By John B Monteiro
Jul 9: It has long been said that mother is a fact and father fiction. But the fact has worked against mothers or women at large (or loose?). There is a rustic saying that men and women can get into muck and enjoy together but men can wash themselves clean while women, though can wash externally, run the risk of carrying the burden of the seed implanted in the course of unthinking passion and enjoyment. We had a case of a leading politician (also Governor of a State) disowning his biological son born outside marriage for decades. The case has concluded happily for the disowned son and his mother through court procedures which finally involved the risk of DNA test to determine paternity. Now the Supreme Court has, so to say, started a legal process of women enthronement which is beyond the political slogan and scanty action of women empowerment. But, first the facts.
Upholding the right of an unwed mother to apply for sole guardianship over her minor son without prior consent of the child’s absentee biological father, the Supreme Court on July 6, 2015 said women are increasingly choosing to raise their children alone, and there was no need to thrust an uncaring father on a child. The young mother, whom the apex court described as “well-educated, gainfully employed and financially secure,” had refused to divulge the name of the biological father of her child to the courts. She reasoned that the man, who was married and had a family, never showed any interest in her child, whom she raised on her own. She wanted guardianship rights so that her son would inherit her financial assets.
“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 judgment by a Bench of Justices Vikramjit Sen and A.M. Sapre held. The judgment, authored by Justice Sen, observed that a man who has chosen to forsake his duties and responsibilities is not a necessary constituent for the well-being of the 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 present case,” the apex court held, allowing the mother to apply for guardianship without disclosing the name of the biological father.
The court agreed with the woman, who preferred anonymity and is known only by the acronym ‘ABC’ on court records, that it would be beneficial if the father’s name is not disclosed now. She said the guardianship can be altered if the father raised any objections.
The Supreme Court directed that unwed mothers can get birth certificates issued for their biological children merely by furnishing an affidavit to this effect. In the present case, the legal battle for the woman, a Christian, started in 2011 when the local Guardian Court rejected her application under the Guardians and Wards Act after she refused to part with the father’s details or name. Under Section 11 of the Act, a mother applying for sole guardianship needs prior consent of the biological father. Section 19 goes further to say that a mother cannot be the sole guardian if the father is alive and fit. Her appeal in the Delhi High Court was dismissed for the same reason. In fact, the High Court even reasoned that her status as a single mother could only be determined after hearing from the father too.
In its judgment, the Supreme Court acknowledged that the “predominant legal thought across the world and in some statutes in India” is that a mother is best suited to care for her child. The court further made this a strong case for ushering in a Uniform Civil Code. “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.”
Though the High Court in this case ruled against this unwed mother, many high courts are taking pro-woman stands, specially in awarding maintenance for divorced wives and their kids, as reflected in the following cases
The Karnataka High Court on June 25, 2015 ruled that a father cannot deny maintenance to his child on the ground that he has a low-wage occupation. The High Court asked the father, a resident of Madikeri, to pay Rs 5,000 as maintenance to his 13-year-old daughter within a month.
In a petition filed before the court, Joseph (name changed) contended that he cannot pay maintenance of Rs 1,000 per month, which the Lok Adalat asked him to pay in 2009, as he is a coolie. Taking serious exception to this, Justice Venugopala Gowda said Joseph should be ashamed of himself. “Why should he have a child if he could not pay maintenance? The minor daughter has no means to take care of herself... The right of the minor girl cannot be sacrificed because of the quarrel between the father and mother,” he added.
“Joseph is claiming that he is not able to pay the maintenance because he is a coolie... But how did he get the money to file an appeal against the Lok Adalat order in the magistrate court and later in the sessions court in Madikeri? How did he mobilise money to come to Bengaluru to file a criminal petition before the High Court seeking to quash the maintenance order,” Justice Gowda asked. “I cannot exercise the powers of Section 482 of CrPC to quash the maintenance order. Instead, I am ordering you to give Rs 5,000 to the minor daughter and this should be paid within a month,” he said
In a similar case, Madurai Bench of Madras High court ruled: A man, though jobless, should pay maintenance to his wife as ordered by court in divorce case. Justice G Rajasuriya said the husband cannot claim that he was poor, in order to dodge his responsibility of providing monthly maintenance to his wife."A husband has to take care of his wife somehow or other even if he is jobless," the Judge said.
He was dismissing a civil revision petition filed by the man challenging the March 3, 2014 order of family court, before which the couple had filed divorce petition, directing him to pay Rs 2,000 as interim maintenance. The man had pleaded that he did not have the source to pay the maintenance ordered by the lower court. In his order, the Judge said: "A hale and healthy man is expected to work to maintain himself and his dependants. He has to maintain his wife who is incapable of maintaining herself. Somehow or other husband should maintain amount granted by the lower court. Besides, the Judge also directed the man to provide Rs 3,000 to his wife for paying the cost of litigation.
In another case, the Supreme Court in early April 2015 said that divorced Muslim women are entitled to seek maintenance from their ex-husbands under the Criminal Procedure Code which provides the same relief to wives, children and parents. A bench of justices Dipak Misra and Prafulla C Pant referred several judgements of the apex court where law has been settled that a magistrate can grant maintenance to a divorced Muslim woman and parameters and considerations are the same as stipulated in Section 125 of the CrPC. Section 125 of the CrPC deals with order for maintenance for wives, kids and parents if any person having sufficient means neglects or refuses to maintain them.
Dealing with the issue of applicability of Section 125 CrPC to a Muslim woman who has been divorced, the bench upheld a trial court's order which had directed a man, retired Nayak from Army, to pay Rs 4,000 maintenance to his divorced wife. It said, "there can be no shadow of doubt that Section 125 CrPC has been rightly held to be applicable by the family judge."
The Bombay High Court, also in early April 2015, had taken to task a former MNC official who is involved in a bitter divorce battle and directed him to bear the expenses of his eldest son's education at the United World College of South East Asia in Singapore.
Hearing a plea filed by Ritu Malhotra challenging the family court's verdict directing her to pay 25% of her son's fee on the basis that a property that her parents had given her had been sold for Rs 50 lakh, the HC told her husband Pankaj, "You cannot throw your hands up." The couple's 17-year-old son has been in Singapore since grade 9, and is due to complete his grade 12.
Apart from heartening Indian women, these pro-women judgments would confirm the role of mothers as expressed by Felicia D. Hemans, English poet (1794-1835):
There is none,
In all this cold and hollow world, no fount
Of deep, strong deathless love, save that within
A mother’s heart.
According to Thackeray, “Mother is the name for God in the lips and hearts of children”.
It is fortunate and welcome that our higher judiciary is giving legal sanction to these sentiments.