Mon. Jan 25th, 2021

Unwed mothers are not required to give notice under Section 11 of Guardians and Wards Act, 1890 to the child’s putative father

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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

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

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),  decided on 06.07.2015] 
Source: Legal news India

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