Child Custody Laws for Unmarried Parents

A legal insight into ‘Child Custody Laws for Unmarried Parents.’

Introduction:
The Indian society functionally thrives on a fulcrum which is the familial establishment. A family is what
forms the very base of our societal setup. All of our lives, in fact, are attributed to aid this setup, and we
see ourselves entering into social contracts and relationships, all for this purpose. Marriage stands to be a
very prominent example of the same; in the sense that they’re assumed to be contractual relationships, to
serve the purpose of procreation and furthering the familial line and establishment across generations.
But what if a child were to be born to an unmarried couple? For whatever reason, if the couple were to not
deem their union fit for a marital pronouncement but have popped a child out in the midst, whose custody
would this child belong to? Which of the parents would be responsible for the child’s maintenance, both
emotional and financial? This article seeks to answer these very questions, thereby shedding light on child
custody laws that are prevalent in our country, in context of unmarried parents.
An Overview:
Every field of law requires a statute for purposes of upholding and regulation; and when it comes to child
custody laws, the statute would be ‘The Guardians and the Ward Act’ of 1890[1]

. And while family laws in
India differ per community and religion, this act adopts more of a secular nature in its functioning, and
thus applies to each and every citizen of India, irrespective of socio-cultural variables such as religion and
caste, etc.
Custody rights, like all other facets of our socio-cultural life as part of the Indian Social structure, are
inherently sexist and tend to give in to gender stereotypes in its most primal of functionalities. These laws
can be said to have taken a turn for the better today, in the sense of it becoming more accepting of
parenting in all of its diverse manifestations and not being as sexist or heteronormative at its onset. But
we can’t quite neglect the fact that our base for custody laws propounds the principle that a child’s
custody is preferably a mother’s until the child reaches the age of 5 years and that the father would
consequently step in as the natural guardian and only upon his death or general apathy towards his child,
could the mother assume charges of a natural guardian yet again[2]
.

Custody rights for children born to unmarried parents:
Children born to unmarried parents often are a topic of extreme social stigma and since the law is nothing
but a reflection of society at the end of the day, laws concerning such custody rights aren’t exactly the
epitome of justice so to speak. If we were to for a moment, move away from statutes and look into
juridical precedents as a way to navigate custody laws of children of unmarried parents, the 1970 Jijabai
Vithalrao case stands to be a prominent case law in this area of study, as it had the child’s custody
assigned to its unmarried mother, owing to factors such as the unmarried father’s general disinterest in the
affairs of his child (born of out wedlock, to reiterate)[3]

. Ideally, the principle held thereon, stated that the
unmarried mother (who gives birth to the child) would stand to be the child’s “sole residential parent and
legal guardian” until a competent court (which ought to be within its jurisdiction and so) orders for
another person to be designated as the same.
Simply put, an unmarried woman who gives birth to a child would automatically gain the child’s custody.
The 2015 ABC v NCT of Delhi case is a recent testament, affirming this principle, and reiterating that the
unwed father would not be given an equal status of a parent or natural guardian as the mother would,
simply on the basis of having fathered the child[4]
.

a) On a general basis-
The Guardians and Wards Act of 1980 is the statute predominantly in use when such instances arise, and

they work in consonance (and are given a superseding authority in the event of a clash of jurisprudential
opinions) with the religion-specific laws that govern marital and parental issues in the multi-cultural
Indian setup. The laws have so been written to accommodate the child’s best interests and not have them
vested in the possible biases of either parent. While each parent would face social stigma so to speak, of a
child being born out of wedlock, the laws framed can be attributed progressive enough, to help eliminate
such stigma and have the society accept parenting in all of its complexities.
Marital status notwithstanding, the Courts do take into consideration some factors, whilst awarding
custody rights generally (inclusive of the option of adoption herein), which are-

1. The parent’s mental and physical well-being,
2. The parent’s legal track record, in the sense of assessing whether there’s any case pending against
the petitioner,
3. The parent’s familial and social relationships,
4. The parent’s financial position, and
5. The child’s wishes1
.

The law also mandates that an unmarried woman cannot be forced to name the father of her child. The
unmarried father can establish his paternity, however, via an acknowledgment and on the establishment of
paternity, can claim visitation rights. The father, however, would ideally owe his supposedly illegitimate
son (the statutes in place state a child born out of wedlock to be illegitimate) the same responsibilities as
he would, a biological son, and for starters, the father can be held responsible for the child’s maintenance.
The caveat would be that an illegitimate child cannot stand for his paternal inheritance, but an unmarried
father can always assign a property share over to said illegitimate child in the course of his lifetime, and
have it account under maintenance, all while the unmarried mother exercises the natural guardianship
rights, especially over the years of nurture.
b) Children born of live-in relationships:
While live-in relationships aren’t exactly recognized and accepted in their entirety, there does stand to be
a particular precedential acknowledgment that children born of such relationships gain. Contextually,
children born out of wedlock are deemed illegitimate but children born out of a live-in relationship, aren’t
deemed illegitimate per se, of course until certain conditions or qualifications for legitimacy are satisfied,
such as the number of years of the couple’s cohabitation (the underlying legal principle is that a couple in
a live-in relationship will amount to a ‘married’ connotation in the eyes of the society)[5]
.

Conclusion:
A child born out of wedlock is a topic of taboo as is, and there can’t be any further progression in the
nature of laws in this regard until the general outlook toward the heteronormative and quite frankly, the
rigid norms of parenting and families is done away with. Thus, presented above, is a general legal insight
into custody laws for children born to unmarried parents.

References:

- ABC v State (NCT of Delhi) AIR 2015 SC 2569, (2015) 10 SCC 1.
- Geeta Hariharan v RBI (AIR 1999 SC 1149).
- Jijabai Vithalrao Gajre v Pathankhan (1970 2 SCC 717).
- Tulsa & Ors v Durghatiya & Ors (2008).
- Vidhikarya, Child Custody Laws in India, Legal Service India E-Journal,
https://www.legalserviceindia.com/legal/article-710-child-custody-laws-in-india.html.

1

[1] Vidhikarya, Child Custody Laws in India, Legal Service India E-Journal, https://www.legalserviceindia.com/legal/article-
710-child-custody-laws-in-india.html.

[2] Geeta Hariharan v RBI (AIR 1999 SC 1149).
[3]
Jijabai Vithalrao Gajre v Pathankhan (1970 2 SCC 717).
[4] ABC v State (NCT of Delhi) AIR 2015 SC 2569, (2015) 10 SCC 1.
[5] Tulsa & Ors v Durghatiya & Ors (2008).