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Bizarre notions stopped single
mothers from getting their due for too long, until the Supreme Court intervened

By Bhavdeep Kang

FATHERHOOD is a well-regarded theory, but motherhood is a fact.” Indian jurisprudence has yet to take satirist PJ O’Rourke’s formulation to heart. What should have been a woman’s natural and inalienable right—guardianship of her children—must be wrested from courts of law, inch by inch.

For a single mother to apply for a passport, open a fixed deposit or take out an insurance policy in the name of her child—acts a single father can perform without a second thought—has taken decades of struggle. Even so, film-maker and unwed-single-mother-by-choice Kavita Lankesh must secure a “no-objection certificate” from her daughter’s biological father before she can get the child’s passport renewed! One can only imagine how Neena Gupta, pioneering single mother to her daughter by Vivian Richards, managed way back in 1989.

It took another ten years for the Supreme Court to recognize, in 1999 (Githa Hariharan vs Reserve Bank of India), that a mother had as much right as a father to be the “natural guardian” of a child. Ruling on the RBI’s refusal to accept her signature on an application to open relief bonds for her minor son, the SC said the parents had equal rights.

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Justice Vikramjit Sen delivered the landmark SC judment in favor of single mothers.

Last fortnight marked a new milestone in the single mother’s quest for recognition. Justice Vikramajit Sen, generally regarded as progressive and modern in his outlook, observed: “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.” Setting aside a previous judgment of the Delhi High Court, the Supreme Court ruled that a single mother could be the sole legal guardian of her child, even without the explicit consent of the father.

The Delhi High Court had held that the mother in question, a Christian, could not be recognized as sole guardian unless the father of the child was heard; she would have to provide his name and address, so that he could be served notice.

Was it a landmark judgment? Perhaps not. It did not go beyond the immediate prayer for recognition of an unwed mother’s right to sole guardianship of a minor, where she is demonstrably able to care for him and the father, being married, plays no role in the child’s life. The ruling makes it clear that if the absent biological father suddenly surfaces and challenges guardianship, he can do so. But it did recongize that in most legal systems, “priority, preference and pre-eminence is given to the mother over the father of the concerned child”.

githa-hariharan-photo2 jjjpjiojh
Author Githa Hariharan faced RBI’s refusal to accept her signature on an application to open relief bonds for her minor son; the SC then ruled that both parents had equal rights.

Despite Githa Hariharan, horrors are still visited on single mothers. Lankesh recalls the ordeal of getting her daughter’s passport renewed. Standing in line, she was grilled by passport officials on her marital status or lack thereof. “They could not understand that I wasn’t divorced or abandoned and that my child was not adopted. I simply didn’t want to be married to the father of my child,” she says.
Bizarrely, the Bombay High Court was informed last year by a government counsel that an unwed mother who wants a passport for her child must state whether or not it was conceived as a result of sexual assault! Clause 3.2(a) of the passport manual put out by the Ministry of External Affairs stated that an unwed mother was required to file an affidavit stating how she conceived and why she does not want the father’s name on the passport. Was it desertion, divorce or rape?

The case related to a woman’s prayer regarding the passport authority’s refusal to include her step-father or her mother’s name in her passport—despite the fact that the mother had custody. Earlier this year, the court directed the state government to amend the passport manual with reference to single mothers.

If that is a perplexing exercise, it’s only because the law has thus far bent over backwards to protect the rights of the father. Never mind that fatherhood isn’t a fact, only theory! The rights of the biological father, the step-father, the divorced/separated father, the MIA (missing in action) father were given primacy. The July 6 judgment is important in that it acknowledges that an absentee father—no matter what the reason for his absence—is dispensable.

If journalist-turned-spiritual activist Madhav Kant Misra has his way, the next step will be doing away entirely with the father’s name on official documents. He has filed a petition in the Supreme Court, essentially saying that motherhood is a fact, that is, “a mother’s identity is certain and definite.” For the mother not to be given primacy was “against the basic law of nature”. He questioned the practice of not identifying the child with the mother’s name. A SC bench headed by Chief Justice HL Dattu himself, has issued notice to all state governments, asking them to respond to the petition.
Some commentators have objected to the ruling on the grounds that it infringes on personal law and amounts to batting for a uniform civil code. Former law minister Salman Khursheed does not agree. “The ruling is limited to the issues raised in the petition in question. It has nothing to do with personal law. However, when such cases come up in future, no judge is likely to set this aside and rule otherwise,” he says.

How do these judgments translate on the ground? In metropolitan Delhi, schools do not question a mother’s signature. The Central Board of Secondary Education allows students to use either the father or mother’s name. For a single mother to open a bank account in her minor child’s name is now a breeze. But in smaller towns and rural India, the child of a single mother can still be denied admission in a municipal school because the father’s signature is missing from the application form. And passport authorities still demand that “spouse name” be endorsed when applying for a minor’s passport. The Vikramjit Sen ruling will hopefully lead to that procedure being amended.

What is urgently needed now is a clearly stated official policy, making the mother not only a co-equal “natural guardian” of the child but fully capable of being the sole guardian. The pernicious Section 6 of the Hindu Minority and Guardianship Act—creatively interpreted by the SC in favour of gender justice—which grants natural guardianship of a Hindu minor to the father “and after him” the mother, must be turned on its head, once and for all.

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