LexABC versus THE STATE (NCT OF DELHI)
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A B [2015] 8 S.C.R. 422 ABC v. THE STATE (NCT OF DELHI) (Civil Appeal No. 5003 of2015) JULY 06, 2015 [VIKRAMAJIT SEN AND ABHAY MANOHAR SAPRE, JJ.) Guardian and Wards Act, 1890 - ss. "7 and 11 - C . Application for appointment as guardian of her child by unwed Christian mother- Requirement of giving notice u/s. 11 to the child's putative father by the unwed mother- Held: There is no mandatory procedural requirement of notice to be served to the putative father in connection with a D guardianship or custody petition preferred by the natural mother of the child of whom she is the sole caregiver - S. 11 applies to a situation where guardianship of child is sought by a'third party, making it essential for the welfare of the child E being given in adoption to gamer the views of child's natural parents - Guardian Court to recall the dismissal order passed by it and consider the mother's application for guardianship expeditiously without requiring notice to be given to the putative fatherofthe child. F Allowing the appeal, the Court HELD: 1.1 The predominant legal thought in different civil and common law jurisdictions spanning the globe as well as in different statutes within India is to bestow G guardianship and related rights to the mother of a child born outside of wedlock. Avowedly, the mother is best suited to care for her offspring, so aptly and comprehensively conveyed in Hindi by the word 'mamta'. Furthermore, recognizing her maternity would obviate H 422 ABC v. THE STATE (NCT OF DELHI) 423 the necessity of determining paternity. In such situations, A where the father has not exhibited any concern for his offspring, giving him legal recognition would be an exercise in futility. The appellant has taken care to clarify that should her son's father evince any interest in his son, she would '"!Ot object to his participation in the B litigation, or in the event of its culmination, for the custody issue to be revisited. Although the Guardian Court needs no such concession, the mother's intent in insisting that the father should not be publically notified seems not to be unreasonable. [Para 9] [435-C-G] C 1.2 It is imperative thatthe rights of the mother must also be given due consideration. It was submitted that the appellant's fundamental right of privacy would be violated if she is forced to disclose the name and D particulars of the father of her child. Any responsible man would keep track of his offspring and be concerned for the welfare of the child he has brought into the world; this does not appear to be so in the instant case. Furthermore, Christian unwed mothers in India are E 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 F fathers. It would be apposite to underscore that the Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation. [Para 11] [436-C-F] .\ 1.3 The father's right to be involved in his child's life G may be taken away if Section 11 is read in such a manner that he is not given notice, but given his lack of involvement in the child's life, there is no reason to prioritize his rights over those of the mother or her child. H 424 SUPREME COURT REPORTS [2015] 8 S.C.R. A Additionally, given that the appellant has already issued notice to the public in general by way of a publication in a National Daily and has submitted an affidavit stating that her guardianship rights may be revoked, altered or amended if at any point the father of the child objects to B them, the rights, nay duty of the father have been more than adequately protected. In the instant case, there is no indication that the welfare of the child would be undermined if the appellant is not compelled to disclose C the identity of the father, or that Court notice is mandatory in the child's interest. On the contrary, this may well protect the child from social stigma and needless controversy. [Para 12,13] [436-G,H; 432-A-D] Laxmi Kant Pandey vs. Union of India 1985 (Supp) SCC D 701 :1985 Suppl. SCR 71 ;Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228: 1999 (1) SCR 669 - referred to. 1.4 As the intention of the Act is to protect the welfare of the child, the applicability of Section 11 would have to E be read accord
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