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The Supreme Court Judgement On Unwed Mothers

The Supreme Court Judgement On Unwed Mothers


Contrary to media reports, the judgement guarantees no substantive guardianship rights to unwed mothers.


How does one classify, hail, or praise a judgement as “landmark”? Can there be defining categories — such as the issue involved, or the status of parties before the court, or the nature of the ruling?  Merely because both the subject (for example, a rape victim, a single mother) and the subject matter (examples, abortion, divorce, anything to do with multifarious interpretations and meanings of secularism or communalism) make for good “human interest” stories, should the media go to town and churn out an avalanche of “stories” that raise hopes, only to disappoint later ?


What happens if headlines and gushing eulogies promise more than the ruling ultimately delivers? Considering the fact that the lay reader would not be reading the full text of the judgement, isn’t it incumbent upon legal correspondents to be absolutely punctilious about accuracy?


Or, do the pressures of a news cycle permit certain liberties — for instance, highlighting observations and comments of judges that would resonate with readers, but if not put in the proper context, mislead and beguile them into forming erroneous opinions about the courts and law?


These questions, even if they appear accusatory, assume significance in the wake of the tranche of reports on the Supreme Court’s “unwed mother” judgement, which, as one report claims, is one of those rulings that “restored our faith in India.”


It started with a July 6 article in The Indian Express, whose headline gave the impression that a tough legal battle, whose outcome could make a significant difference to women’s rights, was on the cards.


Because, according to the report, the appeal before the Supreme Court was about “involving the father of a child in a guardianship petition even though she never married him”.


The court handed down the ruling in the morning, perhaps a little before lunch, but the judgement wasn’t made available to the public, on the court’s website, till evening.


Hence, going through the text and getting all the factual details correct wouldn’t have been immediately possible. In all fairness to the journalists, it must be stated that the circumstances of the case made it more difficult for someone who needed to write about the judgement but wasn’t present in court that day. The woman in question filed the appeal against the Delhi High Court’s ruling in 2011, and it was registered with the woman’s name, and allotted a particular docket number. Subsequently, in order to safeguard her privacy, she applied to the court for renaming and renumbering the case. The court granted her prayer, and the case was renumbered as Civil Appeal No. 5003 of 2015 and the cause title was changed to ABC v State (NCT of Delhi).


Every journalist is not allotted the court beat, and it would be unreasonable and unjust to expect that one cannot write about the law and report on a judgement by tracking it on the court’s website.


Of wrong facts and speculation


A Huffington Post-India report dated July 6 lauded the “landmark” judgement and stated that the court held that “an unwed mother in India can become the sole legal guardian of a child without the consent of the father.”


The report goes on to state that the case was about disclosing the father’s name in the guardianship petition, and also cites the Supreme Court’s judgement in the Githa Hariharan case. That judgement was indeed path breaking, because for the first time, it recognised a mother’s equal claim to guardianship. Before that ruling, only the father enjoyed the legal status of a “natural guardian”.


The BBC carried a report on similar lines, emphasising that the court ruled against the mandatory requirement of a father’s consent, or the disclosure of his identity. It also states that women’s rights activists have termed the judgement “progressive”, but doesn’t quote anyone.


Most other newspapers’ and news-websites’ reports ran on the same lines, which, taken together, could give the impression that the woman has emerged victorious from a bitterly and keenly contested litigation.


Which, in reality, is not the case.


Not a single report pointed to paragraph 18 in the judgement, which contains this sentence:


“We are mindful of the fact that we are presently not confronted with a custody conflict and, therefore, there is no reason whatsoever to even contemplate the competence or otherwise of the Appellant as custodian of the interests and welfare of her child.”


In plainspeak — this fact demolishes every notion of the case being about an unwed mother’s eligibility to be accorded guardianship rights. Moreover, in paragraph 4, the court notes that the woman is open to a legal challenge if her son’s father had any objections to her getting guardianship and custody rights.


Essentially, the entire case was only about notifying the child’s father before the hearing of the guardianship application and nothing substantial has been decided yet. The last paragraph of the judgement makes it abundantly clear — the guardianship court is to decide the application afresh.


So, whether that court will reject or approve the application on grounds of her being an unwed mother is only a matter of speculation as of now.


“Secularism” spin


A report on DNA’s website ran the headline- “Supreme Court pitches for Uniform Civil Code, says religion must be kept away from law”. It went on to say that the court made a “critical observation” about “religion being kept at bay from law” in a secular country like India, and that the court refused to consider the tenets of canon law — the personal law of Christians, while ruling in favour of the mother. A report in The Indian Express says the “court refused to be swayed” by the tenets of Christian law…”.


Both these reports lead to mistaken assumptions — that as if the woman’s claim was resisted by citing canon law and that the court gave a significant opinion in favour of the Uniform Civil Code. There wouldn’t be a dearth of people who will cite this judgement to make out a case for the Uniform Civil Code. Both these assumptions are patently flawed for two reasons.


One, the court does cite provisions of law which applies to Christians, but the woman’s faith was not a factor on which the judges relied. In paragraph 10, the Bench makes it abundantly clear that referencing the laws and judgements of certain western countries was only for the purpose of understanding how “best interests of the child” has been interpreted, and “not…to understand the tenets of Christian law.”


Two, the Bench’s comment in paragraph 11, about the Uniform Civil Code being an “unaddressed constitutional expectation” is only obiter dicta – comments of judges, not strictly related to the facts of the case, and not binding on lower courts. In sum: of no decisive legal value, and certainly nothing at all like “pitching” for the Code.


Legal reporting is also about “stories” (as used in journalistic parlance) but it isn’t only about that. It is distinct from other areas of reporting because law is complex and most often, little understood by lay persons; hence journalists have an added responsibility towards lucidity and clarity.


But this responsibility is preceded by a bounden duty — to be cautious lest their reports mislead leaders. Hifalutin rhetoric, sensationalism and deliberate spin violates this duty like nothing else.


This article has been republished from

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