SOCIO- LEGAL STATUS OF UNWED MOTHERS
Abstract
“Family is a kinship unit and that even when its members do not share a common household; the unit may exist as a social reality.” – UNESCO[1]
In most societies, motherhood out of wedlock is seen as a threat to social structure. Unwed mothers are rejecting the existing social hierarchy and are hence, viewed with distrust. Social discrimination makes make it difficult for an unmarried mother to find employment, child care and housing. This increases her burden of responsibility, and, due to the demands on her time, contributes to her social exclusion. The mother is more often than not forced to acknowledge the father while conducting any official business with respect to the child. Due to this, there are multiple legal hurdles they are forced to face such as that of Legal Custody. Another huge hurdle faced is with respect to guardianship. This paper seeks to analyze the social status of women and also, analyze the laws concerning guardianship. It highlights the existing imbalance of power between the father and the mother due to the nature of current legislations. The paper highlights what the laws with respect to guardianship were and how it has evolved over the years by virtue of judicial interpretation at the hands of the Courts and also due to legislative enactments and amendments. This paper will, therefore, deal with the socio-legal status of unwed mothers in the existing patriarchal nature society.
Key Words: socio-legal, unwed, mothers, laws, judiciary.
Social Status of Unwed Mothers
The word “unwed mother” refers to women who have children outside of the legal framework of marriage. They, along with their “illegitimate” offspring, are one of the many legally and socially disadvantaged groups of people. It also means those who are legally separated by virtue of divorce or are currently widowed. Society’s view of unmarried mothers has undergone cycles of change during the past decades. Prior to the 1930s, an unmarried mother was seen variously as mentally defective or as the product of a bad environment. Thereafter, attention was focused on cultural determinants.[2] In the 1940s psychiatric interest in unmarried motherhood started social work in the direction of its present-day thinking. Current social work literature dealing with unmarried motherhood indicates a continued tendency to view illegitimate pregnancy as, acting out of unconscious fantasies.[3] Typically, an unwed mother’s family will reject her once they learn of her pregnancy. This is a regressive practice that prevails due to the prevalence of a patriarchal structure in society. More often than not, she will be forced out of the household and will be left with no other choice but to fend for herself and her child. This in turn, will overburden the single mother not merely in economic terms but also, in having to deal with the pressures of society at the same time. The generic social illegitimacy is that illicit births are regarded as a threat to the structure of society. The societal preference for procreation only within marriage, or some form of socially recognized and regulated relationship between the sexes, is reinforced by laws and customs which legitimatize coition as well as births and demote some responsibility for the rearing of children.[4]
A single mother’s character is often judged in society. There exists a social stigma attached to being a single mother in India. In our society, children out of wedlock are not respected and thus, the situation becomes worse for an unmarried mother. In routine tasks like school admission, opening bank accounts, admission to a hospital, getting a passport etc. the father’s name is required. This becomes the cause of mental harassment and denial of service. Unwed mothers frequently isolate themselves from society due to fear of shame created by virtue of the social stigma of having a child out of wedlock. Many of these women become subject to various forms of discrimination, for example, discrimination at the workplace. Due to this, arise one of the main problems of unwed mothers i.e., are the financial constraints. It can become difficult for the mothers to meet the basic needs of children such as food, clothing and school fees, maintaining the previous standard of living and meet personal expenses, with the situation of economic problems and limited resources. They have to support themselves as well as their child from a single source of income. Due to the tight budget, a single parent cannot provide their child with the facilities they require. Society belittles women and has the widely held belief that a woman’s position is in ideally at home itself, assuming that a woman is born to live under the rule of her father, or her brother, and later on that of her husband. The result of this belief is that a woman remains dependent on her father’s or her husband’s legal documents.[5] The conservative legal, social and religious context surrounding women’s rights and sexuality means that many issues have been considered too sensitive to address openly and directly. Live-in-relationships, premarital sex and increasing divorce cases are possibilities that could have given rise to the number of single mothers in the country.
Traditionally, Indian culture has placed a greater focus on the “ideal family headed by father” (patriarchal head) than on individual choice. The patriarchal culture has yet to adjust to the idea of single mothers, despite the global current of transition. Single women, whether they are married or unmarried, are seen with suspicion and are thought to be incapable of managing relationships. Sigle mother are also often discriminated against in career opportunities. A contributor to the current social situation of unwed or divorced mothers could be the existence of laws that favour a patriarchal society.
Legal Status of Unwed Mothers
Article 2 of the Universal Declaration of Human Rights[6] provided that everybody is entitled to all rights and freedom without distinction of any kind whatsoever such as race, sex or religion and the ratification of the convention for the elimination of all forms of discrimination against women by the United Nations Organization in 1979 and subsequent acceptance and ratification by India in June 1993 also amply demonstrate the same. The Preamble of the Constitution of India states that “we the people of this country gave ourselves a written Constitution, the basic structure of which permeates equality of status and thus negates gender bias.”[7] Single parents experience additional role strain as a parent. The situation is such that the single parent has to carry out not only their role but also the additional role of their spouse. Additionally, the role becomes even more daunting if the single mother has not worked before. The most common type of single-parent family is one that consists of a mother and her biological children with close to 70% of the single parents being women.[8] In addition to the social ostracism the woman receives, she is also subjected to a legal bias.
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Guardianship
For many years now, the father has been considered as the sole guardian of the person and property of the child. A mother did not have any authority over children, since women did not have independent legal status; their identities being forged with that of their husbands upon marriage.[9] This can be traced to the Doctrine of Coverture which is a legal doctrine by virtue of which, upon marriage, the legal rights of a woman get subsumed by the rights of the husband, in accordance with her status as feme covert (married woman). This is as opposed to her status of feme sole whereby, she exercised full control over her legal rights. This is a common law principle that developed in England and has influenced various other common law jurisdictions including India. The first instance of empowering the mother to claim guardianship over the minor child is seen in the U.K legislation Custody of Infants Act, 1839. Despite this, the father’s rights continued to reign supreme.
The Guardians and Wards Act, passed by the colonial state in 1890, and the Hindu Minority and Guardianship Act, enacted by independent India in 1956, are the two Indian laws that deal with guardianship. The Guardians and Wards Act is a secular statute that applies to all in India, regardless of religion, at least in terms of its procedural aspects. However, where substantive personal rule exists, it will be fully applicable. The Act maintains the common law tradition of giving parental rights of guardianship and custody of children priority. This is quite evident in Sections 19 and 25 of the Guardians and Wards Act, 1890; the Sections supersede what has been highlighted – the importance of the welfare of minor – under Section 7 and Section 17.
Section 7 (1) reads as follows:
“Where the Court is satisfied that it is for the welfare of a minor that an order should be made– Appointing a guardian of his person or property or both, or declaring a person to be such a guardian the court may make an order accordingly.” [10]
Section 17, also laying emphasis on the importance of the welfare of the child, reads as follows:
“In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.”[11]
By virtue of Section 19 of the Act, Courts cannot appoint or declare another as guardian of the minor in the case that the father of the child is still alive and has not been declared by the Court to be unfit to be a guardian of the person. [12] This was the stance of the earlier Act. However, by virtue of the Personal (Amendment) Act, 2010 this has changed to disallow the Court from appointing or declaring a guardian in the case that either the mother or the father is still alive. [13] This, in turn, puts both sexes on equal footing.
Initially, Hindu law did not have any codified principles or regulations dealing with guardianship and custody of children.[14] In the Joint Hindu Family, the Karta was responsible for the overall control of all dependents and management of their property, and therefore specific legal rules dealing with guardianship and custody were not thought to be necessary.[15] However, in modern Hindu Law, the Hindu Minority and Guardianship Act, 1956 deals with these aspects. It is only the Hindu Minority and Guardianship Act, 1956, which was enacted by the independent Indian state that explicitly highlights that the welfare of the minor will be of paramount importance.[16] Section 6 of the Act highlights an evident imbalance of power between the two sexes. Section 6(a) gives precedence to the father of the boy or unmarried girl as “natural guardian” and “after” the father, the minor’s mother shall stand as natural guardian. While Section 6(b) gives preference to the mother as “natural guardian” in the case of the minor in question being an illegitimate boy or an unmarried illegitimate girl.
In the case of Githa Hariharan v. Reserve Bank of India, the RBI had declined to consider a fixed deposit application signed exclusively (solely) by the mother in the child’s name. The signature of the father was demanded. The Court did not comment on whether the clause should be amended or struck down, instead interpreting the word “after” in Section 6(a) to mean “in the absence of the father” rather than “in the father’s lifetime”. The Court went on to further highlight that the term “absence” refers to “temporary or otherwise total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise.”[17]
Judicial Decisions
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V. Gajre vs. Pathankhan and Ors [18]
This is a case regarding a land dispute. Here, the appellant is the landlord who had filed an application for termination of the existing tenancy and to thereby, recover the land which was gifted to her by her father. At the time, the appellant was still a minor and the appellant’s mother acting as the “natural guardian” of the person and property of the minor, in 1951, had leased the suit land to the existing tenant. One of the issues that arose here was with respect to whether or not the lease executed by the mother was valid or void. It was argued that the mother would be the natural guardian of the person and property of the minor only “after” the father, as per Section 6 of the Hindu Guardians and Minority Act, 1956. And, as a result, the lease executed by the mother acting as the appellant’s representative would not be valid. The Court, however, ruled in favour of the mother acting as the minor’s natural guardian. The Court had established that the father and the mother had fallen out and had not been living together for the past 20 years. It was the mother who managed all affairs of the minor daughter and took care of her. In essence, it was “as if he (father) was non – existent.” [19] In circumstances such as this, it was held that the mother would serve as the minor’s natural guardian.
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ABC V. The State (NCT Delhi) [20]
This is yet another important case in terms of guardianship and the rights of an unmarried mother. Here, the concerned party is a Christian mother and therefore, the Guardians and Wards Act, 1890 is applicable. The facts of the case are that the mother of the minor son wanted to make the child the nominee for all her savings and other insurance policies. For this to materialize, she was required to disclose the name of the child’s father or get a Guardianship Certificate from Court. Therefore, she filed an application for the certificate under Section 7 of the Act. Section 11 of the same legislation requires that the other party be sent a notice of the application as he/she also has an interest in the welfare of the child. The mother, however, refused to send a notice to the father. She instead published a notice of the petition in the newspaper and argued this to be sufficient. The Guardian Court, upon her refusal to send the required notice, rejected her application. The matter went on appeal to the Delhi High Court but the High Court dismissed the appeal. Following this, the matter was further appealed to the Supreme Court. The contention of the appellant was that by virtue of Section 7, the minor’s right to welfare must supersede the rights of both the father and the mother. She stated that there would be severe social implications for the child as well as for her if the name of the father was to be mandatorily disclosed. This was attributed to the fact that the father was already married to another woman and the minor in question was in fact illegitimate. There was also a reference to the mother’s Right to Privacy which would be infringed if she was forced to disclose the name of the child’s father. The counterclaim by the respondent was based strongly on Section 19 and how the section ensures that the rights of a living father supersede all. The Supreme Court took all these contentions into consideration and also looked into the law that prevails in various other countries such as the United Kingdom, South Africa etc. with respect to this issue. The Court also looked into Section 6(b) of the Hindu Guardians and Minority Act and highlighted how the natural guardianship of an illegitimate child rests with the mother first and then the father. The Court finally ruled in favour of the appellant. It found no reason to distinguish between the rights of a Hindu mother and a mother of a different religion. It gave priority to the rights of the mother in cases regarding illegitimate children. The mother’s right to privacy was acknowledged by the Court and they stated that if the mother is forced to disclose the father’s name then it would be a violation of this right. Therefore, a mother could now apply for guardianship without being required to send a notice.
The Supreme Court has directed that unwed mothers can get birth certificates issued for their biological children merely by furnishing an affidavit to this effect. While making a strong case for a Uniform Civil Code, the Supreme Court said, “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. 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.” [21]
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Teesta Chaturaj case of Delhi [22]
It was held in this case that, if the father does not avail himself of the responsibilities, then no court can give him a green signal to be the biological father.
To discourage biological parents from tracing the adoptive parents and the child, the Court barred notice of guardianship applications from being sent to them. While the Guardians and Wards Act was not expressly invoked in that situation, it is nevertheless significant because it emphasizes that the protection of the child takes priority over all other considerations, including parental rights. We find no evidence in this case that the child’s welfare would be jeopardized if the Appellant is not compelled to reveal the father’s identity, or that Court notice is compulsory in the child’s best interests. On the contrary, we find that this may well protect the child from social stigma and needless controversy.[24]
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Shalu Nigam v. Regional passport Officer [25]
In this case, the petitioner sought the reissuance of her daughter’s passport without the insistence upon the father’s name being mentioned in the application. The petitioner is divorced and the biological father of her daughter has abdicated his rights and liabilities as a father. The petitioner contended that the insistence on the father’s name will alter her daughter’s identity. This identity is one she has been using since birth, as the petitioner’s daughter, due to the father’s abandonment, because she was a girl child. The Court held that due to the absence of a legal requirement to mention the father’s name, the respondents cannot insist upon the same. The Court was also of the view that the mother’s name is sufficient in cases like the present case, especially as a single woman can be a natural guardian and also a parent. Further, the Court also implied that the insistence of the respondent’s upon the father’s name will alter the child’s identity. The identity of the child would be then connected to a father, who abandoned her. This, in itself, would be detrimental to the welfare of the child.
Formerly, The Gujarat High Court in Rashi Yogesh Sadariya vs Director & others [26], held that the “petitioner being a single parent and biological natural guardian has a right to put her (surname) name after the name of her minor daughter in the birth certificate following by mutual consent divorce from her husband”.
CONCLUSION
Therefore, at the end of this article, one arrives at a conclusion that the social status of unwed mothers is in taters and that they have to shoulder a lot of responsibilities on themselves. They are socially ostracized for being unwed mothers. They do not get the support they require from the father nor do they get it from society. Even in legal matters, the fathers were given more importance due to the patriarchal nature of the society and as a result, the law favoured the father of the child with issues regarding custody and guardianship. However, the Courts have compensated for the existing legislative imbalance by interpreting the current provisions of the law in a manner that makes it gender-neutral. The Courts have eventually realized that procedural formalities and a patriarchal structure of law cannot become a hindrance to the development of a child. This has been a very progressive step taken by the Courts. Therefore, judgments of the above nature are the need of the hour especially considering the fact that we are now in the 21st century. There should be no discrimination between people on the mere grounds of gender or sex. These judgements are what will help improve the socio as well as the legal status of unwed mothers in society. The welfare of the child should continue to be of paramount importance as has been done in the above rulings of the Courts. Apart from the Supreme Court upholding the concept of Rule of Law by harbouring greater equality among all people, the onus now lies upon the legislature to amend the existing law in such a manner that it is not violative of Article 14 (Equality) or Article 15 (Prohibition of Discrimination) of the Constitution of India. The Law Commission of India has also stated that certain provisions of the legislation are unconstitutional in nature and as a result, have called for its amendment.[27] The law should be amended in such a manner that the interest or welfare of the child is considered to be of paramount importance followed by the rights of the father or the mother as the situation may deem fit. The judgment in the Githa Hariharan[28] case should be used as a basis for amendment as it provides an appropriate foundation for establishing a law based on either parent being “absent”.
[1] Bangkok, Thailand: UNESCO; 1992. UNESCO Principal Regional Office for Asia and Pacific. The changing family in Asia: Bangladesh, India, Japan, Philippines and Thailand.
[2] Birth Control and the Lower – Class Unmarried Mother – Sidney Furie.
[3] Stephanie William Bordat & Saida Kouzzi, “Legal Empowerment of Unwed Mothers: Experiences of Moroccan NGOs”, Paper No. 14, Legal Empowerment Working Papers, https://www.files.ethz.ch/isn/138103/LEWP_BordatKouzzi.pdf
[4] Sara McLanahan, “The Consequences of Single Motherhood”, The American Prospect (Ideas, Politics & Power), December 19, 2019, http://prospect.org/article/consequences-single-motherhood.
[5] Mandal KT, “Problem of unmarried mothers (a study of sociopsychological aspects of 100 women seeking MTP)”, available at – https://www.ncbi.nlm.nih.gov/pubmed/7161505
[6] As adopted and proclaimed by the General Assembly in its resolution No.217A(III).
[7] Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.
[8] “Problems Faced by Single Mothers”– by Nidhi Kotwal and Bharti Prabhakar, J Soc Sci, 21(3): 197-204 (2009),
[9] Law Commission Report No.257 on Reforms in Guardianship and Custody Laws in India, May 2015.
[10] Guardians and Wards Act, No. 8 of 1890, Section 7.
[11] Guardians and Wards Act, No. 8 of 1890, Section 17.
[12] Guardians and Wards Act, No. 8 of 1890, Section 19.
[13] Personal Laws (Amendment) Act, No. 30 of 2010, § 2.
[14] Supra note 12.
[15] Paras Diwan, Law of Adoption, Minority, Guardianship & Custody (2012), Universal Law Publishing Co.: New Delhi, P. xv.
[16] Ref. Section 13 – Hindu Minority and Guardianship Act, 1956.
[17] Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228, ¶ 25.
[18] 1970 (2) SCC 717.
[19] Justice Vaidyialingam in the case of J.V. Gajre vs. Pathankhan and Ors.
[20] Civil Appeal arising out of SLP (Civil) No. 28367 of 2011. Judgment given on 6th July, 2015 by Supreme Court of India.
[21][21] Krishnadas Rajagopal, Unwed mother can be sole guardian: Supreme Court, The Hindu, July 06, 2015, 11:09 IST, http://www.thehindu.com/news/national/Unwed-mother-can-be-sole-guardian-Supreme-Court/article10560291.ece
[22] In the High Court of Delhi, W.P.(C) 2888 of 2011.
[23] 1985 (Supp) SCC 701.
[24] Mitali Yadav, Alba Law Offices, Unwed Mothers May Become Sole Guardian Of A Child, LegallyIndia, June 14, 2016, https://www.legallyindia.com/views/entry/unwed-mothers-may-become-sole-guardian-of-a-child
[25] W.P.(C) 155/2016 & CM APPLs. 684-685/2016, Delhi HC on 17th May 2016.
[26] Special Civil Application No. 12924 of 2015.
[27] 135th Law Commission Report, 1989.
[28] Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.
Author: Achyutha R Bharadwaj,
Christ (Deemed to be University), 3rd year
