2015 Supreme(SC) 695

SUPREME COURT OF INDIA
VIKRAMAJIT SEN, ABHAY MANOHAR SAPRE, JJ.
ABC – Appellant
Versus
The State (NCT of Delhi) – Respondent
CIVIL APPEAL NO. …….. OF 2015 [Arising out of SLP (Civil) No. 28367 of 2011]
Decided On : 06-07-2015

IMPORTANT POINTS
Where the father has not exhibited any concern for his offspring, giving him legal recognition would be an exercise in futility.
In a secular country religion be distanced from law.
Section 11 of the Guardians and Wards Act, 1890 would not be directly applicable where one of the parents petitions the Court for appointment as guardian of her child.
There is no harm or mischief in relaxing a procedural provision.
After filing of guardianship petition the continues in curial curatorship until attaining majority.

Headnote:(a) Guardians and Wards Act, 1890 – Sections 7, 11, 19 – Guardianship to unwed mother – Mother is best suited to care for the child – Recognizing her maternity would obviate the necessity of determining paternity – Where the father has not exhibited any concern for his offspring, giving him legal recognition would be an exercise in futility – Unwed mother’s right to privacy would be violated if she is forced to disclose the name and particulars of the father of her child – No indication that welfare of the child would be undermined if identity of the father is not disclosed – Further, Court notice to father is not mandatory in the child’s interest – Not disclosing father’s identity may well protect the child from social stigma and needless controversy – a (Para 9, 11, 13)

       1985 (Supp) SCC 701; (1999) 2 SCC 228 – Relied upon

       G.R. No. 156343 – Referred

       (b) Administration of Justice – India being a secular country, it is a cardinal necessity that religion be distanced from law. (Para 10)

       (c) Guardians and Wards Act, 1890 – Section 11 – Father’s right to be involved in his child’s life – Should not be taken away – But in view of his lack of involvement there is no reason to prioritize his rights over those of the mother or her child – Moreover, his duty towards the child is adequately protected by mother’s undertaking that her guardianship rights may be revoked, altered or amended if at any point the father of the child objects to them. (Para 12)

       (d) Guardians and Wards Act, 1890 – Section 11 – Section 11 would not be directly applicable where one of the parents petitions the Court for appointment as guardian of her child – Section 11 applies where the guardianship of a child is sought by a third party – Section 11 is purely procedural – No harm or mischief I relaxing its requirements. (Para 15, 16)

       (e) Jurisprudence – The law is dynamic and is expected to diligently keep pace with time and the legal conundrums and enigmas it presents. (Para 19)

       (f) Birth Certificate – Requirement of name of father – Registering every birth is duty of the State – Hence held, if single mother applies for birth certificate for a child born of her womb, she would only be required to file an affidavit to that effect. (Para 19)

       (g) Guardians and Wards Act, 1890 – Section 7, 11, 19 – Guardianship petition/appeal – Court required to discharge their parens patriae jurisdiction – Concerned child ceases to be in the exclusive custody of the parents – It continues in curial curatorship until attaining majority – Merely dismissing the petition – Dereliction of duty. (Para 20)

       Facts of the case:

       The question in this case is 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.

       The Appellant, a Christian, 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, as required, filed an application under Section 7 of the Guardians and Wards Act, 1890 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.

       The Guardian Court, in terms of Section 11, directed her to reveal the name and whereabouts of the father and consequent to her refusal to do so, dismissed her guardianship application.

       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.

       Finding of the Court:

       Appeal deserves to be allowed.

       Result: Appeal allowed.