Rights of an unmarried mother over her child in India

In this blog post, Anubhav Pandey talks about the rights of an unmarried mother over her child. 

Today’s era is of equality. Men and women walk shoulder to shoulder in every sphere of life. There is not a single field where a woman has not held a position equivalent to their male counterparts. No one is above and none beneath. The idea of equality prevails over every legal jurisprudence.

Therefore, in today’s light, it becomes equally important to discuss the rights of the unmarried mother over her children.

Does an unmarried mother have a custodial right over her child? Is she entitled to maintain her child? What is the right of a single mother in a live-in relationship? What are the rights of an unmarried mother if she adopts a child? And finally, what are the rights of an unmarried mother over her child after a divorce? This is a detailed article on rights of an unmarried mother over her child.

Rights of a Single Mother in a Live-in Relationship

There is no specific law dealing with the intricacies involved in a live-in relationship in India. A couple often living for long in a live-in relationship develops the urge of having a child. But when there is a problem between the couple, the rights of the child are often confused.

Is the child legitimate or not? Who will have the custody of the child? Who will provide with the maintenance?

In cases of custody of the child, the matter is often dealt under the personal law if the couple is of same religion, otherwise, any central act binding on all religion.

Under the Hindu Personal Law

Before deciding the issue as to whether the custody should be given to the mother, the High Court must –

  • Take into account the wishes of the child concerned.
  • Assess the psychological impact, if any, on the change in custody, after obtaining the opinion of a child psychiatrist or a child welfare worker.[1]

Natural Guardian of a Hindu Child

Custodial matters of a child are also decided according to who is the natural guardian of the child. The law governing this issue is Hindu Minority and Guardianship Act. The act talks, among other things, who is natural guardian of a child.

The natural guardian of a Hindu minor, irrespective of minor’s will in both property and person is as follows-

Where Minor is a Boy or an Unmarried Girl

Till the age of five, the natural guardian is the mother of the child, irrespective of whether the child is a boy or a girl.

After five, father is the natural guardian of the minor and after father’s death, right is of the mother.

After making an interpretation and concluding as to whether the unmarried mother will have right over her child after the breakdown of a live-in relationship, the answer is negative. Mother has no right to custody of her child in the above said situations under Hindu laws.

But, there are situations where this strict interpretation of law is ignored and a liberal approach is taken up by the court.

In a precedent, the apex court has given the right of guardianship of the child to a divorced mother. In the following case, the court held a liberal view and restated the legal position. If the father of the child takes or shows no interest in the welfare of the child, he ceases to be the guardian of the said child.

The child is not a toy which can be rolled from one corner to the other. As the saying goes –

“There is no illegitimate child, only illegitimate parents.”

What is Custody?

In legal sense, custody signifies the following –

  • The right to enroll the child in school.
  • The right to obtain medical treatment.
  • The right to get legal benefits, maintenance, inheritance for the child.
  • The right to do things which a parent in legal custody can do.
  • The right to decide who sees the child and for how long.

Major Factor which Court Looks at while Deciding the Custody of the Child

  • Mental and physical health of the parent.
  • Track record of the parent- Is there any criminal case pending or settled against the petitioner or not.
  • Social relationship of the parents– The relationship between the family members etc.
  • Financial stability of the parent.
  • The wish of the child is also taken care of.

Therefore, the unmarried mother can be the sole guardian of the child.

Unmarried Women and Adoption

The matter gets complicated when a single woman desires to adopt a child. Strictly for Hindus, laws regarding this are laid down in Hindu Adoption and Maintenance Act 1956.

The prerequisite for a valid adoption are

  • The person adopting has the capacity and also the right to take in adoption.
  • The person giving in adoption has the capacity to do so.
  • The person adopted is capable of being taken in adoption.

When can a female Hindu adopt a child?

Any female Hindu-

  • Who is of sound mind.
  • Who is not a minor.
  • Who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption.

Therefore, an unmarried Hindu mother possesses all the rights to adopt a child.

Rights of an Unmarried Mother over her Adopted Child

  • An adopted child shall be deemed to be the child of her adoptive mother for all purposes with effect from the date of the adoption and from such date all the ties of the child to the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.
  • Any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property including the obligation to maintain relatives in the family of his or her birth. An adoption does not deprive the adoptive mother of the power to dispose of his or her property by transfer inter Vivos or by will.
  • Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child.
  • No adoption which has been validly made can be canceled by the adoptive mother, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.

Rights of a Surrogate mother

A surrogate mother has no legal rights over her child. She cannot demand custody of the child. A surrogate mother is not genetically related to the child. Before entering into an agreement of surrogacy, the surrogate mother undergoes a series of counseling. A surrogate mother is not biologically connected to the child.

In India, commercial surrogacy is legalized since 2002. India is one of the major surrogacy related tourism because of the low cost of surrogacy in India. The cost of surrogacy in India is 1/3rd compared to the price of surrogacy in the UK.

Important Read: Surrogacy Regulation Bill 2016 says No Compensation

Life Insurance for Surrogate Mother

Under the agreement, the surrogate mother should be protected with the insurance policy of sufficient amount. Life of surrogate mother shall be equally protected and taken care of.

Even after 70 years of Independence, a mother is not the first preference for custody of a child, Sad! Being the biological mother, shouldn’t she be the first preference? Write in the comments below & Don’t forget to Share.

Suggested Readings

Child Custody (Law for the Layperson) | Child Custody In India Explained

http://www.womensweb.in/articles/child-custody-law-for-the-layperson/

Reference –
[1] Mamta v. Ashok Jagannath Bharuka, (2005) 12 SCC 452

 

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