ABCversusTHE STATE (NCT OF DELHI)

                          [2015] 8 S.C.R. 422


A                                 ABC
                                    v.
                    THE STATE (NCT OF DELHI)
                   (Civil Appeal No. 5003 of2015)
B                            JULY 06, 2015
                  [VIKRAMAJIT SEN AND ABHAY
                      MANOHAR SAPRE, JJ.)
          Guardian and Wards Act, 1890 - ss. "7 and 11 -
C . Application for appointment as guardian of her child by
    unwed Christian mother- Requirement of giving notice u/s.
    11 to the child's putative father by the unwed mother- Held:
    There is no mandatory procedural requirement of notice to
    be served to the putative father in connection with a
D guardianship or custody petition preferred by the natural
    mother of the child of whom she is the sole caregiver - S. 11
    applies to a situation where guardianship of child is sought
    by a'third party, making it essential for the welfare of the child
E being given in adoption to gamer the views of child's natural
    parents - Guardian Court to recall the dismissal order passed
    by it and consider the mother's application for guardianship
    expeditiously without requiring notice to be given to the
    putative fatherofthe child.
F       Allowing the appeal, the Court

       HELD: 1.1 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
G 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
H                             422
           ABC v. THE STATE (NCT OF DELHI)                 423


the necessity of determining paternity. In such situations, A
where the father has not exhibited any concern for his
offspring, giving him legal recognition would be an
exercise in futility. The appellant has taken care to clarify
that should her son's father evince any interest in his
son, she would '"!Ot object to his participation in the B
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 not to be unreasonable. [Para 9] [435-C-G]              C

     1.2 It is imperative thatthe rights of the mother must
also be given due consideration. It was submitted that
the appellant's fundamental right of privacy would be
violated if she is forced to disclose the name and D
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 instant case.
Furthermore, Christian unwed mothers in India are E
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 F
fathers. It would be apposite to underscore that the
Directive Principles envision the existence of a uniform
civil code, but this remains an unaddressed
constitutional expectation. [Para 11] [436-C-F]
               .\
    1.3 The father's right to be involved in his child's life G
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, there is no reason to
prioritize his rights over those of the mother or her child. H
424         SUPREME COURT REPORTS                  [2015] 8 S.C.R.


A 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
B them, the rights, nay duty of the father have been more
  than adequately protected. In the instant case, there is
  no indication that the welfare of the child would be
  undermined if the appellant is not compelled to disclose
C the identity of the father, or that Court notice is mandatory
  in the child's interest. On the contrary, this may well
  protect the child from social stigma and needless
  controversy. [Para 12,13] [436-G,H; 432-A-D]

       Laxmi Kant Pandey vs. Union of India 1985 (Supp) SCC
D 701 :1985 Suppl. SCR 71 ;Githa Hariharan v. Reserve Bank
  of India (1999) 2 SCC 228: 1999 (1) SCR 669 - referred to.

           1.4 As the intention of the Act is to protect the welfare
      of the child, the applicability of Section 11 would have to
E     be read accordingly. In a case where one of the parents
      petitions the Court for appointment as guardian of her
      child, the provisions of s. 11 would not be directly
      applicable. Section 11 applies to a situation where the
      guardianship of a child is sought by a third party, thereby
 F    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, to
      protect the interests of a child born out of wedlock and
      being raised solely by his/her mother. Ndtice should not
G     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, therefore, is
      the welfare of the minor child, regardless of the rights of
H     the parents. [Para 15] [438-D-F]
          ·ABC v. THE STATE (NCT OF DELHI)                425


     1.5 Section 11 is purely procedural; there is no harm    A
or mischief in relaxing its requirements to attain the
intendment of the Act. The term "parent" is not defined
in the Act, it is interpreted in the case of illegitimate
children whose sole caregiver is one of his/her parents,
to principally mean that parent alone. Guardianship or        B
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         C
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
                                                              0
custody petition preferred by the natural mother of the
child of whom she is the sole caregiver. [Para 16] [438-
H; 439-A-C]
    1.6 There is need to ensure that the child's right to
know the identity of his parents is not vitiated, E
undermined, compromised or jeopardised. In order to
secure and safeguard this right, the appellant was
interviewed and impressed upon, the need to disclose
the name of the father to her son. She disclosed his name, F
along with some particulars to this Court; she stated 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. [Para 18] [443-C-D]               G

     1.7 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 this H
Court or before any of the courts below. It is a misplaced
426      SUPREME COURT REPORTS                 [2015) 8 S.C.R.


A assumption in the law that the issuance of a Birth
  Certificate would be a logical corollary to the appellant
  succeeding in her guardianship petition. Owing to curial
  fiat, it is no longer necessary to state the name of the
  father in applications seeking admission of children to
B 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. It is directed that
  if a single parent/unwed mother applies for the issuance
  of a Birth Certificate for a child born from her womb, the
C 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. [Para 19] [443-E-H; 444-A-B]

D      1.8 The Guardian Court as well as the High Court
  ought notto 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
E 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
F 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
  Guardian Court is directed to recall the dismissal order
G 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. [Para 20, 21] [444-D-H]

       Joey D. Briones vs. Marice/ P. Miguel et al G.R. No.
H
            ABC v. THE STATE (NCT OF DELHI)                      427


156343- referred to.                                               A
                    Case Law Reference
     1985 Suppl. SCR 71          referred to.       Para 13

    1999 (1) SCR 669             referred to.       Para 14
                                                                   B
   CIVIL APPELLATE JURISDICTION: Civil Appeal No.
5003 of2015

    From the Judgment and Order dated 08.08.2011 in FAO
No. 346 of2011 of the High Court of Delhi at New Delhi. C

    lndu Malhotra, Anshuman Singh, Varun Singh, Eesha
Mahapatra, Prashant Singh, Ajay Vikram Singh, lmran Alam
and Renjith. B for the Appellant.
                                                                   D
    Sidharth Luthra, (AC), Viraj Gandhi, P. K. Dey, Gunwant
Dara, Saroj Bala, D.S. Mahara and B. V. Balaram Das for the
Respondent.

    The Judgment of the Court was delivered by
                                                                   E
     VIKRAMAJIT SEN, J. 1. 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 . F
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 G
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 H
of two adults whose personal differences and animosity has
428         SUPREME COURT REPORTS                     [2015] 8 S.C.R.


 A    taken precedence over the future of their child.

        2. Leave granted. This Appeal is directed against the
   Judgment dated 8.8.2011 delivered by the High Court of Delhi,
   which has dismissed the FirstAppeal of the Appellant, who is
 B 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
 C not been revealed herein.

           3. 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
 D    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
 E    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
 F    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
 G    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
 H    Appellant's appeal before the High Court was dismissed in
            ABC v. THE STATE (NCT OF DELHI)                          429
                     [VIKRAMAJIT SEN, J.}

limine, on the reasoning that her allegation that she is a single     A
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.
                                                                      B
     4. Ms. lndu 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       C
own. This is a brooding reaiity 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       D
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              E
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            F
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.

     5. It would be pertinent to succinctly consider the G
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.
                                                                H
430         SUPREME COURT REPORTS                    [2015] 8 S.C.R.


A         "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,
 B
          or

          (b) declaring a person to be such a guardian,

          the court may make an order accordingly.
c
          (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
D
          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
E         aforesaid have ceased under the provisions of this Act."

          The details of the foan of application are contained in
      Section 10 and the procedure that applies to a guardianship
      application is prescribed in Section 11.
F
          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
G         of the date fixed for the hearing-
          (a) to be served in the manner directed in the Code of
          Civil Procedure, 1882(14of1882)11 on-

H         (i) the parents of the minor if they are residing in any
            ABC v. THE STATE (NCT OF DELHI)                        431.
                     [VIKRAMAJIT SEN, J.]

    State to which this Act extends;                                A

    (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;       ·
                                                                    B
    (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       C

    (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.          D

    (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 E
    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.          F
    (3) No charge shail be made by the court or the Collector
    for the service or publication of any notice served or
    published under sub-section (2).
                                                                    G
    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:

    19. Guardian not to be appointed by the court in certain H
432       SUPREME COURT REPORTS                   [2015] 8 S.C.R.


A       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-
B
        (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

C       (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
o       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
E 19, which we think will be perilous to ignore.

       6. 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
F 19, a guardian cannot be appointed ifthe 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
G 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.
H
            ABC v. THE STATE (NCT OF DELHI)                     433
                     [VIKRAMAJIT SEN, J.]

      7. Section 6(b) of the Hindu Minority and Guardianship A
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 B
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 C
applies to Christians in India, the domicile of origin of an
illegitimate child is in the country iri 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 D          .
father of the concerned child.

       8. 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/herproperty.Accarding to Section 2(2) ofthatAct, parental E
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 registeras F
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. G
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 chiid's ·
Birth Certificate have joint custody, regardless of whether they H
434        SUPREME COURT REPORTS                     [2015] 8 S.C.R.


A 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.
B 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
C 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
0
  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.
E In South Africa, according to the Children's Act No. 38 of 2005,
  parental responsibility includes the responsibility and the right
  (a) to care forthe 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,
F 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
G 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
H child's upbringing for a reasonable period; and (iii) contributes
             ABC v. THE STATE (NCT OF DELHI)                            435
                      [VIKRAMAJIT SEN, J.]

or has attempted in good faith to contribute towards expenses A
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 B
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.

       9. It is thus abundantly clear that the predominant legal         C
 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           D
  in Hindrby 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         E
 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            F
 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            G
 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.

     10. We feel it necessary to add that the purpose of our H
436          SUPREME COURT REPORTS                        [2015) 8 S.C.R.


A     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
B     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.

       11. It is imperative that the rights of the mother must also
C 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
D 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,
E 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
F of a uniform civil code, but this remains an unaddressed
  constitutional expectation.

       12. 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
G 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 Notional Daily and has
H submitted an affidavit stating that her guardianship rights may
  be revoked, altered or amended if at any point the father of the
            ABC v. THE STATE (NCT OF DELHI)                          437
                     [VIKRAMAJIT SEN, J.]

child objects to them, the rights, nay duty of the father have A
been more than adequately protected.

     13. 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 b.e read B
accordingly. In Laxmi Kant Pandey vs. Union of India 1985
(Supp) SCC 701, this Court prohibi'ed 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 C
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 D
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.

     14. Even in the absence of Laxmi Kant Pandey, we are             E
 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       F
solely by the mother. In the context of Section 6 of the Hindu
Minority and Guardianship Act as w~ll 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         G
an agreement between him and the mother of the mi.nor (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          H
incapacity, the mother can act as natural guardian of the minor
438         SUPREME COURT REPORTS                  [2015] 8 S.C.R.


A and all her actions would be valid even during the life time of
  the father who would be deemed to be "absenf' for the purposes
  of Section 6(a) of the HMGAct 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
B 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
C over the child.

         15. 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
D 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
E 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
F 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 ofthe minor
   child, regardless of the rights of the parents. We should not
   be misunderstood as having given our imprimatur to an attempt
G 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.
H         16. Section 11 is purely procedural; we see no harm or
      mischief in relaxing its requirements to attain the intendment
            ABC v. THE STATE (NCT OF DELHI)                       439
                     [VIKRAMAJIT SEN, J.]

of the Act. Given that the term "parent" is not defined in the A
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 anytime, by
any person genuinely concerned for the minor child, if the child's B
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 C
connection with a guardianship or custody petition preferred
by the natural mother of the child of whom she is the sole
caregiver.
    ·11. Implicit in the notion and width of welfare of the child, D
as one ofits 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 a/ia, to the E
Universal Declaration of Human Rights. For facility of reference
the salient provisions are reproduced -

    Article 1
                                                                   F
    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.
                                                                   G
    Artlc/e3

    1. In all actions concerning children, whether undertaken
    by public or private social welfare institutions, courts of
    law, administrative authorities or legislative bodies, the H
440     SUPREME COURT REPORTS                     [2015] 8 S.C.R.


A     best interests of the child shall be a primary consideration.

      2. 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
B     her parents, legal guardians, or other individuals legally
      responslofe for him or her, and, to this end, shall take all
      appropriate legislative and administrative measures.

      3. states Parties shall ensure that the institutions, services
c     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.
D
      Article7

      1. The child shall be registered immediately after birth and
      shall have the right from birth to a name, the right to ac-
      quire a nationality and, as far as possible, the right to know
E     and be cared for by his or her parents.

      Article9

      1. states Parties shall ensure that a child shall not be sepa-
F     rated 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 particu-
G     lar 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.

H     2. In any proceedings pursuant to paragraph 1 of the
       ABC v. THE STATE (NCT OF DELHI)                     441
                [VIKRAMAJIT SEN, J.]

present article, all interested parties shall be given an A
opportunity to participate in the proceedings and make
their views known.

3. States Parties shall respect the right of the child who is
separated from one or both parents to maintain personal B
relations and direct contact with both parents on a regular
basis, except if it is contrary to the child's best interests.

Article 12
1. States Parties shall assure to the child who is capable C
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.
                                                               D
2. For this purpose, the child shall in particular be pro-
vided the opportunity to be heard in any judicial and ad-·
ministrative proceedings affecting the child, either directly,
or through a representative or an appropriate body, in a
manner consistent with the procedural rules of national E
law.

Article 18

1. States Parties shall use their best efforts to ensure rec- F
ognition of ~he 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 de-
velopment of the child. The best interests of the child will G
be their basic concern.

Articte21
States Parties.that recognize and/or permit the system of H
442       SUPREME COURT REPORTS                      [2015] 8 S.C.R.


A       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
 B      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 par-
        ents, relatives and legal guardians and that, if required,
        the persons concerned have given their informed consent
C       to the adoption on the basis of such counselling as may
        be necessary;

        Article27
        2. The parent(s) or others responsible for the child have
D       the primary responsibility to secure, within their abilities
        and financial capacities, the conditions of living neces-
        sary for the child's development.

        4. States Parties shall take all appropriate measures to
E       secure the recovery of maintenance for the child from the
        parents or other persons having financial responsibility
        forthe child, both within the State Party and from abroad.
        In particular, where the person having financial responsi-
        bility for the child lives in a State different from that of the
 F      child, States Parties shall promote the accession to inter-
        national agreements or the conclusion of such agree-
        ments, as well as the making of other appropriate arrange-
        ments.

G      18. 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
H of the Convention which we have extracted indeed reiterate
             ABC v. THE STATE (NCT OF DELHI)                           443
                      [VIKRAMAJITSEN, J.]

 the settled legal position that the welfare of the child is of A
 paramount co.nsideration 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 B
 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, C
·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
                                                                        0
 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.

      19. We are greatly perturbed by the fact thatthe Appellant           E
has not obtained a Birth Certificate for her son who is nearly
five years old. This is bound to create problems forthe 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               F
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                  G
seeking admission of children to school, as well as for
obtaining a passport for a r:ninor 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.                H
444          SUPREME COURT REPORTS                   (2015] 8 S.C.R.


A 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
B 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
C 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.

D      20. 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
E 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
F 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.

       21. The Appeal is therefore allowed. The Guardian Court
G 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.

H     Nidhi Jain                                         Appeal allowed.