Monday, July 20, 2015

Unwed Mother Can Be Sole Guardian With out Consent Of Father

 Unwed mother can be sole guardian without consent of father

 Key Points in the progressive Judgement of Apex Court :

  • On the crucial issue of guardianship of child by unwed mother without consent of father,this judgement solves the problem[embarrassing]of unwed mother,who don't want to disclose the name of the father for various reasons eg.Right to privacy.
  • In this case ,an application under Section 7 of the Guardians and Wards Act, 1890 (the Act)was before the Guardian Court for declaring her the sole guardian of her son.
  • Mother refused to disclose the name of the father and his whereabouts,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.
  • Paper notification was issued to the effect,father name was not revealed.
  • 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 Court are supposed to exercise  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.
  • 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.  
  • Supreme Court held that : In this scenario, the interest of the child would be best served by immediately appointing the Appellant as the guardian.


Full Text of Hon'ble Supreme Court of India Judgement :
IN 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
J U D G M E N T
VIKRAMAJIT SEN, J.

Leave granted.

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.

 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.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.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 child 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.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, 11and 19 deserve extraction, for facility of reference. 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.”

Courtesy : Supreme Court of India website  

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