Interpreting law to uphold the principle of welfare of the child being paramount, protecting the privacy of unwed mother

unwedBy Sumeysh Srivastava*

Mother’s love is peace. It need not be acquired, it need not be deserved”. – Erich Fromm

On July 6, 2015 the Supreme Court of India delivered a judgment which dealt with the question of whether it is imperative for an unwed mother to specifically notify the putative father of the child while applying for his guardianship. Before moving into the significant legal and procedural issues which this case highlights, it is difficult to ignore the absurdity of a biological mother having to apply for guardianship rights of her child. Guardianship in this context means being legally responsible for the care and management of a person.  As the biological mother of a child, no one is more suitable to be given the right to make decisions regarding the care and upkeep of the child, as long as it does not jeopardize the health and safety of the child.

Traditionally, the father was considered the sole guardian of the person and property of the child. The authority of the father in every aspect of the child’s life, including his/her conduct, education, religion and maintenance, was considered absolute and even the courts refused to interfere with the same. Mothers did not have any authority over children, since mothers did not have independent legal status; their identities being forged with that of their husbands upon marriage. As divorce became possible and mothers began to have independent legal existence and residence, their claim, if not right, to have custody of the children began to be recognized by the courts

The term ‘guardian’ is defined by the Guardians and Wards Act, 1890 as a “person having the care of the person of a minor or of his property or of both his person and property.” Another term used by the law is ‘natural guardian,’ who is the person legally presumed to be the guardian of a minor and who is presumed to be authorized to take all decisions on behalf of the minor. The legal difference between custody and guardianship (or natural guardianship) can be illustrated by the following example: under some religious personal laws, for very young children, the mother is preferred to be the custodian, but the father always remains the natural guardian.

In the present case, the High Court of Delhi held that an unwed mother’s guardianship application cannot be entertained unless she discloses the name and address of the father of the child. As per the requirement under Section 11 of the Act, she had published a notice of the petition in a local newspaper. She had also filed an affidavit stating that if any time in the future, the father raises any objections regarding the child’s guardianship, the same may be revoked or altered if required by the situation. The High Court dismissed her appeal for the guardianship application on the grounds that her claim of being 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.

The stand of the High Court reflects a preferential orientation towards the role of the father in matters of guardianship, where even though the father has not shown any concern or interest for his offspring, the court insists on giving him legal recognition and imposing an unwilling and unconcerned father on a family.

In addition to violating the right to privacy of an unwed mother, who may have personal and social reasons for not divulging the name of the father, by not allowing her to make her son her nominee in all her savings and insurance policies, it curtails the mother’s right to development, which has been recognized as a basic human right.

The Supreme Court, in its deliberations, laid particular stress on Section 7 of the Act, which makes it very clear that the interest of the minor is the only relevant factor for appointing of a guardian, and in this particular case, the interest of the child would be best served by immediately appointing the appellant as the guardian. Protection of the welfare of the child has been viewed as the main intention of the Act and the court has mentioned how this has been before. The welfare of the child takes priority over everything else, including the rights of parents.

The court stated that in the present case, there was no indication that the welfare of the child would be undermined if the appellant is not compelled to disclose the identity of the father. It was observed that this may protect the child from social stigma and needless controversy.

When we talk about the patriarchy which is reflected in our legal system, as well as the preference given to the father with respect to guardianship of the child, it is important to consider Gita Hariharan VRBI (1999) 2 SCC 228.

In this case, the constitutional validity of Section 6(a) was challenged as violating the guarantee of equality of sexes under Article 14 of the Constitution of India. The Supreme Court considered the import of the word ‘after’ and examined whether, as per the scheme of the statute, the mother was disentitled from being a natural guardian during the lifetime of the father. The Court observed that the term ‘after’ must be interpreted in light of the principle that the welfare of the minor is the paramount consideration and the constitutional mandate of equality between men and women. The Court held the term ‘after’ in Section 6(a) should not be interpreted to mean ‘after the lifetime of the father,’ but rather that it should be taken to mean ‘in the absence of the father.’ The Court further specified that ‘absence’ could be understood as “temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise.”

The father continues to have a preferential position when it comes to natural guardianship and the mother becomes a natural guardian only in exceptional circumstances, as the Supreme Court explained

Thus, even if a mother has custody of the minor since birth and has been exclusively responsible for the care of the minor, the father can, at any time, claim custody on the basis of his superior guardianship rights. Gita Hariharan, therefore, does not adequately address the original problem in Section 6(a) of the Hindu Minority and Guardianship Act (HMGA), 1956.

Attention must also be given to sections 6[c] of the  HMGA and section 19[a] of the Guardians and Wards act, 1890. which, though unrelated to this case, are very vexed provisions, making the husband of a married girl her guardian, reinforcing the notion of women as property of men, for whose care and maintenance, the husband has to be responsible, questioning her capacity to maintain herself.

In conclusion, the Supreme Court has to be commended in interpreting the law to uphold the principle of welfare of the child being paramount and protecting the privacy of an unwed mother. It is important to note that the court has not dealt categorically with the question of an unwed mother’s right to guardianship over her child. An initiative to uphold the same would have indeed made this a landmark decision. However, since the father was not a party in this case, there was no opposition to her claim for guardianship and hence this was an aspect which was ignored by the court. The Supreme court has in recent times exhibited a holistic and liberal approach in dealing with issues related to women, but this was once occasion on which it decided to do just about enough, good, but within a limited, structured paradigm.

This showcases how the clash against perceptions, notions, structures and institutions which help to internalize and propagate patriarchy is an extensive one.

*Centre for Social Justice, Ahmedabad

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