Laws evolve over time. Often when law-makers fail to keep pace with the changing societal norms and practices, the task of acknowledging the need to modernize laws falls on the higher judiciary. This is welcome. All relevant actors must participate in the forward march of the society. In this context, the Supreme Court in recent times has taken some progressive decisions which strike a blow for gender equality and for ridding the society of an inherently misogynistic mindset. The legal obstacle in recognizing that a single-parent mother can be the bona fide guardian of her illegitimate child was removed by the apex court despite the fact that an old law made it mandatory for the father’s name to be listed as such.
The case in question related to an unwed mother whose partner deserted her soon after she was a couple of months pregnant. Now a single working mother, ‘a well-educated, gainfully employed and financially secure young mother’, as the SC described her- she had no contact with the biological father of her lone child, who was now married and had his own family. She was rebuffed by financial institutions when she sought to name her five-year-old son as nominee for her investments. Section 11 of the Guardian and Wards Act, 1890, made it mandatory to name the father of the child. She appealed to the local Guardian Court which upheld the decision of the financial institutions. She appealed to the Delhi High Court. Here again there was rejection. In fact, the High Court went further and said her status as a single mother could be determined only if the child’s father came forward to acknowledge the fact. The court said that in case the father was alive and fit, the mother could not claim to be the sole guardian. It is to the credit of the Supreme Court that it threw out the above orders of the Guardian Court and the High Court and bestowed legal sanctity on single unwed mothers.
In situations 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, the SC order read. Both parents ought to be considered equally as natural guardians and that in the Hindu Minority and Guardianship Act, the mother’s position was not secondary to that of the father. Indeed, unwed mothers can get birth certificates for their children by furnishing an affidavit stating that fact, the SC order said. Significantly, the court made a strong case for uniform civil court, stating that it was part of the directive principles of the Constitution and was most desirable. In the present case, it noted that Christian single mothers were disadvantaged as against Hindu single mothers, the latter being natural guardians of their illegitimate children through the sheer fact of being their mothers. Therefore, the introduction of uniform civil code would help remove these anomalies and put every Indian on the same footing in matters such as marriage, divorce, parental rights, etc. The inexorable march of time is bound to update our personal laws and force the law-makers to acknowledge the change. Gender equality should no longer be a slogan but an article of faith, to be honoured in all its glorious facets.
Meanwhile, a few days earlier another bench of the apex court had struck a blow for women when it clearly frowned upon the attempt of the Madras High Court to suggest mediation between a raped woman and her rapist. The woman who had subsequently become pregnant found the HC suggestion repugnant and appealed in the Supreme Court. The apex court said that the HC’s intervention was “thoroughly and completely sans legal permissibility.” While the HC reflected a patriarchal mindset showing the age-old bias against women, it was left to the apex court to apply the corrective and recognize the equality of sexes. Admittedly, even the SC could be accused of revealing an old mindset which harbours ancient notions of women’s body and honour. It is the rapist and not the raped who ought to be considered dishonourable and socially repugnant. With the passage of time, the old male-centric views on women and their bodies are bound to change for the better.
