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This article is written by Rimjhim Vaishnavi a student of NUSRL, Ranchi.

What is the meaning of illegitimate child?

As per Black Law dictionary illegitimate means “something which is contrary to law”. Illegitimate children as stated by S.C. of India, are children who are not born out of a lawful wedlock. The legitimacy or illegitimacy of a child depends on the status of valid or void marriage. Hence social status of a child depends on the act of its parents.[1]

Hence, Leon R. Yankwich, stated that “there are no illegitimate children-only illegitimate parents”

Earlier legislation regarding Guardianship of  children  under Indian laws.

Though India is a secular country, but to maintain the diversity and to provide equal status to all the religion and to maintain the essence of every religion, some customary laws are being promoted which guides the person who belongs to that particular religion. The laws relating to the legitimate and illegitimate children are dealt under those customary laws.

  • Guardianship of an child under Hindu Minority and Guardianship Act

Guardianship basically means the authority and responsibility of an individual backed up by law to take care of a minor child and his/her property till the child attains its majority. Under Hindu Minority and Guardianship Act Sec. 6 which states that as per law the natural guardian of a legitimate minor male or female child is the father.

Under Sec.6 of Hindu Minority and Guardianship Act ,which also deals with the concept of illegitimate children  where the mother of the illegitimate children has been stated as the natural guardian of the children.

 Where the mother of an illegitimate child without any notice to the father is the natural guardian and after her the father may be given the guardianship.

  • Guardianship of children under Mohammedan law

Under Mohammedan law mother is not the natural guardian of the legitimate and illegitimate children. But the custody of the illegitimate child is given to the mother and her relatives.. Father is not entitled to have the guardianship or the custody of the minor illegitimate children and in case of a minor legitimate child the father is the natural guardian.

  • Guardianship of a child under Guardians and Wards Act, 1890

With regards to the guardianship of a Christian and Parsi Children are dealt under the Guardianship and Wards Act, where the provisions have been laid down that for acquiring a guardianship of a child, the mother has to send a notice to the father of the child, this has been dealt under Sec.11 of the Guardianship and ward Act.

The loophole in this provision is relating to the child who was not born within a marriage. What if the mother does not want to disclose the name of the father? What if the father is not aware of the child? What if the father is aware but has not contacted the child and the mother. Is it necessary to send a notice to the father?

As Hindu Minority and Guardianship Act as well as Mohammedan law, gave the sole authority of the illegitimate child to its mother, but what about people other than these two religions, what about other religion?

About the Case

These questions which have been raised above were solved in the case filed by a Christian unwedded mother, who wanted the custody of its child and had applied for it in the district court under Sec. 7 of the Guardianship and Ward Act, who directed her to send a notice to the father of the child under Sec.11 of the concerned Act. She appealed against it in the Delhi High Court, stating the fact that the father was not aware of the child and that he was not in contact with them, hence she does not wanted to disclose the identity of the child’s father. The H.C. rejected her appeal on the basis of Sec. 11 and Sec.19 of the Act, stating that in the matter of guardianship it is necessary to send a notice to the father, as the natural father might have interest in the welfare and custody of the child even if there is no marriage.

Later she appealed to the SC , who set aside the decision of the trial court and the H.C. of Delhi and gave a judgement in favour of the women on 6th July, 2015.The judgement was passed by  Justice. Vikramajit Sen  with the advice of  Mr Luthra as an amicus curaie.

Issues which were raised

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  • Under Sec. 11 of the Guardianship and Ward Act is it necessary for a mother to send a notice to the father for the guardianship of the illegitimate child.
  • Is the right of the parents or the welfare of the child the main concern of Sec.11 of Guardianship and Ward Act?
  • Will Sec.19 of the Guardianship and Ward Act applies when the father is not in contact with the mother and child?

To answer these issues S.C. not only interpreted the provisions of Guardian and Ward Act but along with it, it also interpreted the provisions of Hindu Minority and Guardianship Act on the basis that India being a secular religion, it does not pays an onus to the religion of the appellant, what has to be done in this case is to interpret the law of the land in light of legislative intent and prevailing case law, and has to decide  “whether an unwedded mother can have the sole guardianship of its child without sending any notice to the father?

Points considered by the Supreme Court in declaring the new legislation  relating to the guardianship of unwedded mother.

To reach to a satisfying judgement keeping in view all the facts and circumstances of the following points were considered in determining the same.

  • Law Commission of India report, 2015[2] this stated that the main purpose of any legislation dealing with a child, its main focus should be towards the welfare of the child. Hence the main essence of the Guardianship and Minority Act is to ensure the welfare of the child[3] therefore under Sec.7 the initial thing which has to be taken into consideration for guardianship of a child is the child’s welfare and the rights of the mother and father and their interests are subservient.
  • Also in view of Sec. 11 of the Guardianship and ward Act, if the notice is not given to the father would deprive him from his right and also as per Sec. 19 of the Act , which states that a guardian cannot be appointed if the father of the minor is alive and is not unfit to be the guardian of the child in the opinion of law but if the father shows no interest and has no involvement till date in the child’s life. Then the priority should be given to the mother who has been with child and has taken care of the child[4].
  • In this case the question regarding right to privacy also came up on which the court sustained that the right to privacy of the women would be violated if, she discloses the name of her child’s father, and right to privacy is a fundamental right provided by constitution.
  • The Supreme Court also used foreign legislation as per reference of countries and came to the conclusion the child welfare has to be seen wholly and to promote it judgement should be passed, hence in this case the father was not in contact with the child and the mother, and the mother was financially strong as she by herself had taken care of the child without anyone help. Therefore sending a notice to the father would not add to the welfare of the child.

New legislation

New legislation was made in favour of the unwedded mother of the child, which ensured the mother the power of the guardianship and custody of its child, when the father was not in contact of the mother and the child.

  • It is not necessary to state the name of the father in applications for admission in school and while attaining passport for the minor child.
  • If single mother or unwedded mother applies for the birth certificate, then the authorities may only require the women to get an affidavit and on basis of it should issue the birth certificate, unless there is a contrary court direction to it.
  • The unwedded mother under the Guardianship and Ward Act, can have the guardianship as well as the custody of the child without sending notice to the father.

Hence the appellant application for guardianship expeditiously without requiring notice to be given to the father of the child was accepted.

Conclusion

Society is dynamic, it changes with time and hence the issues also changes with time. The new judgment indicates the flexibility of law, which can be changed as per the new grievances of people. This judgment also shows the change in patriarchal society, where since from beginning the name of father was required even though the father was not concerned regarding the child and the mother. Therefore this judgement made the meaning of guardianship more clear, that the one who is working for the welfare of the child and who is concerned about it will have the custody and not just because the person might be concerned about the child. Also as per the Indian Succession Act, 1925, which is applicable to Christians in India, it stated that the domicile of the illegitimate child is based on the domicile of the mother at the time of the birth.  Apart of it the Convention on the Rights of the Child, which India has acceded on 1992, states that not only under Indian legislation but also under all jurisdictions across the globe, child welfare is the most important aspect which has to be determined and not the right of parents, hence through this new judgement the S.C. also paid importance to the welfare of the child.

[1] Smt. Parayankandiyal v. K.Devi & Ors: 1996 SCC (4) 76

[2] http://lawcommissionofindia.nic.in/reports/Report%20No.257%20Custody%20Laws.pdf

[3] Laxmi Kant Pandey v. Union of India; 1985 (Supp), SCC 701

[4] Githa Hriharan v. RBI; 1999, 2 SCC 228

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