Unwed Mothers and Putative Fathers vis-a-vis Guardianship Rights of Children: A Study

Abstract

In the competing interests of unwed mothers, putative father and the child regarding guardianship, the interests of the child is conclusive and gets primacy over the interests, since the parent's interest relates only to the legal obligation towards the child. The law as contained in Sec 7 of the Guardians and Wards Act to declare mother as the sole guardian of her child, subject to notice being given to putative father and mother's refusal to name the father resulted in the rejection of claim to guardianship. However, the disclosure of the name of the father might lead to several difficulties in safeguarding the future welfare of the child, if putative father is already married to another woman. The interest of the minor is subservient to the rights of the child, more so in the case of parent who forsakes his / her duties and responsibilities for the well-being of the child. The need for divorcing religion from law has become a necessary imperative in the interpretation of law by the courts and emphasis being legislative intent and existing case-laws. In this context, the unwed Christian mother requires a status on par with Hindu counter-part. Any decision by the court on the issue of guardianship never acquires finality, more so when any interested party, interested in the welfare of the child can question the decision, when the child's future is in peril. The child has the right to know his paternity as the universal declaration of Human Rights and the convention on the rights of the child provides. Thus, it may be a sufficient to safeguard the rights of the child, if the mother gives the name of the putative father in a sealed cover to be opened when a controversy arises on the issue. The duty of the State is to issue a birth certificate to the mother of the child without insisting for disclosure of father's name.

Keywords: Unwed mothers, Putative father’s rights, Illegitimate child, Rights of the child