Saturday, 13 June 2020

Good legal article on Rights of an Unmarried Mother Over Her Child


   Article Submitted by 


  • Archit Uniyal
    •  1st degree connection

    3rd Year Student at Jindal Global Law School

    • Dehradun, Uttaranchal, India



    “The law is dynamic and is expected to diligently keep pace with time and the legal conundrums and enigmas it presents”
    The idea of equality prevails over every legal jurisprudence. Therefore, in today’s time, it has become an important matter to discuss the rights of the unmarried mother over her children.
    Generally, the courts give custody of a small child to the mother, and older boys and girls to the father and mother respectively. For older children, the courts also take into consideration the wishes of the children. However, none of this is set in stone and if the opposite party can prove that the parent is unfit to be the legal physical guardian of the child, then the courts will rule accordingly.

    Unmarried Women and Adoption:
    In a precedent, the apex court has given the right of guardianship of the child to a divorced mother. The matter gets complicated when a single woman desires to adopt a child. an unmarried Hindu mother possesses all the rights to adopt a child if she fulfils all the required criteria’s (of sound mind, not a minor, etc) for a valid adoption Hindu Adoption and Maintenance Act 1956.


    Rights of an Unmarried Mother over her Adopted Child:
    -       An adopted child shall be deemed to be the child of her adoptive mother
    Rights of a Surrogate mother:
    -       A surrogate mother has no legal rights over her child.



    CASES:
    In 2011 an appeal by an unmarried woman was rejected by the Delhi high court regarding having the guardianship of his son. The woman desired to make her son the nominee in all her savings and insurance policies but was told that she must either get a guardianship certificate from the Court or declare the name of her father. An application was filed by her under Section 7 of the Guardians and Wards Act, 1890 to declare her as the sole guardian of her son but the provision in section 11 requires a notice to be sent to the parents of the child and needs the biological father’s consent before a guardian is appointed. If the father is alive and fit, Section 19 of the Guardians and Wards Act prevents a mother to be the sole guardian. 
    The woman then appealed to the supreme court having the thought that the identity of the father should not be a mandatory thing when applying for the sole guardianship just like his identity is irrelevant in a passport application form.
    In the case of ABC Vs, The State (NCT of Delhi) the father had chosen to forsake his duties and responsibilities regarding the child. The main focus was on the welfare of the child and the mother is best suited to care for her offspring according to a predominant legal thought across the world and in some statutes in India”. 
    In the case Githa Hariharan v. Reserve Bank of India it was clarified that, in the context of Section 6 of the Hindu Minority and Guardianship Act  as well as Section 19 of the Guardians and Wards Act,  “in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity.”

    The judges of the case pointed out, took into consideration and discussed the following-
    1)    India is a secular nation and religion must be distanced from law:
    When it comes to custodial matters in India (live in relationships or unmarried women), there is usually a strict interpretation of the Hindu Minority and Guardianship Act which states that an unmarried mother will have no right over her child. The Hindu law states that the mother has no right to custody of her child (as it decided according to who is the natural guardian of the child) in the following situations-

    ·       Where Minor is a Boy or an Unmarried Girl
    ·       Till the age of five, the natural guardian is the mother of the child, irrespective of whether the child is a boy or a girl.
    ·       After five, father is the natural guardian of the minor and after father’s death, right is of the mother.
    But, at times when the father of the child ceases to be the guardian of the child when he shows no interest in his welfare, a liberal approach is taken up by the court and this strict interpretation of law is ignored.
    India is a secular nation and it is a basic necessity that religion should be distanced from law. Therefore, the main aim in cases regarding custody and guardianship should be legislative intent and prevailing case law rather than the parties’ religion. Christian unwed mothers in India are disadvantaged when compared to their Hindu counterparts, who are the natural guardians of their illegitimate children by virtue of their maternity alone. That’s when the uniform civil code comes into play. The court in the following case said that “It would be apt for us to emphasize that our Directive Principles envision the existence of a Uniform Civil Code, but this remains an unaddressed constitutional expectation.”

    2)    International position regarding illegitimate child:
    In 2004, the Supreme Court of the Philippines held in a case that an illegitimate child is under the sole parental authority of the mother. Section 17 of the Care of Children Act, 2004, a law in New Zealand, states that the mother of a child is the sole guardian if she is not married to, or in civil union with, or living as a de facto partner with the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child.



    3)    Women can raise children alone in today’s world:
    Vikramjit Sen and A.M. Sapre said that in today’s society, where more and more women are choosing to raise their children alone, and where the unknown father has shown no interest in the child, we see no purpose in giving him legal recognition by imposing an unwilling father to reveal his name.

    4)    Right to Privacy:
    It is crucial that the rights of the mother are given due consideration. Fundamental right of privacy pf the mother would be violated if she is forced to disclose the name and particulars of the father of her child. Any responsible man if concerned about the welfare of the child would keep track of his offspring he has brought into the world.

    5)    Parent in Section 11 of the Guardianship and Wards Act can mean a single parent:
    The term “parent” is not defined in the Act, hence in cases like these regarding illegitimate children whose sole guardian is one of his/her parents, it primarily means a parent alone. The parent who has no involvement is therefore not excluded from approaching the Court to quash or modify its orders if its better for the interests of the child.

    6)    Father’s name is not needed for birth certificate, passport and school purposes:
    The identity of mother is never in doubt. If an unwed mother applies for the issuance of a Birth Certificate for a child born from her womb, she is only required to furnish an affidavit to this effect to the authorities concerned, and shall issue the Birth Certificate, unless there is a contrary direction by the court. It was laid out in a breakthrough case that the “mother’s name alone is sufficient in certain cases where she is a single parent in passport and that the name of one’s biological father is not necessary in all cases”.

     Child Custody Under Muslim Law

    Under Muslim personal law, the mother has the sole right(right of hizanat) to the child’s custody unless she is unfit as a guardian. The right of hizanat can be enforced against any person including the father.
    The welfare of the children is at the forefront of Muslim law and that’s why the right of hizanat is not absolute and exists only if it is beneficial and in the interest of her children.


    Child Custody Under Christian Law

    The Indian Divorce Act, 1869, becomes applicable for all matters pertaining to Christian children and their guardianship as the Christian laws do not have any special mention about child custody rights. The court however has the authority to change its past orders if at present it’s in the interest of the welfare of the ward.

    Conclusion:
    The appeal of the woman was allowed by the Supreme court over ruling the Guardianship and Wards Act and the decision by the High Court. The Guardian Court was directed to recall the dismissal order passed by it and thereafter consider the application for guardianship expeditiously without requiring notice to be given to the putative father of the child. At the same time the decision also helps single women/men or couples in live-in relationships to have kids. Ignoring the Laws of various religion and just keeping in mind the welfare of the child, this was one of the most progressive judgements by the supreme court, was welcomed by all women right activists and was celebrated all around the country. This judgement by the  Supreme Court about single mothers is breaking taboos since single mothers are usually systematically shamed in a society that still goes by archaic, patriarchal notions of identity.




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