The hard questions that progressive verdict on unwed mothers leaves unanswered

While such a woman can now be the sole guardian of her child without having to reveal the father's name, her child will still carry the legal stigma of being 'illegitimate'.

The Supreme Court pronounced a judgement on July 6 that is getting some attention. It was in response to an appeal, by an unwed mother of a five-year-old son, against judgements from two lower courts.

In making her son the nominee of her various bank accounts and insurance policies after he was born, she found that she had to either declare his father’s name or apply for a guardianship certificate. In other words, being his natural mother wasn’t enough for these institutions; she had to get a court to declare her his sole guardian.

She applied for such a declaration under an 1890 law, the Guardians and Wards Act. Now Section 11 of the Act says that before pronouncing on a guardianship application, the Guardian Court must serve notice of the application on both parents of the child. In this case, that meant the unwed mother would have to reveal the name of the father.

For her own reasons, she did not want to do this. She filed an affidavit saying that if the court did pronounce her the child’s guardian and the unnamed father later objected, the court would be welcome to revoke her guardianship. This did not help. The Guardian Court demanded that she reveal the father’s name. When she chose not to, it rejected her application in April 2011.

The battle continues

Naturally, the story did not end there. The mother approached the Delhi High Court in appeal against this rejection. Just four months later, she drew a blank there as well. If she claimed to be a single mother, the court observed, that claim had to be tested by having the father come forward. After all, the court observed, he might have an interest in what happens to the child. With these observations, the court dismissed her appeal.

In all this focus on Section 11 of Guardians and Wards Act, Section 7 seems to have been overlooked. That says: “Where the court is satisfied that it is for the welfare of a minor that an order should be made [to declare a guardian], the court may make an order accordingly.” That is, the primary consideration is the child’s welfare, full stop. All else, such as informing the father, is secondary. The intent of Section 7, which is to place the interests of the child at the centre of any such deliberation, could not be clearer.

On appeal, the Supreme Court referred to Section 7 and overturned the lower courts’ rulings. Justice Vikramjit Sen’s judgement ends with this terse order: “The Guardian Court is directed to recall the dismissal order passed by it and thereafter consider the Appellant’s application for guardianship expeditiously without requiring notice to be given to the putative father of the child.”

If this looks like a happy ending for the child and his mother, we should thank the Supreme Court for injecting some simple common sense into the deliberations in this case.

Even so, there remain many prickly issues.

For one: the Supreme Court’s judgement repeatedly uses the word “illegitimate” for children like this one, of unwed parents. Let’s ask: Why is there a stigma attached to having a child outside a marriage at all? And why does the stigma apply to the child? It should be enough to refer to the mother’s single status – that is, after all, the basis for this entire case. Why hold on to the perverse idea that her child, merely by being born, has broken the law?

Gender bias

For another, the language in our laws is itself riddled with male references and clear gender biases. The same Section 11 of the Guardians and Wards Act, or GAWA for short, to take one example, says that notice should be served on the person who is intended to be the child’s guardian, ”unless that person is himself the applicant”. If taken literally, the word “himself” itself excludes the applicant in this case, a mother. Section 10 has another example. If the minor in the guardianship application is female, the application must state “whether she is married, and if so, the name and age of her husband.” Why so, and if so, why not a similar requirement for a male minor?

Finally, the applicant in this case is Christian. This prompted the Supreme Court to note that “Christian unwed mothers in India are 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 fathers.”

This is a reference to personal laws in this country that differ from religion to religion when it comes to issues of inheritance, marriage, divorce, guardianship and adoption. This is also a reminder – which Justice Sen mentions as well – of the old and frequent demand for a uniform civil code in this country.

Yet it is also a reminder of how difficult it is to formulate a uniform civil code out of the intricacies of our personal laws, as many people who have tried to do so have found. Take just this one case. In suggesting a disadvantage for Christian unwed mothers, Justice Sen relied on GAWA and the Hindu Minority and Guardianship Act, 1956.

The challenges

In Section 6 of the latter Act, we find that if the minor concerned is “an illegitimate boy or an illegitimate unmarried girl” (note “illegitimate” again), the guardian is, indeed, automatically the mother. But if the parents are married, the father is automatically the guardian. If the minor is a married girl, it’s the husband. (Christians, of course, are governed by the different provisions of GAWA.)

Apart from the evident gender bias here, spare a thought for the task of reconciling all such differences – and this is just a small taste – into a uniform civil code. A fuller account of the conundrums that such a code will have to resolve appears in an article I wrote ten years ago.

Plenty of tough questions. Who will attempt answers?

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