FAMILY LAW I INTERNAL ASSIGNMENT

FACULTY: PROF. JAISY GEORGE

PROF. S. PEDNEKAR
DATE OF SUBMISSION: 18TH AUGUST, 2015

ARSHITA SINGH
14010126440
SRUTHI DINESH
14010126447
DIVISION E (SEM III)
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ABC vs. the State (NCT of Delhi) (06.07.2015- SC)

1) NAME OF THE PARTIES:
Appellants: ABC
Vs.
Respondent: The State (NCT of Delhi)
2)

CITATION:
2015VII AD (S.C.) 389, 2015(7)SCALE483

3)

HON'BLE JUDGES/CORAM:
Vikramjit Sen and Abhay Manohar Sapre, JJ.

4) CASES REFERRED BY THE COURT:

Joey D. Briones v. Maricel P. Miguel et al, G.R. No. 156343; Laxmi Kant Pandey v. Union of
India MANU/SC/0080/1985: 1985 (Supp) SCC 701; Githa Hariharan v. Reserve Bank of India
MANU/SC/0117/1999: (1999) 2 SCC 228

5)

FACTS
The Appellant gave birth to a child and raised him without any assistance from the putative
father. With the desire of making her son her nominee in all her savings and other insurance
policies, she took steps in this direction, but was informed that she must either declare the name
of the father or get a guardianship/adoption certificate from the Court. She thereupon filed an
application under section 7 of Guardians and Wards Act, 1890 for declaring her the sole
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guardian of her son. Though the Appellant has published a notice of the petition in a daily
newspaper, but she was strongly averse to naming the father. Consequently, the Guardian Court
directed her to reveal the name and whereabouts of the father and consequent to her refusal to
do so, dismissed her guardianship application. On appeal, the High Court confirmed the order
of lower authority by holding that no case can be decided in the absence of a necessary party.
Hence, present appeal was preferred for appeal in the Supreme Court.

6) ISSUE INVOLVED:

Whether under section 11 of The Guardian and

Wards Act, 1890, it is imperative for an
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unwed mother to notify the putative father of

the child.

7)

DECISION OF THE COURT:

Delivering a quintessential decision interpreting Section 11 of Guardians and Wards Act, 1890,
involving the question that whether an unwed mother must specify the name of the putative
father in her petition for her appointment as the guardian of her child, the Division Bench of
Vikramjit Sen and A.M. Sapre, JJ., held that the appellant can apply for her childs guardianship
without giving notice under Section 11 of the 1890 Act, to the putative father of her child. The
Court further stated that Section 11 is not directly applicable in cases where one of the parents
petitions the Court for appointment, as guardian of the child. The Court further directed that if a
single parent/unwed mother apply for the issuance of a Birth Certificate for her child, the
authorities concerned may only require her to furnish an affidavit to this effect, and must issue
the Birth Certificate. The appellant had applied under Section 7 of the Guardians and Wards
Act, 1890 before the Guardian Court, for declaring her to be the sole guardian of her son, and as
per the requirements under Section 11 of the 1890 Act, published a notice of the petition in a
daily newspaper. However, owing to the refusal of the appellant to name the father of the child,
the Guardian Court and the Delhi High Court dismissed her application. Moreover as per
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Section 7 of the 1890 Act, the welfare and interest of the child is the paramount consideration,
which would be only served if the appellant is appointed as the guardian. The observations of
the Court spanned not only around similar provisions concerning the guardianship/custody of an
illegitimate child as found in various legislations, but also around the prevalent laws on the
issue, as found in different legal systems of the world. The Court noted that a mother has the
primary guardianship rights over her child. Keeping in mind the welfare of the child as
envisaged under the 1890 Act, the Court observed that the child would be saved from social
stigma, if the appellant is not compelled to disclose the identity of the father. In the opinion of
the Court, Section 11 is applicable in those cases where the guardianship of a child is sought by
a third party, thereby mandating the issue of notice to the childs natural parents. The Court
further observed that Section 11 being purely procedural, the requirements can be relaxed in
order to achieve the object of the Statute i.e. interest of the child.

8) ANALYSIS
Section 11 of the Guardians and Wards Act, 1890 is purely procedural.
The act did not define the term parent, and it was interpreted in the case of illegitimate
children 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 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.
In the face of the express terms of the statute, the Court had in Laxmi Kant Pandey directed that
notice should not be sent to the parents, as that was likely to jeopardize the future and interest of
the child who was being adopted. The sole factor for consideration, therefore, is the welfare of
the minor child, regardless of the rights of the parents.
The researchers also found that, the learned bench went beyond the contented provisions and
provided with a remedy which might arise in the coming future of birth certificates to be
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provided to the child in cases of single mothers, in regard to the rising cases and situations of
the society. They declared the necessity of either of both the parents, whosoever may be the sole
caregiver of the child. The learned bench stated that:It is seen that the Appellant has not obtained a Birth Certificate for her son who is nearly five
years old. This is bound to create problems for the child in the future. In this regard, the
Appellant has not sought any relief either before us or before any of the Courts below. It is a
misplaced assumption in the law as it is presently perceived that the issuance of a Birth
Certificate would be a logical corollary to the Appellant succeeding in her guardianship petition.
It may be recalled that owing to curial fiat, it is no longer necessary to state the name of the
father in applications seeking admission of children to school, as well as for obtaining a
passport for a minor child. However, in both these cases, it may still remain necessary to furnish
a Birth Certificate. The law is dynamic and is expected to diligently keep pace with time and the
legal conundrums and enigmas it presents. There is no gainsaying that the identity of the mother
is never in doubt. Accordingly, 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 her to furnish an affidavit to this effect, and must thereupon issue the Birth
Certificate, unless there is a Court direction to the contrary1.

1 MANU/SC/0718/2015
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9) JUDGEMENT APPRAISAL
The appeal in the high court was dismissed on the basis that the application cannot be
entertained unless she discloses the name and address of the father of her child, thereby to
enable the Court to issue process to him. The High Court dismissed the case on the pretext of
even assuming that there is no marriage, the natural father would also have an interest in
the welfare/custody of the child and also the childs guardianship.
It is a fundamental principle of law that no case can be decided in the absence of a necessary
party. Non-joinder of a necessary party is fatal to a case. Surely, the father is a necessary party
to the case and the petitioner/appellant cannot be allowed to get a decision in her favor merely
by impleading the State as the respondent i.e., without making the natural father as a respondent
in the case and serve him. Aggrieved by the HCs dismissal of her appeal without going into the
merits of the case, the woman approached the Supreme Court. The appeal was then lodged in
the Supreme Court.
Contention of Section 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. The impugned judgment is, therefore, in accordance with the Act and should be
upheld. Supreme Court then concluded that the above indicates that priority, preference and preeminence is given to the mother over the father of the concerned child.
In this case, the learned judges of the Supreme Court have delivered a remarkable judgement
interpreting the section 11 of the Guardians and Wards Act, 1820 widening scope of the term
parent by properly defining it and thereby giving an unwed mother the sole guardianship in
absence of the putative father. The researchers are in conforming to the judgement delivered by
the Bench.
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The learned Bench, going beyond the four corners of the contents of the case had also declared
a very important provision regarding the issuing of Birth Certificates to the children of
single/unwed mothers. The Bench issued that, no more is there a necessity for both parents to be
present for the issuance of the Certificate, as the earlier rule stated.
But with the modernizing society, and the realization that many problems and cases might arise
with the fast going adaption of the citizen to live in relations, to avoid the misery of
single/unwed mothers in raising their child alone, the court delivered this judgement. This eases
the situation of such women who might be coerced into involving the putative father to obtain
many of the documents of the child such as passport, birth certificates, school documents, etc.
Thus, the learned Bench upheld the concept of Rule of Law and Justice, Equity and Good
Conscience.

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10) CONCLUSION

This case took a leap from the patriarchal Indian society and took a holistic step towards the
welfare of the child above all, declaring a guardian as either or one of both parents, irrespective
of the parent being a single mother, if she is the sole caregiver to the child and it is not
necessary to be the living father only. Irrespective of the prevalent personal laws which gives
different rights to the mother of the child and has especially suppressed many of the rights of
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the mother, this judgement has after all moved on with the advancements of the society and
embraced the idea of a single mother being able and capable enough to take care of the welfare
of her child without the involvement of the putative father.
Moreover, it is unnecessary to include an uninvolved father in the welfare of the child when he
is least interested and has turned away from the basic duty of being a father.
With this judgement, the court has ordered the non-inclusion of the uninvolved putative father
from all important documents of the child like, passports, birth certificates, and school
documents, etc.

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