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Thursday, July 9, 2015

whether it is imperative for an unwed mother to specifically notify the putative father of the child whom she has given birth to of her petition for appointment as the guardian of her child. The common perception would be that three competing legal interests would arise, namely, of the mother and the father and the child. We think that it is only the last one which is conclusive, since the parents in actuality have only legal obligations. A child, as has been ubiquitously articulated in different legal forums, is not a chattel or a ball to be shuttled or shunted from one parent to the other. The Court exercises paren patrae jurisdiction in custody or guardianship wrangles; it steps in to secure the welfare of the hapless child of two adults whose personal differences and animosity has taken precedence over the future of their child.

                                                                  REPORTABLE
                        IN THE SUPRME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. …….. OF 2015
               [Arising out of SLP (Civil) No. 28367 of 2011]

ABC                                                …     Appellant
                                   Versus
The State (NCT of Delhi)                                 …       Respondent
                               J U D G M E N T
VIKRAMAJIT SEN, J.


1.    A legal nodus  of  seminal  significance  and  of  prosaic  procedural
origination presents itself before  us.  The  conundrum  is  whether  it  is
imperative for an unwed mother to specifically notify  the  putative  father
of the child whom she has given birth to of her petition for appointment  as
the guardian of her  child.  The  common  perception  would  be  that  three
competing legal interests would arise, namely, of the mother and the  father
and the child.  We think that it is only the last one which  is  conclusive,
since the parents in actuality have only legal  obligations.   A  child,  as
has been ubiquitously articulated  in  different  legal  forums,  is  not  a
chattel or a ball to be shuttled or shunted from one parent  to  the  other.
The Court exercises paren patrae jurisdiction  in  custody  or  guardianship
wrangles; it steps in to secure the welfare of  the  hapless  child  of  two
adults whose personal differences and animosity has  taken  precedence  over
the future of their child.

2.    Leave granted.  This Appeal is directed  against  the  Judgment  dated
8.8.2011 delivered by the High Court  of  Delhi,  which  has  dismissed  the
First Appeal of the Appellant, who is an  unwed  mother,  holding  that  her
guardianship application cannot be  entertained  unless  she  discloses  the
name and address of the father of her child, thereby enabling the  Court  to
issue process to him.  As per the  Appellant’s  request,  her  identity  and
personal details as well as those of her son have not been revealed  herein.


3.    The Appellant, who adheres to the Christian faith, is  well  educated,
gainfully employed and financially secure.  She gave birth  to  her  son  in
2010, and has  subsequently  raised  him  without  any  assistance  from  or
involvement of his putative father. Desirous 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 the  Guardians  and  Wards
Act, 1890 (the Act) before the Guardian Court for  declaring  her  the  sole
guardian of her son. Section 11 of the Act requires a notice to be  sent  to
the parents of the child before a guardian is appointed.  The Appellant  has
published a notice of the petition in a daily newspaper, namely  Vir  Arjun,
Delhi Edition but is strongly averse to naming the father.   She  has  filed
an affidavit stating that if at any time in the future  the  father  of  her
son raises any objections  regarding  his  guardianship,  the  same  may  be
revoked or altered as the  situation  may  require.  However,  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 19.4.2011.   The Appellant’s appeal before the High Court  was  dismissed
in limine, on the reasoning that her allegation that she is a single  mother
could only be decided after notice is issued to the father; that  a  natural
father could have an interest in the welfare and custody of his  child  even
if there is no marriage; and that no case can be decided in the  absence  of
a necessary party.

4.    Ms. Indu Malhotra, learned  Senior  Counsel  for  the  Appellant,  has
vehemently argued before us that the Appellant does not want the  future  of
her child to be marred by any controversy  regarding  his  paternity,  which
would indubitably result should the father refuse to acknowledge  the  child
as his own.
This is a brooding  reality  as  the  father  is  already  married  and  any
publicity as to a declaration of his fathering a child out of wedlock  would
have pernicious repercussions to his present family.  There would be  severe
social complications for her and her child.  As per Section 7  of  the  Act,
the interest of the minor is the only relevant factor for  appointing  of  a
guardian, and the rights of the mother and father are  subservient  thereto.
In this scenario, the  interest  of  the  child  would  be  best  served  by
immediately appointing the Appellant as the guardian.   Furthermore,  it  is
also pressed to the fore that her own fundamental right to privacy  will  be
violated if she is compelled to disclose the name  and  particulars  of  the
father of her child.   Ms. Malhotra has painstakingly  argued  this  Appeal,
fully  cognizant  that  the  question  that  arises  is  of   far   reaching
dimensions.  It is this very feature that convinced us of the expediency  of
appointing amicus curiae, and  Mr.  Sidharth  Luthra  has  discharged  these
onerous  duties  zealously,  for  which  we  must  immediately  record   our
indebtedness.

5.    It would be pertinent to succinctly consider the Guardians  and  Wards
Act, 1890. The Act, which applies to Christians  in  India,  lays  down  the
procedure by which guardians are  to  be  appointed  by  the  Jurisdictional
Court. Sections 7, 11 and 19 deserve extraction, for facility of  reference.

“7. Power of the court to make order as to guardianship
(1) Where the court is satisfied that it is for the welfare of a minor  that
an order should be made-
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian,
the court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian  who
has not been appointed by will or other instrument or appointed or  declared
by the court.
(3) Where a guardian has been appointed  by  will  or  other  instrument  or
appointed or declared by the court, an order under this  section  appointing
or declaring another person to be guardian in his stead shall  not  be  made
until the powers of the guardian appointed or  declared  as  aforesaid  have
ceased under the provisions of this Act.”

The details of the form of application are contained in Section 10  and  the
procedure that applies  to  a  guardianship  application  is  prescribed  in
Section 11.
11. Procedure on admission of application
(1) If the Court is satisfied that there is ground  for  proceeding  on  the
application, it shall fix a day for the hearing thereof,  and  cause  notice
of the application and of the date fixed for the hearing-
(a)  to  be  served  in  the  manner  directed  in   the   Code   of   Civil
Procedure,1882(14 of 1882)11 on-
(i) the parents of the minor if they are residing  in  any  State  to  which
this Act extends;
(ii) the person, if any, named in the  petition  or  letter  as  having  the
custody or possession of the person or property of the minor;
(iii) the person proposed in the application or letter to  be  appointed  or
declared guardian, unless that person is himself the applicant; and
(iv) any other person to whom, in the opinion of the  court  special  notice
of the applicant should be given; and
(b) to be posted on some conspicuous part of  the  court-house  and  of  the
residence of the minor, and  otherwise  published  in  such  manner  as  the
court, subject to any rules made by the High Court under  this  Act,  thinks
fit.
(2) The State Government may, by general  or  special  order,  require  that
when any part of the property described in a petition under section 10, sub-
section  (1),  is  land  of  which  a  Court  of  Wards  could  assume   the
superintendence, the court shall also cause a  notice  as  aforesaid  to  be
served on the Collector in whose district the minor ordinarily  resides  and
on every Collector in whose district any portion of  the  land  is  situate,
and the Collector may cause the notice to be  published  in  any  manner  he
deems fit.
(3) No charge shall be made by the court or the Collector  for  the  service
or publication of any notice served or published under sub-section (2).

Section 19  is  of  significance,  even  though  the  infant  son  does  not
independently own or possess any property, in that it  specifically  alludes
to the father of a minor.  It reads thus:
19. Guardian not to be appointed by the court in certain cases
Nothing in this Chapter shall authorise the court to appoint  or  declare  a
guardian  of  the  property  of  a  minor  whose  property  is   under   the
superintendence of a Court of Wards or to appoint or declare a  guardian  of
the person-
(a) of a minor who is a married female and whose  husband  is  not,  in  the
opinion of court, unfit to be guardian of her person; or
(b) of a minor whose father is living and is  not  in  the  opinion  of  the
court, unfit to be guardian of the person of the minor; or
(c) of a minor whose property is under the superintendence  of  a  Court  of
Wards competent to appoint a guardian of the person of the minor.

We  must  immediately  underscore  the  difference  in  nomenclature,   i.e.
‘parents’ in Section 11 and ‘father’ in Section 19, which we think  will  be
perilous to ignore.

6.    It is contended on behalf of the State  that  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. It seems  to  us
that this interpretation  does  not  impart  comprehensive  significance  to
Section  7,  which  is  the  quintessence  of  the  Act.    However,  before
discussing the intendment  and  interpretation  of  the  Act,  it  would  be
helpful to appreciate the manner in which the  same  issue  has  been  dealt
with in other statutes and  spanning  different  legal  systems  across  the
globe.

7.    Section 6(b) of the Hindu Minority and Guardianship  Act,  1956  makes
specific provisions  with  respect  to  natural  guardians  of  illegitimate
children, and in this regard gives primacy to the mother  over  the  father.
Mohammedan law accords the custody of illegitimate children  to  the  mother
and her relations. The law follows the principle that  the  maternity  of  a
child is established in the woman who gives birth  to  it,  irrespective  of
the lawfulness of her connection with the begetter.  However,  paternity  is
inherently nebulous especially where  the  child  is  not  an  offspring  of
marriage.  Furthermore, as per Section  8  of  the  Indian  Succession  Act,
1925, which applies to Christians in India, the domicile  of  origin  of  an
illegitimate child is in the country in which at the time of his  birth  his
mother is domiciled. This  indicates  that  priority,  preference  and  pre-
eminence is given to the mother over the father of the concerned child.

8.     In the United Kingdom,  the  Children  Act  1989  allocates  parental
responsibility, which includes all rights, duties, powers,  responsibilities
and authority of a parent over the child and his/her property. According  to
Section 2(2) of that Act, parental custody of a child born of unwed  parents
is with the mother in all cases, and additionally with the  father  provided
he has acquired responsibility in accordance  with  the  provisions  of  the
Act. To acquire responsibility, he would have to  register  as  the  child’s
father, execute a parental  responsibility  agreement  with  the  mother  or
obtain a Court order giving him  parental  responsibility  over  the  child.
In  the  U.S.A.,  each  State  has  different   child   custody   laws   but
predominantly the mother has full legal and physical custody from  the  time
the child is born. Unless an  unmarried  father  establishes  his  paternity
over the child it is generally difficult for him to defeat or overwhelm  the
preferential claims of the mother to  the  custody.   However,  some  States
assume that both parents who sign the child’s Birth Certificate  have  joint
custody, regardless of whether they are married.  In Ireland,  Section  6(4)
of the Guardianship of Infants  Act,  1964  ordains  -  “The  mother  of  an
illegitimate infant shall be guardian of  the  infant.”  Unless  the  mother
agrees to sign a statutory declaration, an unmarried father  must  apply  to
the Court in order to become a legal guardian of his child.  Article 176  of
the Family Code of the Philippines explicitly  provides  that  “illegitimate
children shall use the surname and shall be under the parental authority  of
their mother, and shall be entitled  to  support  in  conformity  with  this
Code.”  This position  obtains  regardless  of  whether  the  father  admits
paternity.  In 2004, the  Supreme  Court  of  the  Philippines  in  Joey  D.
Briones vs.  Maricel P.  Miguel  et  al,  G.R.  No.  156343,  held  that  an
illegitimate child is under the sole parental authority of the mother.   The
law in New Zealand, as laid out in Section 17 of the Care of  Children  Act,
2004, is that the mother of a child is the  sole  guardian  if  she  is  not
married to, or in civil union with, or living as a  de  facto  partner  with
the father of the child at any time during the  period  beginning  with  the
conception of the child and ending with the birth of the child.    In  South
Africa,  according  to  the  Children’s  Act  No.  38  of   2005,   parental
responsibility includes the responsibility and the right  (a)  to  care  for
the child; (b) to maintain contact with the child; (c) to  act  as  guardian
of the child; and (d) to contribute to the maintenance  of  the  child.  The
biological mother of  a  child,  whether  married  or  unmarried,  has  full
parental responsibilities and rights in respect of  the  child.  The  father
has full parental responsibility if he is married to the mother,  or  if  he
was married to her at the time of the child’s conception, or at the time  of
the child’s birth or any time in between, or if at the time of  the  child’s
birth he was living with the mother in a permanent life-partnership,  or  if
he (i) consents to  be  identified  or  successfully  applies  in  terms  of
Section 26 to be identified as the child’s father or pays damages  in  terms
of customary law; (ii)  contributes  or  has  attempted  in  good  faith  to
contribute to the child’s upbringing for  a  reasonable  period;  and  (iii)
contributes or has attempted in good faith to  contribute  towards  expenses
in connection with the maintenance of the child  for  a  reasonable  period.
This conspectus indicates that the preponderant  position  that  it  is  the
unwed mother who possesses primary custodial and  guardianship  rights  with
regard to her children and that the father is not conferred  with  an  equal
position merely by virtue of his having fathered the  child.  This  analysis
should assist us in a meaningful, dynamic  and  enduring  interpretation  of
the law as it exists in India.

9.    It is thus abundantly clear that  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  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  the  necessity  of  determining
paternity.  In situations such this, where the father has not exhibited  any
concern for  his  offspring,  giving  him  legal  recognition  would  be  an
exercise in futility.  In today’s  society,  where  women  are  increasingly
choosing to raise their children alone, we see no  purpose  in  imposing  an
unwilling and unconcerned father on an otherwise viable family nucleus.   It
seems  to  us  that  a  man  who  has  chosen  to  forsake  his  duties  and
responsibilities is not a necessary constituent for  the  wellbeing  of  the
child.  The Appellant has taken  care  to  clarify  that  should  her  son’s
father evince any  interest  in  his  son,  she  would  not  object  to  his
participation in the 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 to us not to be unreasonable.

10.   We feel it necessary to add that the purpose of our  analysis  of  the
law in other countries was to arrive at a holistic understanding of  what  a
variety of jurisdictions felt would be in the best interest  of  the  child.
It was not, as learned  Counsel  suggested,  to  understand  the  tenets  of
Christian law.  India is a secular nation and it  is  a  cardinal  necessity
that religion be distanced from law. Therefore, the task  before  us  is  to
interpret the law of the land, not in light of the tenets  of  the  parties’
religion but in keeping with legislative intent and prevailing case law.

11.   It is imperative that the rights of the mother must also be given  due
consideration. As Ms. Malhotra, learned Senior Counsel  for  the  Appellant,
has eloquently argued, the Appellant’s fundamental right  of  privacy  would
be violated if she is forced to disclose the name  and  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 present case, on  a  perusal  of
the pleading  as  they  presently  portray.   Furthermore,  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.  It would be apposite for  us  to  underscore  that
our Directive Principles envision the existence of  a  uniform  civil  code,
but this remains an unaddressed constitutional expectation.

12.   We recognize that the father’s right to be  involved  in  his  child’s
life 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,  we
find no reason to prioritize his rights over those  of  the  mother  or  her
child. 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  them,
the  rights,  nay  duty  of  the  father  have  been  more  than  adequately
protected.

13.   The issue at hand is the interpretation of Section 11 of the  Act.  As
the intention of the Act is  to  protect  the  welfare  of  the  child,  the
applicability of Section 11 would have to be  read  accordingly.   In  Laxmi
Kant Pandey vs. Union of India 1985 (Supp) SCC 701,  this  Court  prohibited
notice of guardianship applications from  being  issued  to  the  biological
parents of a child in order  to  prevent  them  from  tracing  the  adoptive
parents and the  child.  Although  the  Guardians  and  Wards  Act  was  not
directly attracted  in  that  case,  nevertheless  it  is  important  as  it
reiterates that the welfare of the child  takes  priority  above  all  else,
including the rights of the parents.  In the present case  we  do  not  find
any indication that the welfare of the child  would  be  undermined  if  the
Appellant is not compelled to disclose the identity of the father,  or  that
Court notice is mandatory in the child’s  interest.   On  the  contrary,  we
find that this may well protect the child from social  stigma  and  needless
controversy.

14.   Even in the absence of Laxmi Kant Pandey, we are not like mariners  in
unchartered troubled seas. The observations of a three Judge Bench  of  this
Court in Githa Hariharan v. Reserve Bank of  India  (1999)  2  SCC  228  are
readily recollected.   The RBI had refused to accept an  application  for  a
fixed deposit in the name of the child signed solely by the mother.  In  the
context of Section 6 of the Hindu Minority and Guardianship Act as  well  as
Section 19 of the Guardians and Wards Act, this  Court  had  clarified  that
“in all situations where the father is not in actual charge of  the  affairs
of the minor either because of his indifference or because of  an  agreement
between him and the mother of the minor (oral or written) and the  minor  is
in the exclusive care and custody of the mother or the father for any  other
reason is unable to take care of the minor because of  his  physical  and/or
mental incapacity, the mother can act as natural guardian of the  minor  and
all her actions would be valid even during the life time of the  father  who
would be deemed to be “absent” for the purposes of Section 6(a) of  the  HMG
Act and Section 19(b) of the GW Act.”  This Court  has  construed  the  word
‘after’ in Section 6(a) of  the  Hindu  Minority  and  Guardianship  Act  as
meaning “in the absence of – be it temporary or otherwise  or  total  apathy
of the father towards the child or even inability of the  father  by  reason
of ailment or  otherwise.”  Thus  this  Court  interpreted  the  legislation
before it in a manner conducive to granting the mother,  who  was  the  only
involved parent, guardianship rights over the child.

15.    In  a  case  where  one  of  the  parents  petitions  the  Court  for
appointment as guardian of her  child,  we  think  that  the  provisions  of
Section 11 would not be directly applicable.  It seems to  us  that  Section
11 applies to a situation where the guardianship of a child is sought  by  a
third party, thereby making it essential for the welfare of the child  being
given in adoption to garner the  views  of  child’s  natural  parents.   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.  We may reiterate that even  in  the  face  of  the  express
terms of the statute, this 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 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.  The apprehensions of Mr. Luthra,  learned  amicus
curiae, are accordingly addressed.

16.   Section 11 is purely  procedural;  we  see  no  harm  or  mischief  in
relaxing its requirements to attain the intendment of the 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.   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.

17.   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
11th November, 1992.   This Convention pointedly makes mention, inter  alia,
to the Universal Declaration of Human Rights.   For  facility  of  reference
the salient provisions are reproduced -

Article 1

For the purposes of the present Convention, a child means every human  being
below the age of eighteen years unless  under  the  law  applicable  to  the
child, majority is attained earlier.

Article 3


1. In all actions concerning  children,  whether  undertaken  by  public  or
private  social  welfare  institutions,  courts   of   law,   administrative
authorities or legislative bodies, the best interests of the child shall  be
a primary consideration.


2. States Parties undertake to ensure the child such protection and care  as
is necessary for his or her well-being, taking into account the  rights  and
duties of his or her parents, legal guardians, or other individuals  legally
responsible for him or her, and, to this end,  shall  take  all  appropriate
legislative and administrative measures.


3.  States  Parties  shall  ensure  that  the  institutions,  services   and
facilities responsible for the care or protection of children shall  conform
with the standards established by  competent  authorities,  particularly  in
the areas of safety, health, in the number and suitability of  their  staff,
as well as competent supervision.


Article 7

1. The child shall be registered immediately after birth and shall have  the
right from birth to a name, the right to acquire a nationality and,  as  far
as possible, the right to know and be cared for by his or her parents.

Article 9

1. States Parties shall ensure that a child shall not be separated from  his
or her  parents  against  their  will,  except  when  competent  authorities
subject to judicial review determine, in accordance with applicable law  and
procedures, that such separation is necessary for the best interests of  the
child. Such determination may be necessary in a particular case such as  one
involving abuse or neglect of the child by the parents,  or  one  where  the
parents are living separately and a decision must be made as to the  child's
place of residence.

2. In any proceedings pursuant to paragraph 1 of the  present  article,  all
interested parties shall be given  an  opportunity  to  participate  in  the
proceedings and make their views known.

3. States Parties shall respect the right of  the  child  who  is  separated
from one or both parents to maintain personal relations and  direct  contact
with both parents on a regular basis,  except  if  it  is  contrary  to  the
child's best interests.

Article 12

1. States Parties shall assure to the child who is capable  of  forming  his
or her own views the right to express those  views  freely  in  all  matters
affecting the child, the views of  the  child  being  given  due  weight  in
accordance with the age and maturity of the child.

2. For  this  purpose,  the  child  shall  in  particular  be  provided  the
opportunity to be heard  in  any  judicial  and  administrative  proceedings
affecting the child, either directly, or  through  a  representative  or  an
appropriate body, in a  manner  consistent  with  the  procedural  rules  of
national law.

Article 18

1. States Parties shall use their best efforts to ensure recognition of  the
principle that both parents have common responsibilities for the  upbringing
and development of the  child.  Parents  or,  as  the  case  may  be,  legal
guardians,  have  the  primary  responsibility  for   the   upbringing   and
development of the child. The best interests of  the  child  will  be  their
basic concern.

Article 21

States Parties that recognize and/or permit the  system  of  adoption  shall
ensure that  the  best  interests  of  the  child  shall  be  the  paramount
consideration and they shall:

(a) Ensure that the adoption of a child  is  authorized  only  by  competent
authorities who determine, in accordance with applicable law and  procedures
and on the basis  of  all  pertinent  and  reliable  information,  that  the
adoption is permissible in view of the child's  status  concerning  parents,
relatives and legal guardians and that, if required, the  persons  concerned
have given their informed consent to the  adoption  on  the  basis  of  such
counselling as may be necessary;

 Article 27

2. The parent(s) or others  responsible  for  the  child  have  the  primary
responsibility to secure, within their abilities and  financial  capacities,
the conditions of living necessary for the child's development.

4. States  Parties  shall  take  all  appropriate  measures  to  secure  the
recovery of maintenance for the child from  the  parents  or  other  persons
having financial responsibility for the child, both within the  State  Party
and  from  abroad.  In  particular,  where  the  person   having   financial
responsibility for the child lives in a State different  from  that  of  the
child,  States  Parties  shall  promote  the  accession   to   international
agreements or the conclusion of such agreements, as well as  the  making  of
other appropriate arrangements.

18.   In Laxmi Kant Pandey, this Court duly  noted  the  provisions  of  the
Convention on the Rights of  the  Child,  but  in  the  general  context  of
adoption of children and, in particular, regarding the necessity to  involve
the natural parents  in  the  consequent  guardianship/custody  proceedings.
The provisions of the Convention which we have  extracted  indeed  reiterate
the settled legal position that the welfare of the  child  is  of  paramount
consideration vis a vis the perceived rights of parents not only so  far  as
the law in India is  concerned,  but  preponderantly  in  all  jurisdictions
across the globe.   We are mindful of the fact that  we  are  presently  not
confronted with a custody  conflict  and,  therefore,  there  is  no  reason
whatsoever to even contemplate the competence or otherwise of the  Appellant
as custodian of the interests and welfare of her child.   However, we  would
be loathe to lose perspective of our  parens  patriae  obligations,  and  in
that regard we need to ensure that the child’s right to  know  the  identity
of his parents is not  vitiated,  undermined,  compromised  or  jeopardised.
In order to secure  and  safeguard  this  right,  we  have  interviewed  the
Appellant and impressed upon her the  need  to  disclose  the  name  of  the
father to her son. She has disclosed his name, along with  some  particulars
to us; she states that she has  no  further  information  about  him.  These
particulars have been placed in an envelope and  duly  sealed,  and  may  be
read only pursuant to a specific direction of this Court.

19.   We are greatly perturbed by  the  fact  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 contrary.   Trite though  it  is,  yet  we  emphasise
that it is the responsibility  of  the  State  to  ensure  that  no  citizen
suffers any inconvenience or disadvantage merely because  the  parents  fail
or neglect to register the birth.  Nay, it is the duty of the State to  take
requisite steps for recording every birth of every citizen.  To  remove  any
possible  doubt,  the  direction  pertaining  to  issuance  of   the   Birth
Certificate is  intendedly  not  restricted  to  the  circumstances  or  the
parties before us.

20.   We think it necessary to also underscore the fact  that  the  Guardian
Court as well as the High Court which was in seisin of the Appeal ought  not
to have lost sight of the fact that they had been called upon  to  discharge
their parens patriae jurisdiction.  Upon a guardianship petition being  laid
before the Court, the concerned child ceases to be in the exclusive  custody
of the parents; thereafter, until the  attainment  of  majority,  the  child
continues in curial curatorship.   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.

21.   The Appeal is therefore allowed.  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.


………………………………..J.
(VIKRAMAJIT SEN)



                                                            ………………………………..J.
                                                       (ABHAY MANOHAR SAPRE)
New Delhi
July 06, 2015.

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