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Guardianship Law in India: Examining The Principle of the Best Interest of

Minors and the Rights of Single Mothers as Sole Guardians

Article in SSRN Electronic Journal · January 2023

DOI: 10.2139/ssrn.4377809

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 Guardianship Law in India: Examining The Principle of the Best Interest of Minors and
the Rights of Single Mothers as Sole Guardians
Shalu Nigam1
Abstract
Motherhood is glorified in history, literature, mythology, and by the media. Yet, away from the
tenets of equality as promised by the constitution, the guardianship law upheld the rights of
fathers as the natural guardian of the minor and not of the mother. However, these rights of the
fathers are not absolute. This essay analyzes the case law over decades, wherein single mothers
have utilized their agency to knock on the doors of the courts to reclaim their rights using the
principle of `the best interest of the minor’ and in the process have compelled the courts to
interpret the law in a way to appoint mothers as sole guardians of a minor while rejecting the
claims of `unfit’ fathers. It also examines the parameters used by the courts to determine who is
the `fit’ parent, the reasoning used by the courts in doing so, and the way the courts have
acknowledged the diverse family forms in the process. It suggests that the state needs to
recognize the rights of single mothers as equal citizens while doing away with the outdated
concept of heterosexual families or the binary of the legitimate versus the illegitimate child. The
law needs to imagine a reform along with the changing socio-legal and technological
advancements.
Key Words: Single mothers, guardianship law, minor, agency, Guardian and Ward Act, HMGA,
sole guardians, heterosexual family, patriarchy
Introduction
The Hindu mythology, religious scriptures and traditions including the laws of Manu or the
Manusmriti see women as an appendage of a man as a father, a husband or a son 2. (Olivelle,
2004) A woman has no identity of her own as per this paradigm. Further, the Victorian ideology
as introduced by the colonial rulers established the rights of men as fathers. The `Unities
Doctrine’ propounded by William Blackstone in 1765, or the law of coverture assumes that the
legal identity of a married woman is merged with her husband upon marriage and they become
one person in the eye of law3. The Guardian and Ward Act (GWA) enacted in 1890,
theoretically, provide that while appointing the guardian, the welfare of the minor is paramount,
but in practice, it emphasizes on the superiority of the father.

1
The author expresses her heartfelt gratitude to the editor and the reviewer for their valuable insightful comments
that helped to shape this paper. This article is submitted to Indian Journal of Gender Studies on 23.08.2021 and was
accepted for publication on 02.03.2022
2
Olivelle P (2004) The Law Code of Manu: A New Translation Based on the Critical Edition, Oxford University
Press, Oxford.
3
Blackstone William (1769) Of Husband and Wife, Commentaries on the Laws of England Book 1 Chapter 15
http://lonang.com/library/reference/blackstone-commentaries-law-england/bla-115/

1
In the post-colonial India, though the constitution propagated the values of equality and social
justice, these could not alter the rigid patriarchal family structures. The Hindu Code Bill
introduced during 1950s that aims to codify and reform the Hindu personal laws based on the
principles of gender equality could not be passed in the Parliament 4. Subsequently, Dr BR
Ambedkar, the then Law Minister was forced to resign in October 1951 5. The Bill was later
fragmented into four laws by the then Prime Minister Pandit Nehru as the Hindu Marriage Act,
Hindu Adoption and Maintenance Act, Hindu Minority and Guardianship Act and the Hindu
Succession Act. These were passed in between 1952 and 1956. However, according to Section 6
of the Hindu Minority and Guardianship Act (HMGA) 1956, a father is considered as a natural
guardian of a minor and `after him’, the mother. Patriarchy, thus, remained deeply engrained
within the institution of family despite efforts being made legally to restraint it 6.
The patriarchal presumption of a father as a `provider’ and the breadwinner and therefore is
better equipped to handle the role of a natural guardian is utilized during the coding of personal
laws. This assumption puts father in a superior position and mother at a lower pedestal while
ignoring her role as a `nurturer’ and the one who gives birth to a child. Dube 7 explained this
phenomenon of discrimination against a mother as pushed in the socio-cultural imagination
through the concept of a beej (seed) and kshetra (land) where women are seen as passive
incubators or containers and not as the owners of their own wombs. She quoted the Narada
Smriti that prescribes the role of a man and a woman as
“Women are created for offspring; a woman is the field and a man is the possessor of the
seed; the field should be given to him who possesses the seed; a man without the seed
does not deserve a girl”8 (Dube, 1986, p. 24).
As per this theory, the reproductive labor of women is hardly taken into account, women as
mothers in this patriarchal, hierarchical framework have no authority over the lives of their
children. Children belong to father; their identity is construed through men.
Elsewhere, Rich9 in her book titled `Of woman born: Motherhood as an experience and
Institution’ explained that though mothering is a powerful emotional experience that put women
in touch with their bodies, reproduction and their children, yet, the political ideology that
prescribed motherhood as women’s only job is the one that is oppressive. It puts mothering under
male control where men have succeeded to turn mothering into alienated labor. She wrote “the
idea of maternal power has been domesticated. In transfiguring and enslaving woman, the womb

4
Sinha C (2012) Debating Patriarchy: The Hindu Code Bill Controversy in India (1941-56), Oxford University
Press, New Delhi.
5
Guha Ramachandra (2007) India after Gandhi: The History of World’s largest democracy, Harper Collins, Delhi
6
Nigam S (2021) Domestic Violence Law in India: Myth and Misogyny, Routledge, India
7
Dube L (2001) Seed and Earth: The Symbolism of Biological reproduction and sexual relations of production in
Anthropological Explorations in Gender: Intersecting Fields, Sage Publication Delhi p 119-153
8
Dube, L (1986). ‘Seed and Earth: The Symbolism of Biological Reproduction and Sexual Relations of Production’
In Visibility and Power Leela Dube, Leacock and Ardener (Eds.) Delhi: Oxford University Press
9
Rich Adrienne (1976) Of Woman Born: Motherhood as Experience and Institution, Norton, USA

2
– the ultimate source of this power – has historically been turned against us and itself made into a
source of powerlessness”. (p. 68)
Hence, world over, the narrow male-dominated ideological framework of devaluing motherhood
is pushed to promote the normative ideal of a heterosexual family. This framework not only has
failed to see mothering as a powerful experience but it ignored the reality of many women who
have been compelled to raise their children outside the heterosexual families. This constricted
prescription of the patriarchal motherhood could not make a space for the mother outliers or the
diverse ways motherhood is practiced by the widow or abandoned mothers, divorced and
separated mothers, destitute or unmarried women, mothers of the children born out of extra-
marital relationship or those born out of the situation of rape, the children of sex workers, or
situations where men migrate and women solely raise their children. These single mothers on
margins have existed for ages while challenging the hegemonic idea of patriarchal motherhood
and defying the traditional stereotypes while also fulfilling their roles as the sole guardians.
Both the mythology and the history are replete with the stories of single mothers. Mehrotra 10 has
highlighted the story of Jabala who raised her son Satyakama solely and gave him her own
identity. Satyakama later became a disciple of sage Gautama. Similarly, in the epic Ramayana,
Sita raised her twins in the forest when Lord Ram abandoned her knowing that she was pregnant.
Buddha’s wife Yashoda raised their son Rahul single-handedly when Gautama (who after
gaining enlightenment became Lord Buddha) left home. And this phenomenon of single mothers
is being expanding over the ages.
A large number of single mothers are raising their children solely overcoming their agony and
pain, when men as fathers have abandoned or rejected their progeny. Today, many are contesting
in the courts to negotiate their rights as the sole guardians of their children. Utilizing the
principle of the `best interest of the child’, mothers are continuously challenging the proposition
of the superiority of fathers. In the process, the single mothers as the sole guardian and
custodians of minors are shattering the notion of patriarchal families. Rather, with the
technological advancements and introduction of techniques ranging from test tube babies, In-
Vitro Fertilization (IVF), Artificial Reproductive Technologies (ARTs), surrogacy, semen or the
oocytes donors among other evolving technology and also the increased use of the practice of
adoption by the single women or the lesbian mothering, motherhood is seen as a choice, the
concept of single mothering is evolving and is expanding in scope. Accordingly, with the
changing notions of maternity, the guardianship law needs to evolve itself in theory as well as in
practice. However, the administrative or the legal reforms have failed to keep pace with the
social and technological advancements.
Rather it is the single mothers who have been continuously approaching the courts to claim their
guardianship rights compelling the courts to constructively enforce the law to address the

10
Mehrotra DP (2003) Home Truths: Stories of Single Mothers, Penguin, Delhi

3
altering social realities. In 1999, in Gita Hariharan’s matter11, the Supreme Court has interpreted
the Section 6 of HMGA to upheld that a mother can be considered as a natural guardian of a
minor even during the lifetime of the father and in 2015, in ABC vs. State (NCT of Delhi12) the
Supreme Court endorsed the right of an unwed mother as the sole guardian of her child. Since
then, the courts through spate of rulings have nudged the state authorities to take administrative
decisions away from the premise of the normative heterosexual family, as evident from the
amendments made in the Passport Rules in December 2016 whereby a single parent can apply
for the passport on behalf of the minor13. Also, in 2018, the Ministry of Finance has issued a
notification whereby to apply for the PAN card for the minor, an application may be filed with
the mother’s name in case she is a single parent 14. Though these amended rules could not abolish
the patriarchy completely, yet these have paved the way towards women’s empowerment.
Legal Discourse on Mothers’ Right to Guardianship
Law defines a guardian as “a person having care of the person of minor or of his property or of
both his person and his property and includes a 1) a natural guardian, 2) a guardian appointed by
the will of the minor’s father or mother; 3) a guardian appointed or declared by the court and 4) a
person empowered to act as such by or under any enactment relating to any courts of wards. The
Guardianship law involves competing interests of three different parties – the father, the mother
and the child. The law provides that for appointing a guardian, the welfare of minor is
paramount. This is also envisaged in the Convention on the Rights of the Child 15.
However, law also emphasizes superiority of the father in the matter of appointment of guardians
of minor and their custody (Law Commission, 1980) 16. In fact, laws promote the concept of
heterosexual patriarchal families to prioritize the rights of fathers over that of mothers. As per
Section 6 of the HMGA, 1956, the father is considered as a natural guardian of a minor and `after
him’, the mother. It provides that the custody of the child who has not completed the age of five
years, ordinarily, should be with the mother.
Furthermore, Section 6(b) of the HMGA, 1956 makes specific provisions with respect to natural
guardians of the illegitimate children, and in this regard, father has no legal right to guardianship,
it is only the mother who is the natural and legal guardian of an illegitimate child. The
Mohammedan law accords the custody of illegitimate children to the mother and her relations. It
is stated that in such cases, ‘the law follows the principle that the maternity of a child is

11
AIR 1999 SC 1149
12
AIR 2015 SC 2569
13
Ministry of External Affairs (2016) Announcement of new Passport Rules
December 23, https://www.mea.gov.in/press-releases.htm?dtl/27874/Announcement_of_new_Passport_Rules
14
The Economic Times (2018) Father’s name not mandatory for PAN Application in case mother is a single parent,
November 20, https://economictimes.indiatimes.com/news/economy/policy/income-tax-department-does-away-
with-mandatory-quoting-of-fathers-name-for-pan-applications/articleshow/66711062.cms
15
Convention on the Rights of the Child G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (November 20, 1989)
16
Law commission of India (1980) Eighty Third Report on the Guardian and Wards Act of 1890 and certain
provisions of the Hindu Minority and Guardianship Act, 1956, Ministry of Law, Justice and Company Affairs,
Government of India

4
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”17. The rationale for such consideration is that the `paternity’ is a matter
governed by `jus civile’ and maternity by `jus nature’. (Law Commission, 1980, p 41) This logic
recognizes a mother as a natural guardian of an illegitimate child but fails to clarify the fact that
when a mother is capable enough to be recognized as a lawful guardian of an illegitimate child
than how her competence be questioned as a lawful guardian of a legitimate child. A mother’s
relation to the child remains certain irrespective of the status of the child. These inherent
contradictions in law have remained unanswered.
Moreover, though the fathers have frequently been using the children as a pawn in the situations
of domestic violence, and in the separation or the divorce cases, to emotionally and mentally
pressurize a woman18, yet the rights of a father as a natural guardian of a legitimate child are not
absolute. The welfare of child is paramount while deciding who may be considered as a `fit’
person to be considered as a natural guardian and a custodian of a minor 19. It is being argued that
the courts construe guardianship `not through biological relatedness or intentionality but through
the parameter of labor of parenting’20. This essay shows that courts have evolved broad
parameters to construe guardianship.
The Judicial Interpretation of a `Fit and Unfit’ Guardian
Analyzing several judicial decisions, over the years, shows how the courts have evolved the
parameters of `fitness’ as a guardian of a minor, as to who can be considered as a guardian and
what ought to be deemed as best interest of a child. Judicial interpretations of `fitness’ involve
father’s morality and conduct, and his behavior (in cases where a man has been involved in
criminal charges, the courts have denied him guardianship right) A father may be deemed `unfit’
because he may not be economically well off, is a person of unsound mind, is harsh in his
behavior, or has been living separately for several years without taking interest in the affairs of
minor or if father has married another woman. A mother’s financial abilities are ignored in
several cases to appoint her as a guardian while recognizing her natural love for the child. The
cardinal principle is that a minor cannot take care of itself so that the State as pater patriae has
powers to take actions necessary for his/her protection.

While adjudicating on the question of the rights of parents, the courts have upheld the fact that a
guardian's claim to the custody of a child is not a right in the nature of property, but it is a right
in the nature of trust for the benefit of the minor. (Bhagwatibai v. Yadav Krishna21). For

17
ABC vs. State (NCT of Delhi), AIR 2015 SC2569 para 7
18
Nigam S (2019) Women and Domestic Violence Law in India: A Quest for Justice, Routledge, India
19
Kumar A (1975) Guardianship and custody of a minor child – conflicting claims, Journal of Indian Law Institute
17(2) 299-311
20
Mandal S (2019) Biology, Intention, Labor: Understanding Legal Recognition of Single Motherhood in India,
Socio-Legal Review, 15: 131-150
21
AIR 1969 Madh Pra 23

5
instance, in 1914 in Annie Besant v. Narayniah22 the father had accepted an offer made by the
defendant mother to take charge of their two sons for educating them in England. He was
dissatisfied later on with that arrangement, so he wanted to get back the custody of children. The
court dismissed the plea of father in the interest and welfare of the children.

In other words, though a father is recognized as a natural guardian as per the law, yet, he cannot
claim an indefeasible right to the guardianship or to the custody of the child (Rosy Jacob v.
Jacob A. Chakramakkal)23. In Kaliappa Goundan v. Valliammal24 (1949) the district judge,
Coimbatore appointed the mother as a guardian of the minor giving the father the visitation
rights. On appeal by the father, the Madras High court held that “though father is the natural
guardian of the Hindu child, if the mother is suitable and living, it is impossible to find an
adequate substitute for her for custody of the child of tender years, and it is in the interest of the
child, whose interest should be the paramount consideration with Courts, that the mother should
have the custody”. In Mohini Devi v Virendra Kumar25 the court while keeping the welfare of
11-year-old male child paramount declared mother as his guardian on the ground that the
“child’s welfare is financially and affectionately safe in the hands of the mother”. In other cases
too, the mother's custody in preferred to that of the father. (Snehlata Mathur v Mahendra
Narain26 and Khurshid Gauhar v. Siddiqunnissa27).
A mother is also considered to be a natural guardian of the daughter when the father had failed in
his responsibility of taking care of the child (Jijabai Vithalrao Gajre v Pathankhan) 28. The courts
have denied custody to the father in cases where he has deserted the mother (Sunil Kumar
Chowdhary v Satirani Chowdhary)29. In several cases, the guardianship and custody has been
denied to the father because he has failed to take interest in the child’s welfare and could not
provide for her maintenance. In Gokal Nath v Krishna Devi30 the court stated that “The evidence
on the record shows that the appellant took no interest in the welfare of the children nor did he, at
any stage after the wife had left him, ever make any attempt to provide an allowance for their
maintenance and education or make those gestures by way of love and affection which a father
commonly bestows upon his children even though separated”. The courts have given due
weightage to the child's ordinary contentment, health, education, intellectual development,
suitability and favourable surroundings over and above his or her physical comforts (Mausami
Moitra Ganguli v. Jayant Ganguli31; also, Roxann Sharma v Arun Sharma 32).

22
(1914)16 Bom LR. 625, PC
23
1973 AIR 2090
24
(1949) 1 MLJ 248
25
AIR 1977 SC 1359
26
AIR 1979 Raj 29
27
AIR 1986 All 314
28
AIR 1971 SC 315
29
AIR 1969 Cal 573
30
AIR 1973 HP 79
31
(2008) 7 SCC 673,
32
(2015) SCC 318

6
In cases where the father has remarried, the courts have ruled that this situation may affect the
interest of the child as a step mother cannot be expected to act in the interest of the minor. (Bai
Tara vs Mohanlal Lallubhai33) In Saraswatibai Shripad Ved v Shripad Vasanji Ved34 the
Bombay High Court clarified that “the father of the minor has married again. That in itself may
not be a ground for depriving him of the custody of his minor child. But the Court has got to
consider all the circumstances of the case, and taking human nature as the same here as
elsewhere, a step-mother cannot be expected to be very much interested in the welfare of a minor
step-son, nor likely to give him the attention, love and sympathy which the child naturally
requires”.

The question of morality and conduct of the father was also raised in several cases in deciding
the question of custody or access. (Elizabeth Dinshaw v AM Dinshaw 35, and Gaurav Nagpal v.
Sumedha Nagpal)36 The Supreme Court in Surindar Kaur Sandhu v Harbax Singh
Sandhu37 while examining the conduct of the father stated, “On the whole, we are unable to
agree that the welfare of the boy requires that he should live with his father or with the grand-
parents. The father is a man without a character who offered solicitation to the commission of his
wife's murder. The wife obtained an order of probation for him but, he abused her magnanimity
by running away with the boy soon after the probationary period was over…..The father is made
of coarse stuff. The mother earns an income of $100 a week, which is certainly not large by
English standards, but is not so low as not to enable her to take reasonable care of the boy”. In
Bimla Devi v Subhas Chandra Yadav `Nirala38, the Court held that the normal rule of father as a
natural guardian may not be followed if he is alleged to have committed murder of his wife. In
such case, appointment of the grand-mother as guardian of the minor girl is not contrary to law.

In several matters, the contest for custody of minor came up between the father and the maternal
relations of the child. Keeping in view the best interest and welfare of the minor, the courts have
declined to entrust the custody to father (L Chandran v Venkatalakshmi39, Baby Sarojam v S.
Vijayakrishnan Nair40). In Kirtikumar Maheshankar Joshi v Pradipkumar Karunashanker
Joshi41, Tara Devi v Mahaveer Singh42, Gangabai v Bherulal43 Nil Ratan Kundu v Abhijit
Kundu44 and several other cases, the court have subordinated the father's claim to that of the

33
(1922) 24 BOMLR 779
34
(1941) 43 BOMLR 79
35
(1987) 1 SCC 42
36
2009 (1) SCC 425
37
1984 AIR 1224
38
AIR 1992 Pat 76,
39
AIR 1981 AP 1
40
AIR 1992 Ker 277
41
(1992) 3 SCC 573
42
AIR 1997 Raj 87
43
AIR 1976 Raj 153
44
(2008)9 SCC 413

7
maternal relations and have granted the custody of children to the maternal grandparents or
maternal uncle. Also, in cases, where the child has been living with his maternal relations and the
father had not even seen him and almost estranged himself, or there is no competent female
relation living with father to take care of the child while on the other hand, the maternal relations
have strong affection for the child, the custody of the child is refused to the father.

In Budhulal Shankarlal45 the infant was looked after by the neighbours on the death of his
mother. The court declined to disturb the custody of his foster parents on the ground that the
father was all alone and there was no female member residing with him. However, the courts
generally do not interfere with the father's right in the exercise of his paternal authority except
where (1) by his gross moral turpitude or rowdy behavior, he forfeits his right; (2) he has
abdicated his paternal authority; and (3) he seeks to remove his children being wards of court out
of the jurisdiction without the consent of court.

In short, while examining decisions pertaining to the guardianship and custody rights as
interpreted by the courts over decades it may be said that a father’s right to the guardianship and
custody of a minor is not absolute. Since, the colonial era, the parameters that have been evolved
by the courts include the moral conduct and behavior of the parties, the guardian’s abilities,
presence or absence of female members, presence of the stepmothers, abandonment of a child by
the father, or natural affinity of the minor towards mother or maternal relations among others.
However, some scholars have raised issues regarding clarity of the use of the principle of best
interest of a child46, and the varied subjective interpretation by the courts based on the notion of
judges about an ideal parenthood47. It is argued that frequent brushing aside of allegation of
sexual abuse of children by male relatives as welfare standards are not clearly laid down 48.

Law Commission on Section 6 of the Hindu Minority and Guardianship Act, 1956
The Law Commission of India its 83rd Report49 in 1980, and also in its 133rd Report50 in 1989
made recommendations to give equal access to both the mother and the father in respect of minor
and his/her property while upholding the interest of minor. In its 257 th Report in 2015 on
‘Reforms in Guardianship and Custody Laws in India’51 the Commission again recommended
amendments in the Section 6 of the HMGA to eliminate superiority of one parent over another
while upholding the interest of minor. However, on the recommendations by several men’s

45
AIR 1971 MP 235
46
Bajpai A (2005) Custody and Guardianship of children in India, Family Law Quarterly, 39(2) 441-447
47
Parashar A (2003) Welfare of Child in family laws – India and Australia, NALSAR Law Review, 1(1) 49
48
Agnes F (2011) Family Law II: Marriage, Divorce and Matrimonial Litigation, Oxford University Press, Delhi
49
Law Commission of India (1980) The Guardian and Ward Act of 1890 and certain provisions of the Hindu
Minority and Guardianship Act, 1956, Report No. Eighty Three, Ministry of Law and Justice, Government of India
50
Law Commission of India (1989) Removal of Discrimination Against women in matters relating to Guardianship
and custody of minor children and elaboration of welfare principle, Report No. 133, Ministry of Law and Justice,
Government of India
51
Law Commission of India (2015) Reform in Guardianship and custody Laws in India, Report No. 257, Ministry of
Law and Justice, Government of India

8
group, it has also introduced the concept of shared parenting without dwelling on the concerns
relating to domestic violence and child support. This is despite the fact that the research
elsewhere on shared parenting has been critiqued based on the impact of joint custody on the
wellbeing of the minor52. However, despite recommendations to undo the superiority clause
being made over the years, no significant steps have been taken to alter the legal text.

Yet, women as mothers are continuously knocking the doors of the courts to claim their right to
guardianship of their children and in the process, are consistently challenging the patriarchy 53.
This is despite the problems women face in filing and contesting the court cases, the hostile
atmosphere in the courtrooms, high cost of litigation, absence of support mechanism, the biased
attitude of law enforcers, the delay in adjudication, corruption, the lackadaisical approach of the
administrative staff so on54. Single moms, through their persistent actions have compelled the
courts to interpret the law to uphold the welfare of the minors.

Why single moms are claiming guardianship rights?

The analysis of cases shows that for more than a century, single moms are litigating in the courts
claiming their rights to guardianship and custody of their children. Most of them have been
compelled by their circumstances because men as fathers have failed to fulfill their obligations or
because the bureaucracy has created hurdles in some or the other way by sticking to its
conservative approach or the mindset. The courts in several cases have responded constructively
to evolve and expand the right to guardianship in favor of the mothers. For instance, in Gita
Hariharan’s judgement in 1999, as well in ABC’s case (2015) that the courts have specifically
clarified the legal provisions that mother could be considered as a natural guardian even during
the lifetime of a father.
Affirming the Rights of Mothers as Guardians of the Minor
It is in 1999, in Gita Hariharan v RBI55 that the Supreme Court while relying on Jijabai
Vithalrao Gajre56 and by recognizing the international law provisions as enshrined in the
Universal Declaration of Human Rights and the Convention on Elimination of All Forms
Discrimination Against Women noted that the word `after’ in Section 6(a) of the HMGA to be
interpreted as `in the absence of’ rather than after the death of father. In this matter, first petition
was filed by Gita Hariharan, a mother who wanted to purchase bonds in the name of his minor
son with herself as his guardian. However, the bank asked her to get the signature of father. In

52
Jaffe PG, JR Johsnton, CV Crooks and N Bala (2008) Custody disputes involving allegations of domestic
violence: Towards a Differentiated approach to parenting Plan, Family Court Review, 46(3) 500-22; Also, Turkat ID
(2002) Shared Parenting Dysfunction, The American Journal of Family Therapy, 30(5) 385-393
53
Nigam Shalu (2017) Fighting for Justice in Patriarchal courts, countercurrents.org, August, 30,
https://countercurrents.org/2017/08/fighting-for-justice-in-the-patriarchal-courts/
54
Singh Kirti (2013) Separated and Divorced Women in India: Economic Rights and Entitlements. Sage
Publications, Delhi
55
AIR 1999 SC 1149
56
AIR 1971 SC 315

9
the second petition by Vandana Shiva, a mother claimed the custody of her minor son
challenging the same discriminatory provision. The Supreme Court held that if father is absent in
a child’s life either on account of his apathy or indifference, mental inability or physical
incapacity, or because of agreement between parents, a mother can be a considered as a natural
guardian of a minor even during the lifetime of the father. Rather than declaring this clause as
unconstitutional and contrary to the provisions of equality, the Court utilized the technicalities to
read down the inequitable provision.

Evoking the concept of Maa (Mother) and Mamta (Maternal Love) to recognize the rights
of single mothers
Further, in 2015, in ABC vs. State (NCT of Delhi)57, the court further expanded the scope of
rights of single mothers when a Christian unwed mother approached the court to declare herself
as the sole guardian of her minor son. She wanted to make her son a nominee in her financial
documents without making his genetic father, a married man, involve in the process, or to reveal
the identity of the father. But she was asked to submit a declaration that she is a sole guardian of
her child. The matter reached the Supreme Court, which while evoking the concept of maa and
mamta noted “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”. While
upholding the rights of the single mothers, the Court held that 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”. The Court also rebuked the father who remained uninvolved in
the life of his own child and noted, “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…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”. The court thus expanded the legal provisions under the GWA to prioritize the
rights of single mother and her child over the rights of an absent and uninvolved father.

These decisions have acted as a springboard to open a way for other single mothers to demand
their guardianship rights. Moreover, in Shalu Nigam v Regional Passport Officer58 in 2016, the
father abandoned his offspring because she is a girl child. The court in this case expanded the

57
AIR 2015 SC 2569
58
Shalu Nigam v Regional Passport Officer, (2016) 230 DLT 473

10
rights of single mothers while recognizing the fact that a mother’s name is sufficient to apply for
the documents such as passports and that “a single woman can be a natural guardian and a
parent”. The court further observed that, “This court takes a judicial note of the fact that families
of single parents are on the increase due to various reasons like unwed mothers, sex workers,
surrogate mothers, rape survivors, children abandoned by fathers, and also children born through
IVF technology”. As an aftermath to this decision, a three-member panel was constituted that
submitted its report to the Ministry of External Affairs and in December 2016, the Ministry
announced new rules based on recommendation by the panel to allow only one parent to be listed
in the passport application59.
The fine reading of several of the above-mentioned cases shows how single moms are being
forced to negotiate with the Kafkaesque bureaucracy at each and every step to omit the name of
absent father on the official documents relating to their children. The case laws depict that the
frequently, the bureaucracy including the clerks and the officers, the school administration
officials, the passport officials and others were adamant and insisted to put father’s name on the
child’s documents even if the women are solely fulfilling the responsibility of bringing up the
child. In all such cases, therefore, a question may be raised as to why the bureaucracy insists on
preserving the heterosexual family forms and hence the male supremacy? Also, by merely
donating his sperm and not fulfilling his responsibilities of bringing up a child, can a man be
entitled to the claim of being a father?
Being a father implies not only fulfilling emotional, financial, moral, or social responsibilities
towards a child but it also entails showering love and affection and more importantly to hold the
hands of a child in all situations. More than a question of a mere absent `parental labor’, it is the
acceptance of one’s commitments and responsibilities towards a life that one brings into the
world. Intentional and willful abandonment by a father implies not only depriving the child of
the fatherly affection but it also put her into a vulnerable situation where she is exposed to
stigma, guilt and humiliation at a tender age. The child suffers due to the absence of the father
because, first, she cannot understand what has happened, second, she is not in position to
understand why she is being treated differently as compared to other children around her in the
school or in the society, third it entails, exposing her to emotional trauma that she faces when she
sees children around her are enjoying the company of their fathers and, fourth, people around
may make a child feel humiliated by asking unnecessary questions. Ironical is that it is not the
wrong action of the father who abandoned the child is being questioned but it is the mother and
the child who are being targeted by the society. The society stigmatized the woman as being

59
Gupta Moushmi Das (2016) Norms Eased for Single Moms to get Passport for the Kids, The Hindustan Times,
September 25, https://www.hindustantimes.com/nation-newspaper/norms-eased-for-single-moms-to-get-passports-
for-kids/story-ZWMNAHLaTbkomdriv7BXMJ.html

11
unworthy and binds the child into the chains of binaries relating to legitimacy without
questioning the unlawful actions of a man who is responsible for creating such situation 60.
Also, in all such cases, where a father has abdicated his obligations towards his children, the
application of the traditional theory of `beej’ and `kshetra’, or the relevance to derive the child’s
identity through the `father’ when he remained completely `missing’ or `absent’ from her life,
appears to be redundant. Comparing a human life with the seed or the field as explained in the
Narada Smriti, could not be rationalized in the changing world. Perhaps, the immense
possibilities of a human mind to dream, imagine, or aspire cannot be reduced to a merely a seed
and the field. Moreover, in the age of the semen, oocytes or the gametes donors and use of
techniques such as IVF or ART are being legalized 61, this theory seems to have lost its relevance.
Hence, in situations where fathers remained completely absent, uninvolved or uninterested, it is
pragmatic to uphold the mother’s right to be the sole guardian of the minor, when it is the
mothers who are fulfilling the role of both the parents while catering to the emotional, financial,
social and other needs of a child besides taking decisions regarding welfare of the minor.
Perhaps, these are some of the reasons that women are approaching the courts to demand their
rights to be declared as the sole guardian of the child or to omit the father’s name in the child’s
documents such as passports, birth certificates, school certificates and so on. These single moms
have compelled the courts to direct the state to amend the age-old orthodox rules to pave the way
for gender equality in terms of guardianship rights.
Pragmatic demands to compel courts to take the constructive approach
In catena of cases, mothers and children have applied for the deletion of biological father’s name
from the documents of children. For instance, in Prerna Katia v Regional Passport Officer62,
based on the agreement between the parents at the time of divorce, the mother as a sole custodian
applied for the altering the surname of her daughter. The Punjab and Haryana High court held
that father has virtually disowned the daughter and therefore directed the passport office to issue
the passport without mentioning the surname of the father. In Kavneet Kaur v Regional Passport
Officer63 a daughter applied for passport with the request to omit the name of her biological
father with whom she has no memories. In Diya Ahlawat v Union of India64, a daughter
requested for the issuance of her passport with the name of her stepfather while omitting the
name of the genetic father because the later deserted the petitioner and her mother. Similarly, in
Mohit v Union of India65, and Mohd Armaan v Union of India66, in both the cases, a son
requested to insert his stepfather’s name instead of the name of the biological father. The courts

60
Nigam S and J Nigam (2016) A Quest of Identity: From Personal to Political, countercurrents.org, June 24,
https://countercurrents.org/2016/06/a-quest-for-identity-from-personal-to-political/
61
The Assisted Reproductive Technology (Regulation) Act, 2021, No. 59 of 2021
62
Prerna Katia v. Regional Passport Office, CWP 26805 of 2015, decided on August 5, 2016 (P&H).
63
2014 SCC Online Del 3884
64
CWP 25993 of 2017 decided on 09.3.2017 (P&H)
65
2016 SCC Online P&H 10157
66
LPA 249 of 2016 decided in 23.01.2017 P&H HC

12
have allowed these petitions while recognizing the constructive role of a parent being fulfilled by
the stepfather. Using the logic of abandonment and rejection by the genetic father, the courts in
these cases have upheld the pragmatic demands made by the petitioners using the moral and the
social reasoning.
The discriminatory provisions in the Registration of Births and Deaths Act, 1969 have also been
challenged. As per this law, the Registrar issues the birth certificate to a person bearing her
name, sex and date of birth along with the name of parents being mentioned on it. In Mamta
Swami v State of Rajasthan67 the petitioner after obtaining divorce by mutual consent applied to
issue a fresh birth certificate of her child omitting the name of the father. However, the officials
insisted that she should get the signature of father. The court noted, “To ward off denial of Birth
Certificate to the single-parent or unwed mother or woman, a direction is, hereby, issued to the
State of Rajasthan to amend rules and issue necessary instructions that as and when single
parent/unwed mother or woman apply for grant of Birth Certificate, such Certificate ought to be
issued without causing unnecessary hurdles”.
In several other cases, mothers and children have applied for the removal of the name of absent
parent from the child’s document because fathers remained not only uninvolved but were
unconcerned in the life of child. Besides sentimental, there are pragmatic concerns too. For
instance, in R Gayathri v Regional Passport Officer68, CE Liby v Regional Passport Officer 69 and
in Divya Nagpal v Union of India70 the children needs to submit the documents to the foreign
universities for seeking admission in the courses of their choice and the courts while keeping in
mind the prospect of the children’s future have allowed the petitions to avoid technical hassles
and also to prevent any confusion in the identification of the petitioners in the view of different
names or identities reflected on different documents such as birth certificate, Aadhar card, school
certificate, passport and so on.

Hence, beyond recognizing the labor of parenthood, the courts are gradually being compelled by
the mothers to duly recognize the impact of an absent father on the child’s holistic development
while focusing on the welfare of a child. For instance, in 2021 when a father demanded the court
to direct to the concerned authorities to reflect his name as his daughter’s surname in place of her
mother’s surname, the Delhi High court in Vindhya Saxena v East Delhi Municipal
corporation71, rejected his plea and observed that every child has a right to use his/her mother’s
surname; also, the father does not own a daughter in order to dictate her to use only his surname.
The New technology and Motherhood as a choice

67
SB CWP 5422 of 2016 Rajasthan HC decided on 22.09.2016
68
WP 14182 of 2013 Madras HC
69
WP(MD) 12767 of 2014 decided on 23.06.2015 Madras HC
70
CWP 7892 of 2020 Decided on 16.07.2020
71
Thapiyal N (2021) Father does not own a daughter: Every child has a right to use mother’s surname: Delhi High
Court, The Livelaw.in, August 6, https://www.livelaw.in/news-updates/delhi-hc-says-every-child-has-right-to-use-
mothers-surname-179032

13
Further, with the technological developments, new challenges are emerging that requires
alteration in the old-style working of the bureaucratic maze. In 2018 in Mathumitha Ramesh v
Chief Health Officer72 the petitioner separated by the mutual divorce, gave birth to a daughter
through intrauterine fertility treatment with the help of a semen donor. However, in the birth
certificate the name of someone present at the time of treatment was recorded as the child’s
father’s name. The petitioner applied for the rectification in the birth certificate which was
declined by the respondent. On appeal, the court ordered the Health Officer to make suitable
correction and noted, “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 apply 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”.
In Bhavika Jayant Lohar v Mumbai Municipal Corporation73 and also in Harshala v Bombay
Municipal Corporation74 the petitioners, both single mothers, claimed that they are unmarried
mothers who delivered their babies through the IVF technique using the sperm of an unknown
donor. However, the Municipality has mentioned the name of unrelated persons as the father in
both the birth certificates issued by it. The court in both the cases ordered the Municipality to
issue the birth certificate of the children without mentioning the father’s name on it.
Such cases show how the concept of mothering by single women is evolving gradually over the
years. Earlier, mothers were compelled by their circumstances approached the courts for their
guardianship claims, but now with the advent of techniques such as IVF, surrogacy, ARTs and
other technicalities, and with the changing socio-cultural norms, motherhood is becoming a
matter of choice75. (Nandy, 2017) The analysis also shows how the bureaucratic machinery has
completely failed to keep pace with the technological or the socio-legal changes and therefore,
single mothers are forced to approach courts to claim their rights. It is therefore suggested that
the law needs to acknowledge the agency of single mothers that is socially transformative
resulting in changing family forms while denting the age-old rigid patriarchal structures.
Marching Towards Liberation
Green76 (2004) argued that within the patriarchal motherhood “there is a room for women to
practice agency, resistance, invention and renewal”. Similarly, it may be said here that the single
mothers who are contesting for their rights against all odds are challenging the orthodox notions
while denting the patriarchy. It is the through their persistent determination that single mothers
72
WP MD 8319 of 2018 Madras HC decided on 11.06.2018
73
WP(L) 293 of 2018 Bombay HC decided on 4.4.2018
74
WP 723 of 2017 decided on 13.3.2018
75
Nandy A (2017) Motherhood as choice: Uncommon Mothers, childfree women, Zubaan, Delhi
76
Green Fiona (2004) Feminist mothers: Successfully negotiating the tensions between motherhood and mothering
in Mother Outlaws: Theories and Practices of empowered mothering, edited by Andrea O’Reilly, Women’s Press
Toronto p. 35

14
as agents of change are constantly approaching the courts to claim their rights as the guardians
and are shaping the guardianship law. Despite facing various odds, including the bureaucratic
hurdles, lack of resources, cost of litigation, absence of support, hurdles by families, stigma or
pain, the individual experiences of women show that the potential of law may be geared to create
a democratic and egalitarian world.
When the efforts made by legal reformers to codify the personal laws, or the activism by the
women’s movement could not alleviate the status of women, at the ground level, it is due to the
persistent intervention by the women themselves who utilized their agency have compelled the
courts to recognize their guardianship rights and to liberally interpret the law to uphold the
symbiotic interests of mother and the child as important.
Moreover, it is due to persistent claims being made by the single mothers that they could compel
the courts to uphold the premise of the ‘best interest of child’ while also linking it to range of
factors that determine who could be a `fit’ guardian where more than the rights of the father or
the mother, the focus is being laid on the proper care and upbringing of the minor as a
responsible citizen. The issues relating to abandonment or rejection of the minor by a parent are
being considered as a serious by the courts. Also, the courts have out rightly rejected the notion
of linking economic status of a parent to the guardianship claim in some cases.
The need is that the bureaucracy including the government officials should recognize the odds
women face as single mothers and while issuing the relevant documents of the child, should
create a smooth passage, away from the stereotypical notion of the heterosexual family. The
bureaucracy needs to take note of and respect the principles laid down by the courts as described
above, so that the procedure becomes easier for a large number of women who are not in position
to approach to the courts for various reasons.

Further, the changing socio-economic situation and the altering family forms demands that
suitable amendments may be made in the guardianship law to recognize the rights of both the
mother and the child. Away from the normative ideals of heterosexual families, the need is to
legally recognize the diverse family forms. Also, the law needs to do away with the outdated
concept of the legitimate or the illegitimate child to imagine an alternate concept of parenthood.
While acknowledging the fact that female-headed households are increasing in number over past
few years, the state should formulate the laws and policies to uphold the rights of single mothers
as legal guardians and equal citizens to consider them as partner in the development of the
society. The need is to create a vision for an egalitarian and a just society.

Shalu Nigam is an advocate, researcher, and activist working at the intersection of gender, law,
governance, and human rights issues. Her publications include The Founding Mothers: 15
Women Architects of the Indian Constitution (coauthor, 2016), Women and Domestic Violence
Law in India: A Quest for Justice (2019), and Domestic Violence Law in India: Myths and
Misogyny (2021). She has been a regular contributor to countercurrents.org and has published

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 essays in journals such as the South Asia Journal, Social Action, International Journal of Gender
and Women’s Studies, and Legal News and Views.

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