Unwed Mothers Can Now Become Sole Guardians!

It's a big moment for women's rights.

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The Supreme Court had passed a landmark Judgment in July 2015, favouring an unwed mother who applied for guardianship of her son without sending a mandatory notice to the biological father (who had no ties after the child's birth). The Hon'ble Judges of the Supreme Court, by way of the above Judgment, overturned a Delhi High Court order, which held that the guardianship couldn't be granted without making the father a party.

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To those of you who aren't aware of this Judgment, the facts were that the unwed mother, who was educated and financially independent, had raised her son without any assistance of his father. In order to make her son, her nominee in all her savings and other insurance policies, she had filed an application with the local authority for guardianship. However, she was informed that she must either declare the name of the father and get his consent or get a guardianship certificate from the Court. Thereafter, she filed an application under Section 7 of the Guardians and Wards Act, 1890, before the Guardian Court for declaring her the sole guardian. Since, Section 11 of the Act requires a notice to be sent to both the parents, and since she had not revealed the name of the father, the Guardian Court had dismissed her guardianship application.

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Subsequently, she appealed the order of the Guardian Court before the Delhi High Court in August 2011. The Delhi High Court dismissed the appeal affirming order of the Guardian Court holding that the father could have an interest in the welfare and custody of his child and that no case can be decided in the absence of a necessary party, in this case the father. However, when the matter was taken up before the Supreme Court, the appeal was allowed and directed the Guardian Court to recall the dismissal order and to consider the application for guardianship expeditiously without notice given to the father of the child. The Supreme Court also made a very vital observation in its Judgment holding "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 well being of the child."

Being mindful of the above, it is noteworthy to mention here that the laws in India have always supported mothers in being natural guardians of their children. Infact, Section6(b) of the Hindu Minority and Guardianship Act, 1956 gives primacy to the mothers over the father. Similarly, Mohammedan Law as well as Indian Succession Act, 1925 (which applies to Christians in India) accords the custody of illegitimate children to the mother.

In short, the Judgment has definitely brought a beacon of hope and a smile on the faces of every unwed mother in India by clarifying on the issue of their rights over their illegitimate children and acknowledging their true grit. Here's to justice being served!

The writer is an Advocate/Partner at A & Y Partners.

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