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REPORTABLE

IN THE SUPRME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. …….. OF 2015 [Arising out of SLP (Civil) No. 28367 of 2011]

ABC  … Appellant

Versus  

The State (NCT of Delhi) …       Respondent

J U D G M E N T

VIKRAMAJIT SEN, J.

1. A  legal  nodus  of  seminal  significance  and  of  prosaic  procedural

origination presents itself before us. The conundrum is whether it is imperative

for an unwed mother to specifically notify the putative father of the child whom

she has given birth to of her petition for appointment as the guardian of her

child.  The common perception would be that  three competing legal  interests

would arise, namely, of the mother and the father and the child.  We think that it

is only the last one which is conclusive, since the parents in actuality have only

legal obligations.  A child, as has been ubiquitously articulated in different legal

forums, is not a chattel or a ball to be shuttled or shunted from one parent to the

other. The Court exercises paren patrae jurisdiction in custody or guardianship

wrangles; it steps in to secure the welfare of the hapless child of two adults

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whose personal differences and animosity has taken precedence over the future

of their child.

2. Leave  granted.   This  Appeal  is  directed  against  the  Judgment  dated

8.8.2011 delivered by the High Court of Delhi, which has dismissed the First

Appeal of the Appellant, who is an unwed mother, holding that her guardianship

application cannot be entertained unless she discloses the name and address of

the father of her child, thereby enabling the Court to issue process to him.  As

per the Appellant’s request, her identity and personal details as well as those of

her son have not been revealed herein.  

3. The  Appellant,  who  adheres  to  the  Christian  faith,  is  well  educated,

gainfully employed and financially secure.  She gave birth to her son in 2010,

and has subsequently raised him without any assistance from or involvement of

his putative father. Desirous of making her son her nominee in all her savings

and other insurance policies, she took steps in this direction, but was informed

that  she  must  either  declare  the  name  of  the  father  or  get  a

guardianship/adoption  certificate  from  the  Court.  She  thereupon  filed  an

application under Section 7 of the Guardians and Wards Act,  1890 (the Act)

before  the  Guardian  Court  for  declaring  her  the  sole  guardian  of  her  son.

Section 11 of the Act requires a notice to be sent to the parents of the child

before a guardian is appointed.  The Appellant has published a notice of the

petition in a daily newspaper, namely Vir Arjun, Delhi Edition but is strongly

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averse to naming the father.  She has filed an affidavit stating that if at any time

in  the  future  the  father  of  her  son  raises  any  objections  regarding  his

guardianship, the same may be revoked or altered as the situation may require.

However, the Guardian Court directed her to reveal the name and whereabouts

of the father and consequent to her refusal to do so, dismissed her guardianship

application on 19.4.2011.   The Appellant’s appeal before the High Court was

dismissed  in limine,  on the reasoning that  her allegation that  she is a single

mother could only be decided after notice is issued to the father; that a natural

father could have an interest in the welfare and custody of his child even if there

is no marriage; and that no case can be decided in the absence of a necessary

party.

4. Ms.  Indu  Malhotra,  learned  Senior  Counsel  for  the  Appellant,  has

vehemently argued before us that the Appellant does not want the future of her

child to be marred by any controversy regarding his  paternity, which would

indubitably result should the father refuse to acknowledge the child as his own.   

This is a brooding reality as the father is already married and any publicity as to

a declaration of  his fathering a child out  of  wedlock would have pernicious

repercussions to his present family.  There would be severe social complications

for her and her child.  As per Section 7 of the Act, the interest of the minor is the

only relevant factor for appointing of a guardian, and the rights of the mother

and father are subservient  thereto.   In this scenario, the interest of the child

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would be best served by immediately appointing the Appellant as the guardian.

Furthermore, it is also pressed to the fore that her own fundamental right to

privacy will be violated if she is compelled to disclose the name and particulars

of the father of her child.   Ms. Malhotra has painstakingly argued this Appeal,

fully cognizant that the question that arises is of far reaching dimensions.  It is

this  very feature that  convinced us  of  the  expediency of  appointing  amicus

curiae, and Mr. Sidharth Luthra has discharged these onerous duties zealously,

for which we must immediately record our indebtedness.

5. It would be pertinent to succinctly consider the Guardians and Wards Act,

1890. The Act, which applies to Christians in India, lays down the procedure by

which guardians are to be appointed by the Jurisdictional Court. Sections 7, 11

and 19 deserve extraction, for facility of reference.  

“7. Power of the court to make order as to guardianship (1) Where the court is satisfied that it is for the welfare of a minor that an order should be made-  

(a) appointing a guardian of his person or property, or both, or  

(b) declaring a person to be such a guardian,  the court may make an order accordingly.  (2)  An  order  under  this  section  shall  imply  the  removal  of  any guardian who has not been appointed by will or other instrument or appointed or declared by the court.  (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the court, an order under this section appointing or declaring another person to be guardian in his stead shall  not  be  made until  the  powers  of  the  guardian  appointed  or declared as aforesaid have ceased under the provisions of this Act.”

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The  details  of  the  form of  application  are  contained  in  Section  10  and  the

procedure that applies to a guardianship application is prescribed in Section 11.  

11. Procedure on admission of application (1) If the Court is satisfied that there is ground for proceeding on the application,  it  shall  fix  a  day  for  the  hearing  thereof,  and  cause notice of the application and of the date fixed for the hearing-  

(a) to be served in the manner directed in the Code of Civil Procedure,1882(14 of 1882)11 on-  

(i)  the parents of the minor if  they are residing in any State to which this Act extends;  (ii) the person, if any, named in the petition or letter as having  the  custody  or  possession  of  the  person  or property of the minor;  (iii) the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant; and  (iv) any other person to whom, in the opinion of the court special notice of the applicant should be given; and  

(b) to be posted on some conspicuous part of the court-house and of the residence of the minor, and otherwise published in such manner as the court, subject to any rules made by the High Court under this Act, thinks fit.  

(2) The State Government may, by general or special order, require that  when any part  of  the  property  described in  a  petition  under section 10, sub-section (1), is land of which a Court of Wards could assume the superintendence, the court shall also cause a notice as aforesaid to be served on the Collector in whose district the minor ordinarily  resides  and  on  every  Collector  in  whose  district  any portion of the land is situate, and the Collector may cause the notice to be published in any manner he deems fit.  (3) No charge shall be made by the court or the Collector for the service  or  publication  of  any  notice  served  or  published  under sub-section (2).

 Section 19 is of significance, even though the infant son does not independently

own or possess any property, in that it specifically alludes to the father of a

minor.  It reads thus:

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19. Guardian not to be appointed by the court in certain cases  Nothing  in  this  Chapter  shall  authorise  the  court  to  appoint  or declare  a  guardian  of  the  property  of  a  minor  whose  property  is under  the  superintendence  of  a  Court  of  Wards  or  to  appoint  or declare a guardian of the person-  (a) of a minor who is a married female and whose husband is not, in the opinion of court, unfit to be guardian of her person; or  (b) of a minor whose father is living and is not in the opinion of the court, unfit to be guardian of the person of the minor; or  (c)  of  a  minor  whose  property is  under  the superintendence of  a Court of Wards competent to appoint a guardian of the person of the minor.

We must immediately underscore the difference in nomenclature, i.e. ‘parents’

in Section 11 and ‘father’ in Section 19, which we think will  be perilous to

ignore.

6. It is contended on behalf of the State that Section 11 requires a notice to

be given to the ‘parents’ of a minor before a guardian is appointed; and that as

postulated by Section 19, a guardian cannot be appointed if the father of the

minor is alive and is not, in the opinion of the court, unfit to be the guardian of

the child. The impugned judgment is, therefore, in accordance with the Act and

should  be  upheld.  It  seems  to  us  that  this  interpretation  does  not  impart

comprehensive significance to Section 7, which is the quintessence of the Act.

However,  before  discussing  the  intendment  and  interpretation  of  the  Act,  it

would be helpful to appreciate the manner in which the same issue has been

dealt  with  in  other  statutes  and  spanning  different  legal  systems  across  the

globe.  

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7. Section 6(b) of the Hindu Minority and Guardianship Act, 1956 makes

specific provisions with respect to natural guardians of illegitimate children, and

in this regard gives primacy to the mother over the father.  Mohammedan law

accords the custody of illegitimate children to the mother and her relations. The

law follows the  principle  that  the  maternity  of  a  child  is  established in  the

woman who gives birth to it, irrespective of the lawfulness of her connection

with the begetter. However, paternity is inherently nebulous especially where

the child is not an offspring of marriage.  Furthermore, as per Section 8 of the

Indian Succession Act, 1925, which applies to Christians in India, the domicile

of origin of an illegitimate child is in the country in which at the time of his

birth  his  mother  is  domiciled.  This  indicates  that  priority,  preference  and

pre-eminence is given to the mother over the father of the concerned child.  

8.  In  the  United  Kingdom,  the  Children  Act  1989  allocates  parental

responsibility,  which  includes  all  rights,  duties,  powers,  responsibilities  and

authority of a parent over the child and his/her property. According to Section

2(2) of that Act, parental custody of  a child born of unwed parents is with the

mother in all cases, and additionally with the father provided he has acquired

responsibility  in  accordance  with  the  provisions  of  the  Act.  To  acquire

responsibility, he would have to register as the child’s father, execute a parental

responsibility agreement with the mother or obtain a Court order giving him

parental responsibility over the child.   In the U.S.A., each State has different

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child custody laws but predominantly the mother has full  legal and physical

custody from the time the child is born. Unless an unmarried father establishes

his  paternity  over  the  child  it  is  generally  difficult  for  him  to  defeat  or

overwhelm the preferential claims of the mother to the custody.  However, some

States assume that both parents who sign the child’s Birth Certificate have joint

custody, regardless of whether they are married.  In Ireland, Section 6(4) of the

Guardianship  of  Infants  Act,  1964 ordains  -  “The mother  of  an  illegitimate

infant  shall  be  guardian  of  the  infant.” Unless  the  mother  agrees  to  sign

a statutory declaration, an unmarried father must apply to the Court in order to

become a legal guardian of his child.  Article 176 of the Family Code of the

Philippines explicitly provides that “illegitimate children shall use the surname

and shall be under the parental authority of their mother, and shall be entitled to

support  in  conformity  with  this  Code.”  This  position  obtains  regardless  of

whether  the  father  admits  paternity.  In  2004,  the  Supreme  Court  of  the

Philippines in  Joey D. Briones vs. Maricel P. Miguel et al, G.R. No. 156343,

held that an illegitimate child is under the sole parental authority of the mother.

The law in New Zealand, as laid out in Section 17 of the Care of Children Act,

2004, is that the mother of a child is the sole guardian if she is not married to, or

in civil union with, or living as a de facto partner with the father of the child at

any  time  during  the  period  beginning  with  the  conception  of  the  child  and

ending with the birth of the child.    In South Africa, according to the Children’s

Act No. 38 of 2005, parental responsibility includes the responsibility and the

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right (a) to care for the child; (b) to maintain contact with the child; (c) to act as

guardian of the child; and (d) to contribute to the maintenance of the child. The

biological mother of a child, whether married or unmarried, has full parental

responsibilities and rights in respect of the child. The father has full parental

responsibility if he is married to the mother, or if he was married to her at the

time of the child’s conception, or at the time of the child’s birth or any time in

between, or if at the time of the child’s birth he was living with the mother in a

permanent life-partnership, or if he (i) consents to be identified or successfully

applies  in  terms of  Section 26 to  be  identified as  the child’s father  or  pays

damages in terms of customary law; (ii)  contributes or has attempted in good

faith to contribute to the child’s upbringing for a reasonable period; and (iii)

contributes or has attempted in good faith to contribute towards expenses in

connection with the maintenance of  the child for  a reasonable period.   This

conspectus indicates that the preponderant position that it is the unwed mother

who possesses  primary custodial  and guardianship  rights  with regard to  her

children and that the father is not conferred with an equal position merely by

virtue  of  his  having  fathered  the  child.  This  analysis  should  assist  us  in  a

meaningful, dynamic and enduring interpretation of the law as it exists in India.

9. It is thus abundantly clear that the predominant legal thought in different

civil and common law jurisdictions spanning the globe as well as in different

statutes within India is to bestow guardianship and related rights to the mother

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of a child born outside of wedlock.  Avowedly, the mother is best suited to care

for her offspring, so aptly and comprehensively conveyed in Hindi by the word

‘mamta’.  Furthermore, recognizing her maternity would obviate the necessity

of  determining  paternity.   In  situations  such  this,  where  the  father  has  not

exhibited any concern for his offspring, giving him legal recognition would be

an  exercise  in  futility.   In  today’s  society,  where  women  are  increasingly

choosing  to  raise  their  children  alone,  we  see  no  purpose  in  imposing  an

unwilling and unconcerned father on an otherwise viable family nucleus.   It

seems to us that a man who has chosen to forsake his duties and responsibilities

is not a necessary constituent for the wellbeing of the child.  The Appellant has

taken care to clarify that should her son’s father evince any interest in his son,

she would not object to his participation in the litigation, or in the event of its

culmination, for the custody issue to be revisited.   Although the Guardian Court

needs no such concession, the mother’s intent in insisting that the father should

not be publically notified seems to us not to be unreasonable.   

10. We feel it necessary to add that the purpose of our analysis of the law in

other countries was to arrive at a holistic understanding of what a variety of

jurisdictions felt would be in the best interest of the child. It was not, as learned

Counsel suggested, to understand the tenets of Christian law.  India is a secular

nation  and  it  is  a  cardinal  necessity  that  religion  be  distanced  from  law.

Therefore, the task before us is to interpret the law of the land, not in light of the

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tenets  of  the  parties’  religion  but  in  keeping  with  legislative  intent  and

prevailing case law.  

11. It  is  imperative  that  the  rights  of  the  mother  must  also  be  given due

consideration. As Ms. Malhotra, learned Senior Counsel for the Appellant, has

eloquently  argued,  the  Appellant’s  fundamental  right  of  privacy  would  be

violated if she is forced to disclose the name and particulars of the father of her

child.  Any responsible man would keep track of his offspring and be concerned

for the welfare of the child he has brought into the world; this does not appear to

be so in the present case, on a perusal of the pleading as they presently portray.

Furthermore,  Christian  unwed  mothers  in  India  are  disadvantaged  when

compared to their Hindu counterparts,  who are the natural guardians of their

illegitimate children by virtue of their maternity alone, without the requirement

of any notice to the putative fathers.  It would be apposite for us to underscore

that our Directive Principles envision the existence of a uniform civil code, but

this remains an unaddressed constitutional expectation.   

12. We recognize that the father’s right to be involved in his child’s life may

be taken away if Section 11 is read in such a manner that he is not given notice,

but  given his  lack  of  involvement  in  the  child’s life,  we  find  no  reason  to

prioritize his rights over those of the mother or her child. Additionally, given

that the Appellant has already issued notice to the public in general by way of a

publication in a National Daily and has submitted an affidavit stating that her

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guardianship  rights  may be revoked,  altered  or  amended if  at  any point  the

father of the child objects to them, the rights, nay duty of the father have been

more than adequately protected.  

13. The issue at hand is the interpretation of Section 11 of the Act. As the

intention of the Act is to protect the welfare of the child, the applicability of

Section 11 would have to be read accordingly.  In  Laxmi Kant Pandey vs.

Union  of  India  1985  (Supp)  SCC  701,  this  Court  prohibited  notice  of

guardianship applications from being issued to the biological parents of a child

in  order  to  prevent  them  from  tracing  the  adoptive  parents  and  the  child.

Although the Guardians and Wards Act was not directly attracted in that case,

nevertheless it is important as it reiterates that the welfare of the child takes

priority above all else, including the rights of the parents.  In the present case

we do not find any indication that the welfare of the child would be undermined

if the Appellant is not compelled to disclose the identity of the father, or that

Court notice is mandatory in the child’s interest.  On the contrary, we find that

this may well protect the child from social stigma and needless controversy.   

14. Even in the absence of Laxmi Kant Pandey, we are not like mariners in

unchartered  troubled  seas.  The  observations  of  a  three  Judge  Bench  of  this

Court in Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 are readily

recollected.   The RBI had refused to accept an application for a fixed deposit in

the name of the child signed solely by the mother.  In the context of Section 6 of

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the  Hindu  Minority  and  Guardianship  Act  as  well  as  Section  19  of  the

Guardians and Wards Act, this Court had clarified that “in all situations where

the father is not in actual charge of the affairs of the minor either because of his

indifference or because of an agreement between him and the mother of the

minor (oral or written) and the minor is in the exclusive care and custody of the

mother or the father for any other reason is unable to take care of the minor

because of his physical and/or mental incapacity, the mother can act as natural

guardian  of the minor and all her actions would be valid even during the life

time of the father who would be deemed to be “absent” for the purposes of

Section 6(a) of the HMG Act and Section 19(b) of the GW Act.”  This Court has

construed  the  word  ‘after’  in  Section  6(a)  of  the  Hindu  Minority  and

Guardianship Act as meaning “in the absence of – be it temporary or otherwise

or total apathy of the father towards the child or even inability of the father by

reason  of  ailment  or  otherwise.”  Thus  this  Court  interpreted  the  legislation

before  it  in  a  manner  conducive  to  granting  the  mother,  who  was  the  only

involved parent, guardianship rights over the child.  

15. In a case where one of the parents petitions the Court for appointment as

guardian of her child, we think that the provisions of Section 11 would not be

directly applicable.  It seems to us that Section 11 applies to a situation where

the guardianship of a child is sought by a third party, thereby making it essential

for  the welfare  of  the child  being given in  adoption to  garner  the views of

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child’s natural parents.  The views of an uninvolved father are not essential, in

our opinion, to protect the interests of a child born out of wedlock and being

raised solely by his/her mother.  We may reiterate that even in the face of the

express terms of the statute, this Court had in Laxmi Kant Pandey directed that

notice should not be sent to the parents,  as that was likely to jeopardize the

future and interest of the child who was being adopted.  The sole factor for

consideration before us, therefore, is the welfare of the minor child, regardless

of the rights of the parents.  We should not be misunderstood as having given

our imprimatur to an attempt by one of the spouses to unilaterally seek custody

of  a  child  from  the  marriage  behind  the  back  of  other  spouse.   The

apprehensions of Mr. Luthra, learned amicus curiae, are accordingly addressed.

16. Section 11 is purely procedural; we see no harm or mischief in relaxing

its  requirements  to  attain  the  intendment  of  the  Act.   Given  that  the  term

“parent” is not defined in the Act, we interpret it,  in the case of illegitimate

children whose sole caregiver is one of his/her parents, to principally mean that

parent  alone.   Guardianship  or  custody  orders  never  attain  permanence  or

finality and can be questioned at any time, by any person genuinely concerned

for the minor child, if the child’s welfare is in peril.  The uninvolved parent is

therefore not precluded from approaching the Guardian Court to quash, vary or

modify its orders if the best interests of the child so indicate.  There is thus no

mandatory and inflexible procedural requirement of notice to be served to the

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putative father in connection with a guardianship or custody petition preferred

by the natural mother of the child of whom she is the sole caregiver.   

17. Implicit  in the notion and width of  welfare of  the child,  as one of its

primary concomitants, is the right of the child to know the identity of his or her

parents.  This right has now found unquestionable recognition in the Convention

on the Rights of the Child, which India has acceded to on 11th November, 1992.

This  Convention  pointedly  makes  mention,  inter  alia,  to  the  Universal

Declaration of Human Rights.  For facility of reference the salient provisions

are reproduced -

Article 1

For  the  purposes  of  the  present  Convention,  a  child  means  every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Article 3

1. In all actions concerning children, whether undertaken by public or private  social  welfare  institutions,  courts  of  law,  administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights  and  duties  of  his  or  her  parents,  legal  guardians,  or  other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3.  States  Parties  shall  ensure  that  the  institutions,  services  and facilities  responsible  for  the  care  or  protection  of  children  shall conform  with  the  standards  established  by  competent  authorities, particularly  in  the  areas  of  safety,  health,  in  the  number  and suitability of their staff, as well as competent supervision.

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Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

Article 9

1. States Parties shall ensure that a child shall not be separated from his  or  her  parents  against  their  will,  except  when  competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect  of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2.  For  this  purpose,  the  child  shall  in  particular  be  provided  the opportunity  to  be  heard  in  any  judicial  and  administrative proceedings  affecting  the  child,  either  directly,  or  through  a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Article 18

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the

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upbringing and development of the child. Parents or, as the case may be,  legal  guardians,  have  the  primary  responsibility  for  the upbringing and development of the child. The best interests of the child will be their basic concern.

Article 21

States Parties that  recognize and/or permit  the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

(a)  Ensure  that  the  adoption  of  a  child  is  authorized  only  by competent authorities who determine, in accordance with applicable law and  procedures  and on the  basis  of  all  pertinent  and  reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;

Article 27

2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development.

4.  States  Parties  shall  take  all  appropriate  measures  to  secure  the recovery  of  maintenance  for  the  child  from  the  parents  or  other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that  of  the  child,  States  Parties  shall  promote  the  accession  to international  agreements  or  the  conclusion of  such agreements,  as well as the making of other appropriate arrangements.

18. In  Laxmi  Kant  Pandey,  this  Court  duly  noted  the  provisions  of  the

Convention on the Rights of the Child, but in the general context of adoption of

children and, in particular, regarding the necessity to involve the natural parents

in  the  consequent  guardianship/custody  proceedings.   The  provisions  of  the

Convention which we have extracted indeed reiterate the settled legal position

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that  the  welfare  of  the  child  is  of  paramount  consideration  vis  a  vis  the

perceived rights of parents not only so far as the law in India is concerned, but

preponderantly in all jurisdictions across the globe.   We are mindful of the fact

that we are presently not confronted with a custody conflict and, therefore, there

is no reason whatsoever to even contemplate the competence or otherwise of the

Appellant as custodian of the interests and welfare of her child.   However, we

would be loathe to lose perspective of our  parens patriae obligations, and in

that regard we need to ensure that the child’s right to know the identity of his

parents is not vitiated, undermined, compromised or jeopardised.   In order to

secure  and  safeguard  this  right,  we  have  interviewed  the  Appellant  and

impressed upon her the need to disclose the name of the father to her son. She

has disclosed his name, along with some particulars to us; she states that she has

no further  information about  him.  These  particulars  have  been placed in  an

envelope and duly sealed, and may be read only pursuant to a specific direction

of this Court.     

19. We are greatly perturbed by the fact that the Appellant has not obtained a

Birth Certificate for her son who is nearly five years old.  This is  bound to

create problems for the child in the future.   In this regard, the Appellant has not

sought any relief either before us or before any of the Courts below.  It is a

misplaced assumption in the law as it is presently perceived that the issuance of

a Birth Certificate would be a logical corollary to the Appellant succeeding in

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her guardianship petition. It may be recalled that owing to curial fiat, it is no

longer  necessary  to  state  the  name  of  the  father  in  applications  seeking

admission of children to school, as well as for obtaining a passport for a minor

child.   However, in both these cases, it may still remain necessary to furnish a

Birth Certificate.  The law is dynamic and is expected to diligently keep pace

with  time  and  the  legal  conundrums and  enigmas  it  presents.   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.   Trite though

it is, yet we emphasise that it is the responsibility of the State to ensure that no

citizen suffers any inconvenience or disadvantage merely because the parents

fail  or  neglect  to register  the birth.   Nay, it  is  the duty of  the State  to take

requisite  steps  for  recording  every  birth  of  every  citizen.  To  remove  any

possible doubt, the direction pertaining to issuance of the Birth Certificate is

intendedly not restricted to the circumstances or the parties before us.

20. We think it necessary to also underscore the fact that the Guardian Court

as well as the High Court which was in seisin of the Appeal ought not to have

lost sight of the fact that they had been called upon to discharge their  parens

patriae jurisdiction.  Upon a guardianship petition being laid before the Court,

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the  concerned  child  ceases  to  be  in  the  exclusive  custody  of  the  parents;

thereafter,  until  the  attainment  of  majority,  the  child  continues  in  curial

curatorship.   Having received knowledge of a situation that vitally affected the

future and welfare of a child, the Courts below could be seen as having been

derelict in their duty in merely dismissing the petition without considering all

the  problems,  complexities  and  complications  concerning  the  child  brought

within its portals.      

21. The Appeal is therefore allowed.  The Guardian Court is directed to recall

the  dismissal  order  passed  by  it  and  thereafter  consider  the  Appellant’s

application for guardianship expeditiously without requiring notice to be given

to the putative father of the child.

………………………………..J. (VIKRAMAJIT SEN)

………………………………..J. (ABHAY MANOHAR SAPRE)

New Delhi July 06, 2015.