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In the Name of the Mother

The Supreme Court allows an unwed mother to be the sole legal guardian of her child.

The Supreme Court’s recent ruling giving an unwed mother the sole legal guardianship of her child without requiring the father’s permission has rightly been described as a milestone judgment. Hitherto the father’s involvement was legally necessary in any petition that sought to have the mother as the sole legal guardian and it was this aspect that a single mother had challenged first in a lower court, then in the Delhi High Court and finally in the apex court in 2011. However, this is not the first time that the higher courts have gone against the grain of patriarchal and prejudiced perceptions and practices against women (though they have been guilty of some regressive pronouncements too). The important question is how far these rulings will percolate and actually force changes in bureaucratic requirements, and then in social views. The ruling also has multilayered aspects that go beyond affirming the obvious rights of the mother.

Most single mothers in India face harassment when applying for documentation, an aspect that is crucial to daily life in this country starting from birth certificates and school admissions, to applications for passports and other such documents. Most of the agencies involved insist on the father’s name being mentioned or an affidavit giving his “permission.” In this present case (ABC vs State (NCT of Delhi)), the petitioner had wanted to make her five-year-old son her nominee in her savings deposits and insurance policies but was told that as a Christian she was governed by the Guardians and Wards Act, 1890 and would require the father’s approval before she was granted sole legal guardianship. Her contention that the man had lived with her for barely two months and was not even aware of the son’s existence did not cut ice with the lower courts. The Supreme Court has said that the child’s welfare (which is paramount) would be best served by having the mother as the guardian and that “her own fundamental right to privacy” would be violated if forced to disclose particulars of the father. The ruling thus also takes into account both the rights of “illegitimate” children and the unwed mother’s right to privacy.

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