Father’s consent not needed for child’s guardianship: SC
New Delhi: The Supreme Court on Monday ruled that there was no need for the father’s consent in giving guardianship of a child to an unwed mother as it held that the views of “uninvolved father” are not essential if the child is solely raised by the mother.
“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,” said a bench of Justice Vikramajit Sen and Justice Abhey Manohar Sapre in their judgment.
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, the court said.
Addressing the apprehension of amicus curiae Sidharth Luthra that such a position might be misused, the court said: “The sole factor for consideration before us, therefore, is the welfare of the minor child, regardless of the rights of the parents. We should not be misunderstood as having given our imprimatur to an attempt by one of the spouses to unilaterally seek custody of a child from the marriage behind the back of other spouse.”
“We see no harm or mischief in relaxing its (statutory requirements) to attain the intendment of the (Guardians and Wards) act.”
“Given that the term ‘parent’ is not defined in the act, we interpret it, 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” said Justice Sen pronouncing the judgment.
The uninvolved parent, the court said, is “not precluded from approaching the Guardian Court to quash, vary or modify its orders if the best interests of the child so indicate”.
The court further said that “implicit in the notion and width of welfare of the child, as one of its primary concomitants, is the right of the child to know the identity of his or her parents”.
This right has now found unquestionable recognition in the Convention on the Rights of the Child, which India has acceded to on November 11, 1992, and which pointedly makes mention, inter alia, to the Universal Declaration of Human Right, the court said.
Saying that it was “perturbed” that the mother has yet to obtain the birth certificate of the child even though he is his fifth year, the court said: “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 (mother) succeeding in her guardianship petition.” A
Allowing the petition by the mother – who happens to be a Christian and serving as a government official – the court said that the guardian court as well as the high court erred in the way they dealt with the matter.
“Having received knowledge of a situation that vitally affected the future and welfare of a child, the courts below could be seen as having been derelict in their duty in merely dismissing the petition without considering all the problems, complexities and complications concerning the child brought within its portals.”
The apex court verdict came on the appeal of the mother who had challenged the dismissal of her plea by Delhi High Court on August 8, 2011 after she refused to disclose the name and address of the father of her child so that he could be issued notice on her plea seeking guardianship of the child.
The mother had contended that the man stayed with her for a short duration and did not even know the existence of the child.
The apex court, while allowing her plea, directed the guardian court to recall its dismissal order and then consider the mother’s application for “guardianship expeditiously without requiring notice to be given to the putative father of the child”.