NOTES AND COMMENTS

LAW RELATING TO GUARDIANSHIP OF CHRISTIAN MINOR AND

RIGHT TO WITHHOLD THE NAME OF FATHER OF HER CHILD BY
UNWED MOTHER: A COMMENT ON ABC V. THE STATE (NCT OF
DELHI)

I. Introduction

A Guardian is a person having the care of the person of a minor or of his property or of both his
person and property1 . It refers to a bundle of rights and powers that an adult has in relation to the
person and property of a minor2 . These rights include right to determine the child‘s upbringing in
the regard to religion, education, and other matters such as the disposal of properties and so on.
A guardian is vested with the duty to act for the welfare of the minor 3 . The law relating to
guardianship of minor is mainly dealt under personal laws in India. For example, the law relating
to guardianship of a Hindu minor is dealt under the Hindu Minority and Guardianship Act.
However, it is to be noted that there is no specific personal law dealing with the guardianship of
a Christian minor, though the Guardians and Wards Act, 1890 provides for the procedure for
appointment of a legal guardian. In the absence of a specific law, there can be chances of various
disputes about the guardianship of a Christian minor. One such issue is discussed in the case of
ABC v. State (NCT of Delhi)4 .

II. Background of the Case

The appellant, a follower of Christian faith 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 she was informed that she must either declare the name of the father or get a

1
Section 4 (2) of Guardians and Wards Act, 1890
2
Law Commission of India, Two hundred fifty-seventh Report: Reforms in Guardianship and Custody Laws in
India (Government of India, 2015).
3
See, http://cbseacademic.in/web_material/doc/Legal_Studies/XI_U5_Legal_Studies.pdf, visited on 8. 09. 2015.
4
Decided on 6th July 2015. Full text is available at http://supremecourtofindia.nic.in/FileServer/2015-07-
06_1436184974.pdf, (Last visited on 8th September, 2015).

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guardianship/adoption certificate from the Court. So she filed an application under Section 7 of
the Guardians and Wards Act, 1890 before the Guardian Court for declaring her as 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. Therefore, appellant has published a notice of the petition in a
daily newspaper without mentioning the name of 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. But she refused to comply with the
directions of the Guardian Court and as a result, the Court dismissed her guardianship
application. The Appellant had approached the High Court and the appeal before the High Court
was dismissed in limine, on the reasoning that her application for declaration that, she is a single
mother and guardian of the child could only be decided after notice is issued to the father. The
Court also stated 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 like natural father.

III. Disputed Arguments and Questions

The Counsel for the Appellant submits that, ―the Appellant does not want the future of her child
to be marred by any controversy regarding his paternity, which would indubitably result should
the father refuse to acknowledge the child as his own. This is a brooding reality as the father is
already married and any publicity as to a declaration of his fathering a child out of wedlock
would have pernicious repercussions to his present family. There would be severe social
complications for her and her child. As per sec 7 of the Act, the interest of the minor is the only
relevant factor for appointing of a guardian, and the rights of the mother and father are
subservient thereto. In this scenario, the interest of the childwould be best served by immediately
appointing the Appellant as the guardian‖. Further, it is also argued that, ―the fundamental right
to privacy of appellant will be violated if she is compelled to disclose the name and particulars of
the father of her child‖.

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The learned council for State contended that sec 11 requires a notice to be given to the ‗parents‘
of a minor before a guardian is appointed; and that as postulated by Section 19, a guardian
cannot be appointed if the father of the minor is alive and is not, in the opinion of the court, unfit
to be the guardian of the child. Therefore, the judgment of the lower court is in accordance with
the Act and should be upheld. From the arguments of both the sides two important questions
came up for consideration of the Supreme Court:

1. Whether the single unwed mother should comply with the procedures mentioned under the
Guardians and Wards Act, 1890?

2. Whether a single unwed mother can be compelled to disclose the name of the father of her
son?

IV. Judgment

The Supreme Court discussed the case in detail and took recourse to earlier cases like Laxmi
Kant Pandey v Union of India5 and Githa Hariharan v. Reserve Bank of India 6 . The Court
observed that, ―in a case where one of the parents petitions the Court for appointment as
guardian of her child, we think that the provisions of sec 11 would not be directly applicable. It
seems to us that sec 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 the child‘s natural parents. 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‖. Further the Court stated that, ―Sec 11 is purely procedural; we see no
harm or mischief in relaxing its requirements to attain the intendment of the Act. Given that the
term ―parent‖ is not defined in the Act, we interpret it, in the case of illegitimate child whose sole
caregiver is one of his/her parents, to principally mean that parent alone. Guardianship or
custody orders never attain permanence or finality and can be questioned at any time, by any
person genuinely concerned for the minor child, if the child‘s welfare is in peril. The uninvolved
parent is therefore not precluded from approaching the Guardian Court to quash, vary or modify
its orders if the best interests of the child so indicate. There is thus no mandatory and inflexible

5
1985 (Supp) SCC 701.
6
(1999) 2 SCC 228.

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procedural requirement of notice to be served to the putative father in connection with a
guardianship or custody petition preferred by the natural mother of the child of whom she is the
sole caregiver‖.

Regarding the right of an unwed mother to keep secret the name of the father of her child the
Court observed, ―We do not find any indication that the welfare of the child would be
undermined if the Appellant is not compelled to disclose the identity of the father, or that Court
notice is mandatory in the child‘s interest. On the contrary, we find that this may well protect the
child from social stigma and needless controversy‖. By answering the questions of dispute in this
manner the Apex, directed to the Guardian Court to recall the dismissal order passed by it and
thereafter consider the Appellant‘s application for guardianship expeditiously without requiring
notice to be given to the putative father of the child.

Analysis of the Judgment

This case highlighted the issue of laws applicable to guardianship of Christian minor. Other
religions have their own personal laws to deal with the questions of guardianship. However there
is no personal law dealing with the guardianship of Christian minor. In this case the question of
guardianship is discussed on the basis of the Guardians and Wards Act, 1890. It is to be noted
here that the application of the Guardians and Wards Act, 1890 in this case raises serious
concerns. This is because the basic purpose of the Guardians and Wards Act, 1890 is to protect
the welfare of the child when the natural parents are absent or unable or unwilling to ensure the
interest of such child. Therefore, the Act envisages a situation in which the Court confers
guardianship to a third party who is interested in the welfare of the child and able to do so. Thus,
the Act does not contemplate a situation where a natural parent is applying for guardianship. The
judgment of the Court in this case can be appreciated to the extent it impliedly accepted any
question relating to the custody of a Christian minor can be discussed under the Guardians and
Wards Act, 1890. However, it can be criticized on the ground that, the judiciary could have made
an open declaration about the legislative gap existing in the Indian legal framework, i.e. the law
relating to guardianship of Christian minor. The Court also sympathized about his position of
law in the following words: ―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, without the requirement of any notice to the putative fathers‖.

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The Court could have made a recommendation to the legislature to take steps for drafting a law
thereby declaring clearly the guardianship of a Christian minor like the Hindu Minority and
Guardianship Act, 1956. If there is a law that specifically deals with the issue of guardianship of
Christian minor, like HMGA, disputes, like in the present, does not arise in future. When there is
a specific law recognizes the rights of natural parents as guardian of their child, the official
application forms do not require a declaration from the court in this regard.

Regarding the question whether compelling an unwed mother to disclose the name of the father
of her child, the Court did not address the scope of right to privacy for its determination. Rather
the Court has stated simply the non-disclosure will protect the interest of child and hence she
shall not be compelled to answer. It is to be noted, the right to privacy of an individual as a basic
human right is articulated in a myriad of international human rights instruments 7 . In most of
these human rights instruments, the right to privacy is expressed in general terms and, in essence,
simply means that individuals have a human right to privacy or private life. It is generally
accepted that the notion of privacy is broad in scope and encompasses within its meaning various
other facets which are essential for the realization and enjoyment of this right8 . An analysis of
foreign legal systems as well as domestic law of India reveals that the human right to privacy is
very closely linked to and in fact an essential component of family life including the right to
make reproductive choices9 . It can be seen that the notion of right to privacy of a women
encompasses all possible aspects of her decision ‗whether to bear or beget a child including the
aspect with whom and when‘. It necessarily includes right to withhold the name the father of her
child. This case was provided a great opportunity to Indian judiciary to expressly declare the
right to withhold the name of the father as a facet of right to privacy. However, unfortunately, the
Apex Court has not ventured to analyze the said issue in the angle of right to privacy.

Further, this judgment will open the room for a new legal discussion and closed a door for legal
disputes by declaring, ―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

7
See, art 12 of the UDHR, 1948; art 12 of the ICCPR, 1966; art 16 and art 40 of the Convention on the Rights of
Child, 1989, art 4 of the African Charter on Human Rights and Peoples Rights, 1981; art 22 of the Convention on
the Rights of Persons with Disabilities, 2006; and art 8 of the European Convention on Human Rights , 1950.
8
Berta E. Hernandez, To Bear or Not to Bear: Reproductive Freedom as an International Human Right, 37 Brooklyn
Journal of International Law 309 (1991)329.
9
Aneesh V. Pillai, Surrogate Motherhood and the Law139 (Regal Publications, 2015).

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her to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate, unless
there is a Court direction to the contrary‖. Thus the Court has declared the right to get a birth
certificate of children born to unwed mothers. The decision in this case stands as a reminder to
the Indian legislature to take adequate steps to protect the welfare of the Christian Minor by
establishing adequate law dealing with guardianship.
Aneesh V. Pillai*

*
Assistant Professor, School of Legal Studies, Cochin University of Science and Technology, Kerala.

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