Unwed Mother to be the Sole Guardian of her Child

The Supreme Court of India, in a landmark case, ruled that an unwed mother can apply to be the sole guardian of a child & is not obligated to disclose the details of the father. This article discusses the key elements from the judgement & the development around a mother’s custodial rights in India.

Wed Aug 17 2022 | Family Law | Comments (0)

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In a landmark case, the Hon’ble Supreme Court ruled that an unwed mother can apply to be the sole guardian of a child in India, without being obligated to disclose the identity of the father. This judgment was passed in 2015. However, many such mothers are unaware of this judgment working in their favour for seeking sole guardianship without the father.

The Apex Court recognized that mothers are seeking to raise their children without fathers and, hence, there was no requirement to forcibly demand the presence of an uncaring or uninterested father.

Facts of the case

  • The unwed mother appealed to the Supreme Court against a Judgment of the Hon’ble High Court of Delhi, which had directed the appellant-mother to disclose the name and address of the father of her child to successfully gain the ‘guardianship certificate’.
  • The appellant-mother identified with the Christian faith, is well educated, well employed and financially secure. The child was raised solely by her, without any assistance or involvement of the father.
  • She filed an application under Section 7 of the Guardians & Wards Act, 1890 (‘the Act’) seeking sole guardianship of her son.
  • However, Section 11 of the Act requires a notice to be sent to the ‘parents’ (mother and father) before a guardian is appointed.
  • Her application was dismissed by the High Court on her refusal to reveal the father’s name and personal details, as the court opined that her claiming to be a single mother can only be determined/verified after issuing a notice to the father.
  • The court determined that a natural father could have an interest in the child even without marriage.

Key points of analysis

Following were the key points discussed in determining the case:

Stance of Various Personal Laws

The court gave weight to the stance enumerated under various personal laws to showcase a possible inclination of the law.

Hindu Law

  • Hindu Minority & Guardianship Act, 1956 makes specific provisions w.r.t. natural guardians of ‘illegitimate children’.
  • Primacy is given to the mother over the father, in this regard.

Muslim Law

  • Custody of ‘illegitimate children’ provided to the mother and her relatives.
  • Belief that maternity of the child is established because the woman actually gives birth, irrespective of her relations with the father.
  • Paternity of the child is vague in case a child is not out of wedlock in Muslim law.

Indian Succession Act (Christian Law)

  • Section 8 of the Indian Succession Act, 1925 applies to Christians in India.
  • Under this Act, the origin of an illegitimate child is in the place where, at the time of birth, the mother is domiciled.
  • This shows preference to the mother over the father of the child.

International Jurisdictions


United Kingdom

  • Under the Children Act 1989, Section 2(2), custody of a child born of unwed parents lies with the mother, in all cases.
  • For a father to have responsibility, he has to fulfill certain criteria attributed to parental responsibility according to the Act.

U.S.A.  

  • Given the federal structure of the country, each state as different child custody laws.
  • However, predominantly, the mother has full legal and physical custody from the time a child is born from an unmarried association in the U.S.A.
  • High threshold for the father to establish his fatherhood to outweigh the mother’s claims.
  • Some states provide joint custody, if both have signed the Birth Certificate.

New Zealand

  • Guardianship of a sole mother governed by Section 17 of the Care of Children Act, 2004.
  • Mother declared as the sole guardian if, during the period beginning with conception of the child and ending with birth, she was not married to, in civil union with, or living as a partner with the father.

The privacy argument

  • The Court opined that forcing the mother to disclose the name and details of the father violates her fundamental right to privacy.
  • The Court determined that any responsible father, interested in the well-being of his offspring, would cater to the child’s general welfare and development, and this was not evident in the present case.

Section 11 of the Guardians & Wards Act, 1890

  • The Court declared Section 11 of the Act as purely procedural.
  • The Court opined that the term ‘parent’ is not explicitly defined in the Act, and in the case of illegitimate children, whose sole caretaker is one of the parents, it could simply mean one parent alone.
  • There is no mandatory procedural requirement to serve a notice to the father by the natural mother under Section 11.
  • The sole consideration is the welfare of the child. Custody never has permanence and, thus, any person considered for the child’s welfare can question the same at any time.

Concluding thoughts of the Court

The Supreme Court allowed the appeal of the appellant-mother and directed the Guardian Court to recall the dismissal order passed by it. Directions were passed to consider the guardianship application expeditiously, without asking her to furnish any details of the father or serving notice.

For all considerations, the welfare of the child is of paramount importance and must be the sole guiding factor. The Supreme Court criticized the Guardian Court for dereliction of duty in dismissing the petition without due considerations of the problems, complexities, complications, and implications for the child. The Supreme Court reiterated that courts must not lose sight of their parens patriae obligations. 

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