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FAMILY LAW I INTERNAL ASSIGNMENT
FACULTY: PROF. JAISY GEORGE
PROF. S. PEDNEKAR
DATE OF SUBMISSION: 18TH AUGUST, 2015
ARSHITA SINGH
14010126440
SRUTHI DINESH
14010126447
DIVISION E (SEM III)
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ABC vs. the State (NCT of Delhi) (06.07.2015- SC)
1) NAME OF THE PARTIES :
Appellants: ABC
Vs.
Respondent: The State (NCT of Delhi)
2) CITATION: 2015VII AD (S.C.) 389, 2015(7)SCALE483
3) HON'BLE JUDGES/CORAM: Vikramjit Sen and Abhay Manohar Sapre, JJ.
4) CASES REFERRED BY THE COURT:
Joey D. Briones v. Maricel P. Miguel et al, G.R. No. 156343; Laxmi Kant Pandey v.
Union of India MANU/SC/0080/1985: 1985 (Supp) SCC 701; Githa Hariharan v.
Reserve Bank of India MANU/SC/0117/1999: (1999) 2 SCC 228
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5) FACTS
The Appellant gave birth to a child and raised him without any assistance from the
putative father. With the desire 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 Guardians and Wards Act,
1890 for declaring her the sole guardian of her son. Though the Appellant has published a
notice of the petition in a daily newspaper, but she was strongly averse to naming the
father. Consequently, 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 appeal, the High Court confirmed the order of lower
authority by holding that no case can be decided in the absence of a necessary party.
Hence, present appeal was preferred for appeal in the Supreme Court.
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6) ISSUE INVOLVED:
Whether under section 11 of The Guardian
and Wards Act, 1890, it is imperative for an
unwed mother to notify the putative father
of the child.
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7) DECISION OF THE COURT:
Delivering a quintessential decision interpreting Section 11 of Guardians and Wards Act,
1890, involving the question that whether an unwed mother must specify the name of the
putative father in her petition for her appointment as the guardian of her child, the
Division Bench of Vikramjit Sen and A.M. Sapre, JJ., held that the appellant can apply
for her child’s guardianship without giving notice under Section 11 of the 1890 Act, to
the putative father of her child. The Court further stated that Section 11 is not directly
applicable in cases where one of the parents petitions the Court for appointment, as
guardian of the child. The Court further directed that if a single parent/unwed mother
apply for the issuance of a Birth Certificate for her child, the authorities concerned may
only require her to furnish an affidavit to this effect, and must issue the Birth Certificate.
The appellant had applied under Section 7 of the Guardians and Wards Act, 1890 before
the Guardian Court, for declaring her to be the sole guardian of her son, and as per the
requirements under Section 11 of the 1890 Act, published a notice of the petition in a
daily newspaper. However, owing to the refusal of the appellant to name the father of the
child, the Guardian Court and the Delhi High Court dismissed her application. Moreover
as per Section 7 of the 1890 Act, the welfare and interest of the child is the paramount
consideration, which would be only served if the appellant is appointed as the guardian.
The observations of the Court spanned not only around similar provisions concerning the
guardianship/custody of an illegitimate child as found in various legislations, but also
around the prevalent laws on the issue, as found in different legal systems of the world.
The Court noted that a mother has the primary guardianship rights over her child.
Keeping in mind the welfare of the child as envisaged under the 1890 Act, the Court
observed that the child would be saved from social stigma, if the appellant is not
compelled to disclose the identity of the father. In the opinion of the Court, Section 11 is
applicable in those cases where the guardianship of a child is sought by a third party,
thereby mandating the issue of notice to the child’s natural parents. The Court further
observed that Section 11 being purely procedural, the requirements can be relaxed in
order to achieve the object of the Statute i.e. interest of the child.
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8) ANALYSIS
Section 11 of the Guardians and Wards Act, 1890 is purely procedural.
The act did not define the term “parent”, and it was interpreted in the case of illegitimate
children whose sole caregiver is one of his/her parents, to principally mean that parent
alone. Guardianship or custody orders never attain permanence or finality and can be
questioned at any time, by any person genuinely concerned for the minor child, if the
child's welfare is in peril. The uninvolved parent is therefore not precluded from
approaching the Guardian Court to quash, vary or modify its orders if the best interests of
the child so indicate. There is thus no mandatory and inflexible procedural requirement of
notice to be served to the putative father in connection with a guardianship or custody
petition preferred by the natural mother of the child of whom she is the sole caregiver.
In the face of the express terms of the statute, the Court had in Laxmi Kant Pandey
directed that notice should not be sent to the parents, as that was likely to jeopardize the
future and interest of the child who was being adopted. The sole factor for consideration,
therefore, is the welfare of the minor child, regardless of the rights of the parents.
The researchers also found that, the learned bench went beyond the contented provisions
and provided with a remedy which might arise in the coming future of birth certificates to
be provided to the child in cases of single mothers, in regard to the rising cases and
situations of the society. They declared the necessity of either of both the parents,
whosoever may be the sole caregiver of the child. The learned bench stated that:-
“It is seen that the Appellant has not obtained a Birth Certificate for her son who is nearly
five years old. This is bound to create problems for the child in the future. In this regard,
the Appellant has not sought any relief either before us or before any of the Courts below.
It is a misplaced assumption in the law as it is presently perceived that the issuance of a
Birth Certificate would be a logical corollary to the Appellant succeeding in her
guardianship petition. It may be recalled that owing to curial fiat, it is no longer necessary
to state the name of the father in applications seeking admission of children to school, as
well as for obtaining a passport for a minor child. However, in both these cases, it may
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still remain necessary to furnish a Birth Certificate. 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. Accordingly, we
direct that if a single parent/unwed mother applies for the issuance of a Birth Certificate
for a child born from her womb, 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”1.
1 MANU/SC/0718/2015
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9) JUDGEMENT APPRAISAL
The appeal in the high court was dismissed on the basis that the application cannot be
entertained unless she discloses the name and address of the father of her child, thereby to
enable the Court to issue process to him. The High Court dismissed the case on the
pretext of even assuming that there is no marriage, the natural father would also have an
interest in the welfare/custody of the child and also the child’s guardianship.
It is a fundamental principle of law that no case can be decided in the absence of a
necessary party. Non-joinder of a necessary party is fatal to a case. Surely, the father is a
necessary party to the case and the petitioner/appellant cannot be allowed to get a
decision in her favor merely by impleading the State as the respondent i.e.,
without making the natural father as a respondent in the case and serve him. Aggrieved
by the HC’s dismissal of her appeal without going into the merits of the case, the woman
approached the Supreme Court. The appeal was then lodged in the Supreme Court.
Contention of Section 11 requires a notice to be given to the ‘parents’ of a minor before a
guardian is appointed; and that as postulated by Section 19, a guardian cannot be
appointed if the father of the minor is alive and is not, in the opinion of the court, unfit to
be the guardian of the child. The impugned judgment is, therefore, in accordance with the
Act and should be upheld. Supreme Court then concluded that the above indicates that
priority, preference and pre-eminence is given to the mother over the father of the
concerned child.
In this case, the learned judges of the Supreme Court have delivered a remarkable
judgement interpreting the section 11 of the Guardians and Wards Act, 1820 widening
scope of the term parent by properly defining it and thereby giving an unwed mother the
sole guardianship in absence of the putative father. The researchers are in conforming to
the judgement delivered by the Bench.
The learned Bench, going beyond the four corners of the contents of the case had also
declared a very important provision regarding the issuing of Birth Certificates to the
children of single/unwed mothers. The Bench issued that, no more is there a necessity for
both parents to be present for the issuance of the Certificate, as the earlier rule stated.
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But with the modernizing society, and the realization that many problems and cases
might arise with the fast going adaption of the citizen to live in relations, to avoid the
misery of single/unwed mothers in raising their child alone, the court delivered this
judgement. This eases the situation of such women who might be coerced into involving
the putative father to obtain many of the documents of the child such as passport, birth
certificates, school documents, etc.
Thus, the learned Bench upheld the concept of Rule of Law and Justice, Equity and Good
Conscience.
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10) CONCLUSION
This case took a leap from the patriarchal Indian society and took a holistic step towards
the welfare of the child above all, declaring a guardian as either or one of both parents,
irrespective of the parent being a single mother, if she is the sole caregiver to the child
and it is not necessary to be the living father only. Irrespective of the prevalent personal
laws which gives different rights to the mother of the child and has especially suppressed
many of the rights of the mother, this judgement has after all moved on with the
advancements of the society and embraced the idea of a single mother being able and
capable enough to take care of the welfare of her child without the involvement of the
putative father.
Moreover, it is unnecessary to include an uninvolved father in the welfare of the child
when he is least interested and has turned away from the basic duty of being a father.
With this judgement, the court has ordered the non-inclusion of the uninvolved putative
father from all important documents of the child like, passports, birth certificates, and
school documents, etc.
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