Catch up on the previous links to this series:
- SC in action in 2015 – NJAC and Yakub Menon
- SC in action in 2015 – Section 66 A and Compromise on Rape
#5. Unwed mother can become sole guardian of a child
ABC vs. State (NCT of Delhi)
In a landmark judgment, a Supreme Court bench headed by Justice Vikramajit Sen held that an unwed mother in India can apply to become the sole guardian of a child, without giving notice to the father of the child and without disclosing his identity.
The Court also directed that if a single parent/unwed mother applies for the issuance of a Birth Certificate for a child born from her womb, the Authorities concerned may only require her to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate, unless there is a Court direction to the contrary.
- The child was born in 2010, and the woman petitioner raised him without any assistance from or involvement of his putative father
- She desired to make her son her nominee in all her savings and other insurance policies
- But was informed that she must either declare the name of the father or get a guardianship/adoption certificate from the Court
- She then filed an application under Section 7 of the Guardians and Wards Act, 1890 (the Act) before the Guardian Court for declaring her the sole guardian of her son
- Section 11 of the Act requires a notice to be sent to the parents of the child before a guardian is appointed
- However, both the Courts (the guardian court and Delhi High court) held that she needed to disclose the father’s name to get his consent while filing a guardianship petition
- Then she filed a petition in SC against ruling of the trial court and the Delhi High Court
- The predominant thought in these jurisdictions, as is in India, is to bestow guardianship and related rights to the mother of a child born outside of wedlock
- The mother need not disclose the identity of the father and include him as a party to the guardianship petition in certain cases
- The ruling relied on the best interest of the child, which requires that the procedural requirement should be done away with
#6. Section 364A IPC awarding death penalty not unconstitutional
Vikram Singh vs. Union of India
The Supreme Court of India dismissed an appeal by a death row convict, and held that Section 364A awarding death penalty as a possible punishment, for kidnapping any person threatening to cause death in order to compel Government or any other person, to pay ransom, is not unconstitutional.
Three Judge Bench of Justices T.S. Thakur, R.K. Agrawal and Adarsh Kumar Goel examined the background of the Section 364A and held that it was enacted for the safety and security of the citizens and the unity, sovereignty and integrity of the country.
About Section 364A:
- Introduced: 1993
- Awards: death penalty or life imprisonment
- For: kidnapping or abducting any person and threatening to cause death or hurt to such person
- Protects: the Government, any foreign State or international inter-governmental organisation or any other person
- Private persons are also covered:
Section 364A is wide enough to cover even cases where the demand for ransom is made not as a part of any terrorist act but also for monetary gain from a private individual.
- 364A deals with ordinary crimes too:
The counsel for petitioner had argued- since the Kidnapping/abduction of a person for ransom is already covered by other provisions of IPC hence Section 364A was added only to deal with terrorist related ransom situations and not ordinary crimes.
However, the SC held that ingredients of 364A are unique, and cannot be found in other provisions of IPC even in the provisions dealing with extortion.
- Rule of Ejusdem generis does not apply:
The meaning of the term ‘person’ can not be restricted to the ‘government’ or ‘foreign State’ or ‘international inter-governmental organisations’ only.
- Section 364A not disproportionate:
Citing various Indian and foreign decisions, the court laid down the principles governing proportionality of punishments
○ Punishments must be proportionate to the nature and gravity of the offences for which the same are prescribed
○ Prescribing punishments is the function of the legislature and not the Courts’.
○ The legislature is presumed to be supremely wise and aware of the needs of the people and the measures to meet those needs
○ Courts show deference to the legislative will and wisdom and are slow in upsetting the enacted provisions dealing with the quantum of punishment prescribed for different offences
○ Courts, however, have the jurisdiction to interfere when the punishment prescribed is so outrageously disproportionate or so inhuman or brutal which cannot be accepted by any standard of decency
○ Absence of objective standards for determining the legality of the prescribed sentence makes the job of the Court reviewing the punishment difficult
○ Courts cannot interfere with the prescribed punishment only because the punishment is “perceived to be” excessive
What is Ejusdem Generis?
- A Latin term which means “of the same kind“
- It is used to interpret loosely written statutes
- Where a law lists specific classes of persons or things and then refers to them in general then the general statements only apply to the same kind of persons or things specifically listed
Published with inputs from Swapnil