- The SC gave one woman custody of her child.
- Media\'s take: the court has given unwed mothers sole guardianship.
- Unwed mothers\' claim to custody wasn\'t even an issue before the SC.
- The question was: should the father necessarily be made a party?
- In this case, the father wasn\'t a party, so he couldn\'t contest the custody claim.
The glut of media coverage of the Supreme Court's judgment on legal guardianship, all harping on 'unwed mother', could lull one into believing that the court has charted some new frontier in feminist jurisprudence.
Almost every newspaper claimed that "in a landmark judgment, the Supreme Court has held that unwed mothers can be given the status of sole legal guardians of their children".
Some worded it slightly differently, on the lines of "the court upheld the right of an unwed mother to become the sole legal guardian without seeking prior consent of the child's absentee biological father".
All this could lead one to believe that the court has indeed taken giant strides forward from its 1999 decision on the issue. That one, delivered in the case of Githa Hariharan, was indeed landmark: it recognised that the mother was as "natural" a guardian as the father.
A man could be apathetic towards his child, or walk out on his wife and children, or get a divorce without seeking custodial rights. In such cases, the court had held, he would be deemed an absentee father and wouldn't be allowed to claim sole guardianship over the child.
If the SC had indeed ruled conclusively on an unwed mother's guardianship rights, it would've been momentous
India's guardianship and adoption laws give an unjust amount of currency to a woman's marital status. It's true that after actor Sushmita Sen won her lengthy court battle, the laws have been amended, but for an average single or separated mother, custody and guardianship battles remain torturous legal minefields.
So, if the court had, on Monday, indeed ruled conclusively on an unwed mother's right to guardianship, it would have been a momentous occasion.
No guardianship contest
But paragraph 18 of the judgment makes it clear that isn't the case: "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."
In simple terms, it means that the question "can an unwed mother claim custody over her child?" was not even an issue before the court. This is because the child's father wasn't a party in this case, so there wasn't any opposition to her claim of guardianship.
In fact, the entire case revolves on a single question: should the child's father necessarily be made a party? In her petition, the woman had claimed that naming him in the guardianship application would breach her privacy, and make her son vulnerable to a potential acrimonious paternity dispute, something she was determined to avoid at all costs. She had not, by any means, contested his claims (there were none, since he wasn't even aware of the litigation).
As the court notes in paragraph 3 of the judgment, she had sworn an affidavit, stating that in case the father objects to her guardianship sometime in the future, she would be ready for a court challenge.
A case at a time
Section 11 of the Guardians and Wards Act, which is essentially a procedural provision, was at the centre of this litigation. It requires that after every guardianship application is submitted, notices would be sent to the parents of the minor or child, so that they could have their say before any final decision is made.
As the court noted, this ideally applies when a third party is seeking guardianship, and not in a case between the child's parents.
But the peculiar circumstances of the case demanded a different interpretation of this provision, something the Delhi High Court had declined to do. Taking a very literal approach, it held, on 8 August 2011, that it was mandatory to notify and hear the father before proceeding with the guardianship application.
The Supreme Court, on the other hand, took a different approach. It invoked Section 7 of the Act, which states that the child's welfare should be the fundamental and deciding factor in awarding guardianship.
Courts have to interpret the law as it stands in the books, but that doesn't mean the bare letter of the law or procedural details and technicalities should be allowed to defeat its main purpose. Adopting this approach - one of justice and not mere legalese - the Supreme Court directed the guardianship court to decide the application in the manner the woman had pleaded for.
Did the child's father get a raw deal? Both parents have a right to be involved in their child's life unless, of course, they have done something so egregiously wrong as to render themselves ineligible. In paragraph 12, the court notes that because the father hasn't bothered to show any concern for his child, he cannot cry foul at not being heard, at least at the present stage.
The question 'can an unwed mother claim custody over her child?' was not even an issue before the court
What about a child's right to know his father, which shouldn't be compromised even if his parents are at loggerheads with each other? The court protected this right by donning the mantle of parens patriae, that is, a paternal figure who decides on someone's behalf for her welfare.
The judges impressed upon the woman to disclose his father's name to her son, and submit all details in a sealed envelope. The contents of this envelope would be read and revealed only if the court issues specific and appropriate directions.
The battle against concepts, ideas and institutions steeped in patriarchy is a long and bitter one. A women's right to the custody of their children is still a vehemently contested domain. Going by how courts have ruled over the years, there is a distinct possibility of an unwed mother being directed to give up her child to a state institution or an adoption agency or, if the judges are benevolent, to the maternal grandparents, provided they are willing.
It is at those moments of excruciating injustice that the media should holler about 'unwed mothers' and make it 'trend'.
The views expressed here are personal and do not reflect those of the organisation.