Unwed mother can be a guardian of her child: SC

The Supreme Court of India has held that an unwed mother can be appointed as the legal guardian of her child without the consent of the father.

“It is thus abundantly clear that the predominant legal thought in different civil and common law jurisdictions spanning the globe as well as in different statutes within India is to bestow guardianship and related rights to the mother of a child born outside of wedlock”, the Court ruled.

The Court was hearing a plea by a Christian woman who challenged the necessity of sending a notice to the parents (in this case – father) of the child before a guardian is appointed under Section 11 of the Guardians and Wards Act 1890.

The Court said that in a case where one of the parents petitions the Court for appointment as guardian of her child, the provisions of Section 11 would not be directly applicable. Section 11 applies to a situation where the guardianship of a child is sought by a third party, thereby making it essential for the welfare of the child being given in adoption to garner the views of child’s natural parents.

“In situations such this, where the father has not exhibited any concern for his offspring, giving him legal recognition would be an exercise in futility. In today’s society, where women are increasingly choosing to raise their children alone, we see no purpose in imposing an unwilling and unconcerned father on an otherwise viable family nucleus. It seems to us that a man who has chosen to forsake his duties and responsibilities is not a necessary constituent for the wellbeing of the child,” the Court opined.

The Court also ruled 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.

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