We are gradually stepping into a time where the idea of surrogacy is burgeoning in India as there are a lot of women who are choosing to be single parent for their children. However, there are certain hurdles posed by our Indian society in this regard such as furnishing the name and details of the father.

So, now the question that arises is whether a single mother is eligible to give her name at all the places and what exactly is the law for single unmarried mother to raise her child. Originally, the law only recognized the male parent as the guardian for the child and the mother didn't have any right or independent legal status since all the government records demanded the name of the father.

Women are natural guardian and they must be recognized as such. The National Commission for Women (NCW) was of the view that the guardianship rights needs to be reviewed and amended in order to do away with the age long patriarchy. So, the NCW recommended to the Union Ministry of Women and Children Development to modify the laws relating to guardianship which if implemented would be a clear victory for single mothers in India.

We have two major Acts namely, The Hindu Minority and Guardianship Act, 1956 (HMGA) and the Guardianship and Wards Act, 1890 that govern the guardianship rights of a mother, father or a third party. Section 6 of the HMGA states that a father is the natural guardian of the child in case of a wedded couple and it is after the father that the mother's right is recognized. But, in case of a child born out of wedlock, it is the mother who becomes the natural guardian and the father has no accountability or responsibility legally.

So, we can see that Section 6 of HMGA is in clear conflict with Articles 14 & 15 of the Indian Constitution which guarantees equality rights therefore it was called by the NCW to grant equal guardianship rights to both the parents as this step would pave the way for recognition of the rights of single and abandoned mothers and rape survivors with children. It was also recommended to remove the term illegitimate from Section 6(b) taking into consideration the rights of the child and that no child should be considered illegitimate.

As we know a mother is the natural guardian of her child so the stigma attached to an unwed mother or single mother in our society should go. The first step towards doing away with this social stigma is to amend the laws for the better.

The law seemed to have amended with the changing times as the judiciary has contributed to this movement time and again. In the case of Githa Hariharan vs. Reserve Bank of India (AIR 1999, 2 SCC 228) the Supreme Court held that no preferential rights for either of the parents can be given as the welfare of the child is of paramount importance. Section 6(a) of the Hindu Minority and Guardianship Act and Section 19(b) of the Guardianship and Wards Act, the phrase and after him should be read in absence of.

This means that the mother has the sole guardianship rights over the child if the father is not present instead of her getting the rights only after the death of the father.

In a recent plea (X vs State of Kerala & Ors), filed before the Kerala High Court, the Kerala Registration of Birth and Deaths Rules was challenged as far as it mandates the mentioning of father's name to register the birth of the child. It was contended before the Court that such a provision is discriminatory to single mothers.

The facts of the case go like this, the petitioner, in this case, was impregnated through artificial insemination that involves using the sperm of a donor whose identity is kept confidential and was not known to the petitioner as well. The petitioner was married once but she has been separated from her husband and the father of her child is not her former husband. Therefore, she was aggrieved by the requirement of the aforementioned Rules that required giving the name and particulars of the father to obtain a Birth Certificate.

The petitioner contended that a mere reading of forms 1-9 of the Kerala Registration of Birth and Deaths Rules appears to be unjust, arbitrary, and illegal to single mothers and children born to them. The name and details of the donor were anonymous to the woman herself (petitioner in this case). Therefore, it is purely unconstitutional to ask for the details of the father to grant a birth certificate as it violates the right to privacy and equality of the petitioner.

Moreover, it was contended that such a requirement is ultra vires to the Registration of Births and Deaths Act. It would be utter discrimination to the mother of the child if the birth certificate excludes the name and details of the mother and would attract violation of Article 14 of the Constitution.

While deciding upon this case, ABC vs State (NCT of Delhi) [(2015) 10 SCC 1] was relied upon where the rights of a single mother have been recognized by various High Courts as well as the Hon'ble Supreme Court. Thus, it was prayed by the petitioner to remove the space requiring the details of the father from the birth certificates of a child born to a single mother.

The Hon'ble Supreme Court of India in a landmark ruling in the case of ABC vs. State (NCT of Delhi) observed that there is no need for an unwed mother to disclose the identity of the child's father as she can solely be the legal guardian of her child. In this case, a woman had given birth to her son in the year 2010 and had raised him without any support or assistance from the father.

When she applied for her son to make him the nominee to all her savings and other insurances she was asked to furnish the name of the father to get the birth certificate or get a certificate of adoption/guardianship from the Court. So, the judges in this particular case held that In this scenario, the interest of the child would be best served by appointing the appellant (the mother) as the guardian. Furthermore, 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.

This paved the way for single mothers to claim sole guardianship of their children without having to state the name of the father or needing his permission. The Court believed that we are now living in a society where more and more women are considering raising their children by themselves without anyone's support so there lays no point in involving an unconcerned and unwilling father into this as a man who has chosen to abandon his duty cannot be considered as an essential constituent with regards to the well-being of the child. Hence, it was settled that the welfare of the child will not be affected if the mother chooses her right to privacy to be upheld by not disclosing the identity of the father.

The Supreme Court recognized the right to privacy of single mothers and held that disclosing the name and details of the father of a single mother would amount to a violation of her right to privacy. However, the Supreme Court also upheld the right of the child to know the identity of his\her parents but the information shall not be available in the public domain and to be kept private in an envelope duly sealed and can be read only upon the direction of the Court as per the best interest of the child. But, it is not always possible for everyone to approach the Courts to claim their rights for various factors so there is a desperate need for the existing laws relating to single mothers and guardianship to be amended.

References

1. https://www.livelaw.in/news-updates/kerala-high-court-plea-against-fathers-details-for-children-born-to-single-mothers-177996?infinitescroll=1
2. https://www.youthkiawaaz.com/2018/03/right-of-an-unwed-mother/
3. https://www.ndtv.com/india-news/unwed-mother-not-compelled-to-disclose-fathers-identity-rules-supreme-court-778794
4. https://www.barandbench.com/news/litigation/single-mother-moves-kerala-high-court-to-remove-fathers-name-in-birth-certificate
5. https://www.legalserviceindia.com/legal/article-2266-case-commentary-on-abc-v-s-the-state-nct-of-delhi-.html