
procedural and the requirements can be relaxed in order to achieve the objects of the
statute i.e., interest of the child. The Court has recognized 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,
but keeping in mind his lack of involvement in his child’s life, the Court held that there
is no reason to prioritize his rights over the rights of the mother as far as the welfare of
the child is concerned.

It was also stated that 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. The Court directs that if a single parent/unwed
mother apply for the issuance of Birth Certificate of the child, 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. It is the duty of the
State to record every birth of every citizen of the country.

HELD: –

The Court has held that an unwed mother in India can apply to become the sole
guardian of a child, without giving notice to the father of the child and without
disclosing his identity. She can apply for her child’s guardianship without giving notice
under Section 11 of the 1890 Act, to the putative father of her child.