On 6 July, a Supreme Court bench of Justices Vikramjit Sen and A.M. Sapre ruled that “An unwed mother in India can become the sole legal guardian of a child without the consent of the father.” The bench was adjudicating a plea by an unnamed Christian woman, who questioned the necessity of seeking consent from the father of her five-year-old son in a guardianship petition.
In her petition, the mother asserted her right not to disclose the child’s parentage in a plea for guardianship which normally requires a notice to be sent to the father seeking his consent; she argued that the father had nothing to do with the upbringing of the child. The woman also pointed out that if identifying the father is not mandatory on a passport application form, this can be allowed in a guardianship case, too, under “exceptional circumstances”.
At face value the apex court’s ruling, which adds that the father of the child need not be named if the mother wishes not to reveal it, seems to be empowering. But if broadened to encompass a careful weighing of the larger interests of all women in Indian society – urban and rural, poor, middle-class, rich and very rich, illiterate, semi-literate and educated – this looks to give only a relatively small section of women the choice of being the single guardian of the child by keeping the father away from parenthood and marriage.
If one peels off the outer layers of this so-called radical ruling, it has little to offer by way of liberating women from their subservient role within a conservative Indian society. The lack of a father-figure within or without marriage is almost a mandatory norm in Indian society, and the judgment will hardly change that reality for massive sections of rural women who neither know nor understand its rudiments.
Let us look at the Githa Hariharan case as a backgrounder. On 17 February 1999, a Supreme Court bench including the Chief Justice of India ruled that “it is an axiomatic truth that both the mother and father of a minor child are duty bound to take due care of the person and property of their child.” In a concurrent judgment, one of the members of the same bench noted that “the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category.”
In a write-up following this judgment, Hariharan writes: “Are we so blind that we need the law to tell us that a mother has the right to be her child’s acknowledged guardian?” (Rehabilitating Mothers, www.githahariharan.com).
Section 6 of the Hindu Minority and Guardianship Act (1956) states that the mother is the natural guardian of her legitimate minor child “after” the father. Section 19 of the Guardians and Wards Act (1890) debars the court from appointing the guardian of a minor whose father is living, and is not, in the opinion of the court, unfit to be a guardian.
Taken together, these two sections under two different Acts clearly underscore that according to the courts, the child’s welfare ‘rests’ with the father; this also means that the mother has no equal right as parent, which strips her of important decision-making powers such as looking after the education of the child, deciding on the child’s medical care and nutrition and so on.
It was the Githa Hariharan case that set a precedent when the court recognised, for the first time, that the mother had equal claim to guardianship replacing the earlier ruling that gave the father the privilege to exclusively enjoy the status of a “natural guardian". What is new in this current ruling is that the Supreme Court has extended the parameters of the woman as guardian by including the unwed mother who can now be the sole legal guardian of her child without the consent of the father. As journalist Utkarsh Anand states, “Acknowledging that women are increasingly choosing to raise their children alone in modern society, the Supreme Court on Monday ruled that an unwed mother can be appointed as the sole legal guardian of her child without the consent of the father.”
It is uncertain, however, what this can do for the real concerns and constraints before an unwed mother in a larger number of Indian cases. It would indeed benefit a small section of women who are educated, independent and financially capable of supporting themselves and the child born out of wedlock through their own resources when they personally do not wish to share parental rights with the child’s father. But that would be a miniscule of women in the total Indian population.
Says Dr Kiran Bijlani who runs an NGO for unwed mothers in Mumbai called Dattatraya Seva Sangh, “It would only be an exceptionally bold, economically independent woman who would disregard censure from society and carry on with an out-of-wedlock pregnancy. For the one who makes the choice, the path is unlikely to be a bed of roses.”
It must also be noted that this new ruling contradicts an earlier ruling of the Madras High Court by Justice C.S. Kannan. In 2013, Justice Kannan had held the man liable for the upbringing of his offspring begat through non-marital sex following a case filed by a woman whose lover had fathered two children but refused to pay child support. The learned judge concluded that sex and reproduction necessarily involves two people and both should be held responsible for its consequences, regardless of the legal status of their relationship.
The present ruling raises more questions than it answers. Will schools permit unwed mothers to admit their children without the name of the father being entered in the relevant forms? Will not the father be absolved of all responsibility – social, emotional, moral and financial in the upbringing of the child? Will parents in general terms, accept a daughter who becomes pregnant before marriage? Will it unwittingly grant the father of the child the privacy he desperately seeks so that his name and identity remain hidden from the public domain and his status in society and at work untarnished?
Besides, the new ruling comes with strings attached. For example, in paragraph 4, the court notes that the woman is open to a legal challenge if her child’s father has any objections to her getting guardianship and custody rights. The last paragraph of the judgment clearly states that the guardianship court “will need to decide on the application afresh and whether the court will approve or reject the application on grounds of the woman being an unwed mother is at present, a matter of pure conjecture.”
Most important are the social ramifications among the urban and rural poor. Girls from orthodox, tradition-bound homes are so terrified of the backlash from their families, the neighbourhood and so on that they try to keep their pregnancy concealed till it reaches an advanced stage where abortion is ruled out. Family and relatives are terrified of the social ostracism linked to an unwed pregnant girl.
Dr Bijlani adds, “The few who are able to conceal their pregnancy are compelled to abandon the newborn at railway stations, temples, or worse still, in dustbins. Even those who are economically independent opt to give their child up for adoption since they do not receive the social support from their relatives to bring up the child.”
The family abuses and tortures the girl to vent their anger and sometimes resorts to crude methods of abortion leading to disastrous consequences, including death. They neither know nor are willing to take legal steps for possible solutions. In fact, many parents would rather see the girl die than have the ‘honour’ of the family tarnished, which also destroys all chances of marriage for the girl’s siblings, if any. How will this new ruling help thousands of such girls languishing in the margins, unsung and unheard?
According to Sanjukta Dasgupta, Professor and former Dean, Calcutta University, “The law will be of immense support for women who can afford to rear their children without monetary support from the father of the child. Social ostracism will still persist but at least the law will give the unwed mother protection from both the moral police and perpetrators of violence against women on the grounds of law breaking. Also admission to schools, property rights and inheritance issues will be better protected.”
Sanjukta adds that “this is definitely a step in the right direction because it will impact on the average citizen enough for him/her to think through the traditional resistance to unwed mothers. But how sustainable and transformative it will be in the long run in a conservative country like India will be interesting to wait and watch for.”
So, will this enable large sections of women in a country that lacks the necessary infra-structure or support system to back unwed mothers to sustain their ‘independence’? Noted author Usha Ramaswamy says, “If you are a poor unwed mother, whether or not you name the father, you will be exploited. The tendency of the father is to deny the child even if she names him. She is supporting the child anyway in every way possible, if she wants to keep it. Her family will not accept her any more than they did before, because of this ruling -- in fact, they will have less sympathy because she has gone openly against society by refusing to name the father and seeking single custody of the child.”
In sum therefore, the real ground covered by the ruling in question remains hazy at best. In the words of actor-activist, Bobby Chakraborty, “It is a start definitely! It is welcome. But women have miles to go before it is executed without the inherent patriarchal bias in society that exists today.”