Supreme Court of India
Abc vs State(Nct Of Delhi) on 6 July, 2015Author: ………………………………..J.

Bench: Vikramajit Sen, Abhay Manohar Sapre

[Arising out of SLP (Civil) No. 28367 of 2011]

ABC … Appellant
The State (NCT of Delhi) … Respondent

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

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
(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

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

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

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.


New Delhi
July 06, 2015.


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