Supreme Court: Delivering a quintessential decision interpreting Section 11 of Guardians and Wards Act, 1890, involving the question that whether an unwed mother must specify the name of the putative father in her petition for her appointment as the guardian of her child, the Division Bench of Vikramjit Sen and A.M. Sapre, JJ., held that the appellant can apply for her child’s guardianship without giving notice under Section 11 of the 1890 Act, to the putative father of her child. The Court further stated that Section 11 is not directly applicable in cases where one of the parents petitions the Court for appointment, as guardian of the child. The Court further directed that if a single parent/unwed mother applies for the issuance of a Birth Certificate for her child, the authorities concerned may only require her to furnish an affidavit to this effect, and must issue the Birth Certificate.
The appellant had applied under Section 7 of the Guardians and Wards Act, 1890 before the Guardian Court, for declaring her to be the sole guardian of her son, and as per the requirements under Section 11 of the 1890 Act, published a notice of the petition in a daily newspaper. However, owing to the refusal of the appellant to name the father of the child, the Guardian Court and the Delhi High Court dismissed her application. Indu Malhotra, appearing for the appellant, contended that the mother does not want the child to suffer in future due to the controversies involving paternity; moreover as per Section 7 of the 1890 Act, the welfare and interest of the child is the paramount consideration, which would be only served if the appellant is appointed as the guardian. Noted counsel Siddharth Luthra assisted the Court as the Amicus Curiae.
The observations of the Court spanned not only around similar provisions concerning the guardianship/custody of an illegitimate child as found in various legislations, but also around the prevalent laws on the issue, as found in different legal systems of the world. The Court noted that a mother has the primary guardianship rights over her child. Keeping in mind the welfare of the child as envisaged under the 1890 Act, the Court observed that the child would be saved from social stigma, if the appellant is not compelled to disclose the identity of the father. In the opinion of the Court, Section 11 is applicable in those cases where the guardianship of a child is sought by a third party, thereby mandating the issue of notice to the child’s natural parents. The Court further observed that Section 11 being purely procedural, the requirements can be relaxed in order to achieve the object of the Statute i.e. interest of the child. ABC v. State (NCT of Delhi), 2015 SCC OnLine SC 609, decided on 06.07.2015