Single parents as legal guardians





This Article is authored by Advocate Anil Malhotra.


Karan Johar, Tushar Kapoor, Neena Gupta and Sushmita Sen are single parents. Verdict of Supreme Court in ABC, held that a single unwed mother has a right to maintain a petition to claim sole and exclusive guardianship of a child born outside of wedlock. It was a path breaking view shattering shackles of traditional and conventional societal setups in a realm of statutory personal laws where a Uniform Civil Code is a Constitutional aspiration. Apex Court set aside the judgments of Guardian Judge and High Court which had summarily rejected the claim of mother who had refused to disclose the identity of father, which had obviated issuance of notice to the natural father. Supreme Court whilst setting aside dismissal by Guardian Judge, upheld maintainability of single mother’s application for guardianship and remanded it to Guardian Court for considering and deciding matter on merits expeditiously, without requiring notice to be given to father of child. Apex Court in doing observed that, “having received knowledge of a situation that vitally affected the future and welfare of a child, the Courts below could be seen as having been derelict in their duty in merely dismissing the petition without considering all the problems, complexities and complications concerning the child brought within its portals.”


Salutory Apex court judgment which protects identities of all parties also culls out a new dimension of matrimonial rights in recognising mother’s fundamental right of privacy which may have been violated, if she was compelled to disclose name and particulars of father of child. It was held that there is no indication that welfare of child would be undermined in non-disclosure of identity of father or that court notice is mandatory in child’s interest. It was decided that non-issuance of notice to father “may well protect the child from social stigma and endless controversy.” However, very aptly, Apex Court has a note of caution for verdict being relied upon in other inter-parental child custody disputes by stating that, “we should not be misunderstood as having given our imprimatur to an attempt by one of the spouses to unilaterally seek custody of a child from the marriage behind the back of other spouse.”


Espousing implementation of a uniform civil code, Apex Court laments, “this remains an unaddressed constitutional expectation.” Erudite verdict drawing support from India acceding to Convention on Rights of Child, overcomes barriers of religion. It accords relief to unwed Christian mothers in India by granting benefit of seeking guardianship, “of their illegitimate children by virtue of their maternity alone, without the requirement of any notice to the putative fathers.” This is in tandem to earlier path-breaking verdicts. In Stephanie Joan Becker, a single 53 years lady was permitted to adopt a female orphan child aged 10 years by relaxing the rigor of guidelines of CARA in totality of facts of case that the proposed adoption would be beneficial to child as experts were of view that adoption process would end in successful blending of child in USA. Likewise, in Shabnam Hashmi, Apex Court upholding recognition of right to adopt and to be adopted as a fundamental right has held that every person, including Muslims, irrespective of religion they profess is entitled to adopt a child. Verdict in National Legal Services Authority, recognising transgender as third gender have held “that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution.” Clearly, a new family law emerges.


Apex Court gave a new beneficial interpretation to term “Parent” in the Guardian and Wards Act, 1890 (GWA) by interpreting it to mean, “in the case of illegitimate children whose sole care giver is one of his/her parents, to principally mean that parent alone.” Likewise, requirement of appointment of a guardian under the GWA for a minor whose father is living, the milestone verdict rules, “the views of an uninvolved father are not essential, in our opinion, to protect the interests of a child born out of wedlock and being raised solely by his/her mother.” Finding that sole factum before Court is welfare of minor child, benefit further reaches out to issuance of birth certificates as well, by issuing directions, “intendedly not restricted to the circumstances or the parties before us.” It is held, “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.” This general directive, will serve as a mandatory practice direction for administrative authorities, Family Courts and Guardian Judges all over country who are faced with peculiar dilemma of having similar guardianship petitions before them and could not have decided such petitions of single parents.


Above laudable directions, may pose a dilemma in cases where children are conceived and/or born from In-vitro Fertilisation (IVF) and surrogacy arrangements to couples or single/gay parents, where legal identity of mother may not be disclosed. Necessarily, child born to womb of a surrogate mother will not qualify her to benefit of a birth certificate under new surrogacy laws. This causes conflicting problems with natural parents particularly when the commissioning or single mother relies on an egg donor. Such a predicament may only necessitate Parliament to legislate a law, because misconceived reliance on judgment may create litigative rights for seeking undue benefits for extraneous considerations in such cases. Regardless, verdict is a fresh breath espousing rights of parenthood upon single parents and unwed mothers caught up in a conventional time wrap wherein Apex Court has held that, “the law is dynamic and is expected to diligently keep pace with time and the legal conundrums and enigmas it presents.” Yeoman spirit of Supreme Court to give effective relief in a plethora of conventional personal laws reflects vibrant stature of Indian judiciary reaching out in adjudicating controversial family disputes.