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ABC V. STATE

ABC v. State, 2015 SCC OnLine SC 609

ISSUE:

  • Whether it is imperative for an unwed mother to specifically notify the putative father of the child whom she has given birth to of her petition for appointment as the guardian of her child?

RULE:

  • S.7, S.11 and S.19(b) Guardians and Wards Act, 1890[GWA]. S.8 Succession Act 1925 [SA]. S.6(b) Hindu Minority and Guardianship Act, 1956

FACTS:

  • The Appellant, who adheres to the Christian faith, is well educated, gainfully employed and financially secure. She gave birth to her son in 2010, and has subsequently raised him without any assistance from or involvement of his putative father.
  • Desirous 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 the Guardians and Wards Act, 1890 (the Act) before the Guardian Court for declaring her the sole guardian of her son. Section 11 of the Act requires a notice to be sent to the parents of the child before a guardian is appointed.
  • The Appellant has published a notice of the petition in a daily newspaper, namely Vir Arjun, Delhi Edition but is strongly averse to naming the father. She has filed an affidavit stating that if at any time in the future the father of her son raises any objections regarding his guardianship, the same may be revoked or altered as the situation may require.
  • However, 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 19.4.2011.
  • The Appellant’s appeal before the High Court was dismissed in limine, on the reasoning that her allegation that she is a single mother could only be decided after notice is issued to the father; that a natural father could have an interest in the welfare and custody of his child even if there is no marriage; and that no case can be decided in the absence of a necessary party.
  • She now files for an appeal at the Supreme court challenging the procedural requirement under Section 11 arguing that there were three reasons not to name the father. (1) she did not want to divulge her identity, because he was at risk of denying paternity, since she was already married. (2), such a disclosure can have an effect on his relatives because of his marital status.
    she claimed that if she were forced to reveal the name of the father, she would breach her fundamental right to privacy.

HELD:

  • The court in performing its parens patriae obligations, puts the welfare of the child above the rights of all else but also discusses the rights and legal duties of both the parents. The mother is gainfully employed and financially secure, is not unfit and, this not being a custody battle her right to guardianship is not in question.
  • In releasing the newspaper application and providing the affidavit, the court believes that the duties and rights of the father have sufficiently secured should he choose to contest such a guardianship in the future. The court hence, does not find it necessary to notify a father who has so far shown no involvement or concern in the parenting of the child.
  • The non-disclosure of the father’s identity (and consequentially the protection of the appellant’s right to privacy) in no way harms the child and in fact in this case protects the child from social stigmatisation, such as in cases where the father could publicly deny his paternity.
  • In order to protect the Child’s right to know his father the court asked the appellant to inform her son of the same, which she did, and all known details of the father were given to the court, which remain in a sealed envelope till further direction.
  • The court then explored the extent of applicability of section 11 of HGMA using two cases. S.19 of the HGMA says that another guardian cannot be appointed as long as the father is alive and fit and is supported by S.6(b) which makes the mother only the Secondary guardian. but in the Githa Hariharan case it was held that the father by indifference, an agreement, incapacity etc can be deemed to be absent for the purposes of these sections, wherein the mother becomes the natural guardian. Notification in S.11 is primarily in cases where a 3rd party seeks guardianship, like in adoption, and the natural parents need to be informed. This too was held unnecessary in the Laxmi Pandey case, if it is for the welfare of the child.
  • Since “Parents” is not defined anywhere, the court in cases of illegitimate children to refers to the “parent” who is the sole caregiver. The court thus, finds no harm in relaxing the reading of S.11, which is purely procedural, in order to uphold the intent of this act which is to protect the interests of the child.
  • It was also found that the child did not have a birth certificate, and in performing its parens patriae obligations, the court as an obiter makes it necessary for a mother to only submit an affidavit to the affect that the child is born from her womb, in order to register the child’s birth and obtain a birth certificate. It chastised the previous courts for being derelict in dismissing this plea completely, instead of engaging with the issues that threatened the welfare of the child.
  • The guardian court was directed to recall its dismissal and consider the appellant’s application for guardianship expeditiously, without requiring that notice be given to the father.