“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 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. “
————————————————————————–------------------------------------------------------------------
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.
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 whose personal
differences and animosity has taken precedence over the future of their child.
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.
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
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.
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 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.
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.” 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.
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:
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.
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.
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.
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 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 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.
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 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.
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 tenets of the parties’ religion but in keeping
with legislative intent and prevailing case law.
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.
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 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.
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.
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 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.
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 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.
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 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.
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
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.
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.
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.
Article 7
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
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.
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.
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
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.
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
States Parties shall use their best efforts to ensure
recognition of the principle that both parents have common responsibilities for
the 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
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.
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.
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 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.
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 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.
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, 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.
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.
(VIKRAMAJIT SEN) ………………………………..J
(ABHAY MANOHAR SAPRE) …….J
