ABC v. The State (NCT of Delhi)

The woman appealed the decision of the Delhi High Court to the Supreme Court of India, where she argued that there were three reasons for not naming the father: she did not wish to disclose his identity as there was a risk that he would deny paternity as he was already married; she feared that this would affect her child. Secondly, such a revelation might have repercussions on his family considering his marital status. Thirdly, she argued that her fundamental right to privacy would be violated if she was compelled to disclose the father's name.

The State of Delhi opposed her arguments in the Supreme Court, stating that Section 11 of the Guardians and Wards Act, 1890, which applies to Christians in India, requires that a notice must be given to the 'parents' of a child, before a guardian is appointed. Further, the State of Delhi submitted that Section 19 of the same Act stated that a guardian could not be appointed if the father of the child was alive and fit to be appointed a guardian of the child. The State of Delhi submitted that for these reasons the judgement of the High Court was valid.

The Supreme Court felt that the arguments of the State of Delhi and the Delhi High Court judgement had lost sight of an essential feature of the Guardians and Wards Act, 1890, contained in Section 7 of the same Act. The Act is primarily concerned with the welfare of the minor child. With specific reference to children of unwed parents, the Supreme Court highlighted the fact that both Hindu and Mohameddan law in India recognised that custody of children of unwed parents was given to the mother. Under Christian law in India as well, the domicile of origin of the child belonging to unwed parents is the country of the child's mother at the time of the child's birth.^[3] The Supreme Court observed that when it came to the welfare of the child (of unwed parents), priority, pre-eminence and preference are given to the mother over the father.

The Supreme Court considered the equivalent laws in the United Kingdom, the United States, Ireland, Philippines, New Zealand and South Africa, and concluded that the preponderant was that the unwed mother possesses primary custodial and guardianship rights with regard to her children and that the father is not conferred with an equal position merely by virtue of having fathered the child.

• Indian Kanoon website

This article incorporates text from judicial opinions and related texts from the Supreme Court of India. As a work of the Supreme Court, the text is in the public domain.