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Case Commentary on ABC v/s The State (NCT Of Delhi)

ABC v/s The State (NCT Of Delhi) 2015 SC 609

This study sheds light on the ABC v. State (NCT) case of the Hon'ble Supreme Court, where the parens patriae jurisdiction of the Hon'ble Supreme Court exercised the security of several hapless children in India who were born out of wedlock and abandoned by their fathers In defending the interests of such a child, the Apex court granted the right of an unmarried mother to be appointed as the sole guardian without informing the' deserter' father

The Hon'ble Supreme Court has rescued unmarried mothers by its progressive decision in the cases-ABC v. The State (NCT Delhi).

Under the decision an unwed mother is allowed to apply for her child's sole custody without being needed to give the' mandatory notice' to the father involved. In addition, she may not be forced to reveal against her wish the dad's name. The identity of the father may not be necessary to achieve a birth certificate of the child at the same time.

Facts of the Case
The appellant was a well-educated, successful and financially secure mother She practices the religion of Christianity. In 2010, she gave birth to a male child and raised him without the support or intervention of his putative father. She had filed an application for childcare with the local authority in order to allow her child, her nominee in all her assets and other insurance policies. She was nevertheless told that she had to state her father's name or receive a certificate of guardian / adoption from the Court.

She subsequently demanded that the Guardian Court should appoint her the sole custodian of her son under Section 7 of the Guardians and Wards Act,1890. Section 11 of Guardians and Wards Act requires that a notice be sent to the child's parents before a guardian is appointed Though a notice was made public in a daily local, it was reluctant to notify the father. Nonetheless, she filed an affidavit stating that the guardianship could be revoked or altered if the father objected in the future.

Judgement of the Guardian Court
The Petitioner has invoked the jurisdiction of the Guardian Court and thus filed an application before the Hon’ble Guardian Court. The respective court made the Petitioner aware that unless and until she discloses the father along with the details of the same, the pending application cannot be processed further.

The Petitioner didn’t agree with the version of the Hon’ble Court. She therefore, filed an affidavit mentioning all the arguments that if the father of the minor son does any objection regarding the guardianship of the son, then the guardianship can be altered with due process of law. She with time has published the above mentioned application in a daily newspaper named Vir Arjun, Old Delhi Edition. The Guardian Court while delivering the judgement dismissed her application on the ground of non-disclosure of the identity of the father.

Judgement of the Delhi High Court
High Court was of the view that the appellant was properly suggested and until and unless a notice is issued to the father, she couldn't be declared as single mother and sole guardian. judicature observed tha:
 tho' no although has taken place between the parties, still a natural father may have associate interest within the custody and welfare of the child, that can not be determined in absence of necessary party. whether or not there has been a marriage or not can only be well-known once the natural father is served with a notice to appear before the Court, which isn't turning into attainable because of unfortunate and odd stand of petitioner/appellant that she will not provide the name, particulars and address of the father.

The Court further justified that the Latin phrase Audi alteram partem may be a well-established and basic principle of law that no case ought to be determined in absence of a necessary party to a case. Not hearing a concerned party will encourage be fatal for a case.

Father is unquestionably a necessary party to a case and therefore the petitioner/appellant can't be allowed to induce a decision in her favour simply by impleading the State as a respondent i.e., while not creating the natural father as a respondent within the case and serve him. The petition was dismissed on 08.08.2011.

Judgement of the Supreme Court
The woman appealed the Delhi High Court decision to the Supreme Court of India arguing that there were three reasons not to name the father: she did not want to divulge her identity, because he was at risk of denying paternity, since she was already married; Second, such a disclosure can have an effect on his relatives because of his marital status. Third, she claimed that if she were forced to reveal the name of the father, she would breach her fundamental right to privacy.

In the Supreme Court the State of Delhi opposes to her arguments, arguing that Section 11 of the Guardians & Wards Act, 1890, includes the notice, before the guardian is appointed, of a parent for a child However, the State of Delhi submitted that Section 19 of the Act stated that if the child's father was alive and fit to be appointed as a guardian, a guardian could no longer be named. For those purposes, the State of Delhi submitted that the High Court's decision was correct.

The Supreme Court whereas delivering the final judgement of this landmark dispute accomplished that the grounds on which the Delhi court and therefore the Guardian Court gave its judgement was ne'er a vital feature which is material to the target of Guardian & Objectives Act, 1890 mentioned underneath section seven of the legislation. The legislative objective of such legislation is the utmost well-being of the minor child.

However, the situation wherein a child has born from an unwed couple, then both the Hindu and the Muslim law in India recognizes the mother’s custody as the paramount consideration at this scenario. The Christian law of the country also believes of the fact that the mother is the most suitable parent to take care of the minor in this situation.

The Apex Court of India therefore has always emphasized to the fact that whenever the situation of such arises, the paramount consideration should be for the welfare of the minor with the preference to the mother gaining the absolute custody of the child of such unwed parents.

The Supreme Court thought-about the equivalent laws within the U.K, the united states, Ireland, Philippines, New Zealand and South Africa, and concluded that the predominate was that the unwedded mother possesses primary custodial and guardianship rights with reference to her children which the father isn't conferred with an equal position simply by virtue of having fathered the child.

  • Right to privacy of the mother
    The Supreme Court additionally recognized the right to privacy of a single mother upholding that the same would be violated if she is asked to disclose the name and particulars of the father of her kid against her will.
  • Child’s right to understand the identity of his parents
    But despite all the on top of concerns, the Supreme Court punctually acknowledged the right of a child to understand the identity of his parents. the same was impressed upon the mother within the case at hand. She was forced in an interview to disclose the name and details of the father. however, the information received in that has not been made public. it's unbroken in an envelope duly sealed and should be browse solely as per some specific directions of the court, once within the best interest of the child.
  • Application for issuance of a birth certificate by a single mother
    Above all, the Supreme Court has additionally given directions that─ a single/unwed mother can apply for a birth certificate of a child she gave birth to, simply by furnishing a legal document to that effect. She does not have to be compelled to reveal the identity of the father for the same against her wish.

With this decision, the Hon’ble Supreme Court has laid the founded the true sense of justice, which had been deprived till now. Today, any unwed mom can claim her child's custody for the interim duration unless that child's biological father poses any objections. This judgment has overcome the inequality in society, where the Christian mothers were placed at a disadvantage over the issue of the guardianship of the minor child, in comparison to their Hindu counterparts.

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