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The SC judgment on single mothers reflects how society has evolved

By Roshni Seth

THE Guardians and Wards Act, 1890, requires that a notice be given to the parents of a minor before a guardian is appointed; and a guardian cannot be appointed if the father is alive and is not unfit to be the guardian of the minor. In normal course, it is the father’s right to be involved in the child’s life and his welfare but what if he forsakes his responsibilities in the upbringing of his child? Should the law be applied in such a case?

On July 6, the Supreme Court delivered a path-breaking verdict in a case where a woman belonging to the Christian faith questioned the need to send notice to the father, saying any disclosure would create problems for both parents. She asserted her right not to disclose the parentage, arguing that in her case the father had nothing to do with the upbringing of her child.

The court held that, “where the father has not exhibited any concern for his offspring, giving him legal recognition would be an exercise in futility.”

The biological father who has abandoned his duties and responsibilities cannot be constituent to the well-being of the child. The archaic legal provisions such as seeking consent of an unwilling father for guardianship of the child only reflects backwardness and patriarchal notions prevalent in society. As a result, unwed mothers and their children have faced social stigma through the ages.

The judgment rightfully establishes the parentage of a child with the unwed mother and also recognizes that the unwed mother has the fundamental right to privacy. The unwed mother cannot be forced to publicly notify the name and particulars of the father of the child.

The court has also directed that that the father’s name is not required in case an application is received from an unwed mother for issuance of birth certificate of her child.

The petitioner’s agony was compounded on account of her being a Christian. A Hindu unwed mother can get the child’s sole guardianship as Section 6(b) of the Hindu Minority and Guardianship Act, 1956, makes specific provisions with respect to natural guardians of illegitimate children, and gives primacy to the mother over the father. Islamic law accords custody of illegitimate children to the mother and her relations.

The Supreme Court in this case did not go according to the tenets of Christian religion. Instead it ruled for the rights of an unwed Christian mother. Last year the Supreme Court took a similar liberal stance when it allowed Muslim parents the right to legally adopt a child although Muslim personal law does not recognize adoption. The judgment held that Indians cutting across faiths have the right to adopt a child.

The courts in India have been continuously expanding equitable rights for all genders, including transgenders and members of all religious communities, and have been advocating implementation of Uniform Civil Code. Former Chief Justices YV Chandrachud and VN Khare in the famous Shah Bano and John Vallamattom cases mentioned that a Uniform Civil Code will help the cause of national integration by removing contradictions based on ideologies.

Judgments such as these reflect the changing social norms and highlight the need for equal rights to people of all faiths to address religious inequalities and social prejudices prevalent in society.
It would be naive to expect that one judgment of the Supreme Court alone will redress injustices faced by unwed mothers. But the judgment is certainly a significant move forward and would help a large number of surrogate mothers, unwed mothers and sex workers with children.

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