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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