Kalidasi Halder, 55, is a government employee of Dum Dum area in Kolkata. At 54, she became a single, unwed mother through donor sperm and in vitro fertilization (IVF).
The birth of her daughter Kathakali, eight months back, brought immense joy to Kalidasi. But little did she realize how difficult the journey would be for her in Indian society where every official paper has a space for ‘father’s’ name.
Her ordeal started over a birth certificate for her child. Corporation officers denied this as she could not provide details about the child’s father.
“After my persuasion and explanation, a high-ranking officer finally agreed to write ‘single mother’ in the space provided for parent’s name,” said Kalidasi.
She can smile now. Last week, the Supreme Court of India made a landmark judgement that there is no need for the consent of father in giving guardianship of a child to an unwed mother.
The ruling means that Indian society has finally awakened to the reality that women could be the sole care takers and decision makers for their children. To get married, stay single, conceive through wedlock or have children through donor sperm is entirely up to them.
How the judgement came about
The court order came on a petition by a woman who holds a government job. The woman had challenged the procedural necessity of disclosing the identity of the father and issuing notice to him seeking sole guardianship of the child.
The mother contended that the man stayed with her barely for two months and that he did not even know the existence of the child.
According to an Indian Express report, the woman’s plea for sole guardianship of the child was earlier rejected by a trial court and high court in Delhi. The courts ruled that an unwed mother must declare the identity of the father for the guardianship of the child. She filed an appeal in Supreme Court in 2011.
Why this ruling is important
Unwed mothers in India have to grapple with questions from nosy neighbors and taunts from colleagues at workplace. In most cases, they are ostracized by their own families. Those who have money and the grit to bring up their children on their own often hit a wall when it comes to official paperwork.
Here is an example. In October 2014, a young lady wanted to include her stepfather’s name instead of her biological father’s name in her passport. But she was not allowed to do that. So she moved the high court.
According to passport manual, a classified document, mentioning the name of biological father is mandatory on passports. What should an unwed mother do in such a situation?
She must file an affidavit stating how she conceived. If she was raped, explain why she does not want the father’s name to be included.
While this case raised furor in the social media, the latest ruling by India’s top court has won praise from unwed mothers.
Eleena Banik, a painter in Kolkata and an unwed mother who conceived through IVF and known donor, said: “Recently, I applied to a school in Kolkata for my daughter’s admission. While the school had no problem with me being an unwed mother, on the day of the interview when both parents were supposed to be present, the security guard at the gate started asking me all kinds of questions on why the father was not present. I had to show him the certificate to prove that my daughter was conceived through donor sperm. I face such stumbling blocks constantly.”
Anindita Sarbadhicari, a filmmaker, who is also an unwed mother and has conceived through donor sperm at 39, has a different take. “No one has ever questioned my decision. I have been very open about everything since my pregnancy, so that has helped,” she said.
On the latest judgement, she said: “This is a welcome relief for all unwed mothers. I know a lady who decided to keep her child whom she conceived after being raped. I know another who was a victim of trafficking, has two daughters and now her work entails saving other girls from trafficking.”
For Kalidasi, conceiving through wedlock and conceiving through donor sperm IVF are different things. “In my case, there has been never any man whose paternity I have to acknowledge. From Day-1, I am the sole caretaker of my baby. But yes, I was a bit worried about what would happen when my daughter has to be admitted to a school. That way, this judgment has come as a huge relief,” she said.
Hari G Ramasubramanian, an attorney with expertise in the field of assisted reproductive technology, said: “The guidelines by the Indian Council of Medical Research are in favor of the single woman taking up IVF procedures.”
In 2014, the Bombay High court observed that pre-marital sex between couples is no longer a taboo in India’s big cities.
Delivering the judgement, Justice Mridula Bhatkar said: “Nowadays, having sexual relationship while having an affair or before marriage is not shocking as it was earlier. Today, society is becoming more and more permissive. Though unlike in western countries, we are still hesitant to accept free sexual relationship between unmarried people or as a basic biological need for youngsters; the court cannot be oblivious to changing behavioral norms and patterns in man-woman relationships in our society.”
So from accepting pre-marital sex to giving guardianship to unwed mothers, the Indian judiciary is bringing about a social change that has been long due.
Key points of the latest judgement
Given below are the main points from the Supreme Court’s ruling on guardianship of a child of an unwed mother:
1. The interest of the minor is the only relevant factor for appointing a guardian, and the rights of the mother and father are subservient thereto.
2. Furthermore, it is also pressed to the fore that 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.
3. In the U.S., each State has different child custody laws but predominantly the mother has full legal and physical custody from the time the child is born. 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 child’s birth certificate have joint custody, regardless of whether they 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 to become a legal guardian of his child. 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 paternity.
4. In a situation 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.
5. It is no longer necessary to state the name of the father in applications seeking admission of children to school, as well as for obtaining a passport for a minor child. However, in both cases, it may still remain necessary to furnish a birth certificate.
Amrita Mukherjee is a freelance journalist who writes on social issues in India with focus on women. She divides her time between Dubai and India and blogs at www.amritaspeaks.com
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