Subhashis Mittra
The Supreme Court order upholding the right of an unwed mother is highly significant. It not only allows them to become the sole legal guardian of a child without the consent of the child’s biological father but also permits them to keep the man’s identity under wraps.
The ruling is being hailed as a triumph of ‘natural justice’ as, among other things, it allows an unwed woman to admit her child to schol without having to face questions about the father’s identity.
She can also nominate her child in bank accounts without having to reveal the father’s name, something not allowed earlier.
This would mean, as the court explained, that the previously all-important box under “father’s name” on school forms, passport applications and assorted official paperwork can be left blank — addressing one crucial aspect of the moral opprobrium encountered by single mothers.
In setting a just framework for unwed mothers and their children, the Supreme Court has recognised the redefined nuclear family, one that is not governed by the archaic notion of parenthood necessarily being that of mother and father.
Significantly, it has also taken away the taint of “illegitimacy” that has scarred so many with its intended bias and bigotry and given desperately desired dignity to single motherhood.
After this ruling, if such a woman does not wish to disclose his name, she doesn’t have to, and authorities must issue a birth certificate that lists only the mother’s name -— she is only required to furnish an affidavit to this effect.
While no single legal judgment can take away the social stigma attached to being an unwed mother, Justices Vikramjit Sen and Abhay Manohar Sapre have reaffirmed the apex court’s position as the defender of human rights.
The ruling came close on the heels of Supreme Court justices Dipak Misra and PC Pant unambiguously stating that there could be no compromise between a rape victim and the criminal who committed the act, putting to bed the horrific notion of forcing a rape victim into rounds of mediation with her rapist, or even encouraging them to marry.
It is a welcome ruling, one that comes down on the side of personal freedom and equal rights of citizenship. Like a similar judgment last year when the Supreme Court gave religious minorities the right to legally adopt children even if personal law contradicted it, this judgment expands freedom in the familial domain.
In stating that giving legal recognition to an “unwilling and unconcerned” father would be an “exercise in futility”, the apex court has endorsed the truism that the woman in such a case is indeed the sole guardian for her child, in every way.
Looking at it in any other way would not just be unfair to her, but also pander to a patriarchal system that shackles her to a man who has in all senses waived his rights to the child — and to the family.
“There is no gainsaying that the identity of the mother is never in doubt. Accordingly, we direct that if a single parent/unwed mother applies for the issuance of a birth certificate for a child born from her womb, the authorities concerned may only require her to furnish an affidavit to this effect, and must thereupon issue the birth certificate, unless there is a court direction to the contrary,” the bench ruled.
“The law is dynamic and is expected to diligently keep pace with time and the legal conundrums and enigmas it presents,” the apex court explained the reason for its ruling.
The case before the court was of a “well educated, gainfully employed and financially secure” Christian woman demanding guardianship rights over her son and to name him as her nominee for insurance policies, bank, property and other documents. She was never married to the father and he, in fact, doesn’t know about the child at all.
“The father is not conferred with an equal position merely by virtue of his having fathered the child,” the bench ruled, taking a macro view of guardianship laws in countries such as Britain, the US and New Zealand.
Turning down the orders of the trial court and the Delhi high court, which had said that the father must be sent a notice for the guardianship petition, the apex court asserted that it sees “no purpose in imposing an unwilling and unconcerned father on an otherwise viable family nucleus” in today’s society where women are increasingly choosing to raise their children alone.
The SC has routinely expanded the rights available to women, and to other minorities, in no small part because the executive and legislature have together displayed a lack of vision in keeping pace with a changing India.
In a landmark judgment in April 2014, the court recognised transgenders as a third gender and directed legislators to provide the community all the rights and benefits given to socially and economically backward classes.
In 2013, the court acknowledged that the abominable “two-finger test” used on rape survivors violated their rights, and prohibited its practice. It extended the protections of the domestic violence act to live-in relationships in 2010.
In 2006, it ruled that a rape accused could be convicted on the strength of the evidence given by the victim, even if there was no medical evidence to suggest rape.
These are just a few instances in which the judiciary has stepped in to fill the void left by law makers (PTI)
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