On July 7, the Supreme Court had to ask the country to grow up and accept the fact that a woman can take good care of a child all by herself. At least, that’s what the Supreme Court’s judgment on an unwed mother’s guardianship of a child born out of wedlock amounted to saying. While declaring this, Justice Vikramjit Sen also overturned a judgment by the Delhi High Court, which had opinions to the contrary.

Across the country, the SC judgment was hailed as a landmark one. In India where thousands of women still live behind suffocating patriarchal barriers, the court’s endorsement of a single woman’s power and right to bring up a child alone came as a breath of fresh air. In India’s traditional moral framework, being a single mother anyway touches raw nerves. A single mother is an object of pity at times, an object of relentless criticism at others. And to have a biological child out of wedlock comes with staggering promise of social stigma and shame. However, though the court recognised the same, it didn’t quite register a protest against it through its judgment.

 The  SC judgment opens with noting the predicament of a woman who found she couldn’t put the name of her son as the nominee to her savings and insurance policies. The irony here is, the woman has enough financial liquidity to have savings, insurance etc and is therefore in no dire need for the support of a man to bring up her child. She didn’t seek the same either. However, it was the convoluted system in the country, which sought to tell her otherwise by insisting that the child’s biological father be identified in official documents. Now, what role does the name of a man serve in a child being identified as the legal heir to his mother’s assets, no one knows.

Supreme Court of India. AgencySupreme Court of India. Agency

Supreme Court of India. Agency

The court explains her situation, but doesn’t call out the hypocrisy. At least, not explicitly.

“The Appellant, who adheres to the Christian faith, is well educated, gainfully employed and financially secure. She gave birth to her son in 2010, and has subsequently raised him without any assistance from or involvement of his putative father. Desirous of making her son her nominee in all her savings and other insurance policies, she took steps in this direction, but was informed that she must either declare the name of the father or get a guardianship/adoption certificate from the Court… .”

In fact, the court notes that the woman doesn’t want her name and her child’s name to be revealed. It shouldn’t have been too difficult for the apex court to figure out the kind of apprehensions holding the woman back. However, while allowing the woman her right to privacy, the court doesn’t elaborate on the need for the Indian society to evolve, so that such fears don’t stalk women.

The judgment states: “Ms. Indu Malhotra, learned Senior Counsel for the Appellant, has vehemently argued before us that the Appellant does not want the future of her child to be marred by any controversy regarding his paternity, which would indubitably result should the father refuse to acknowledge the child as his own. This is a brooding reality as the father is already married and any publicity as to a declaration of his fathering a child out of wedlock would have pernicious repercussions to his present family. There would be severe social complications for her and her child.”

The Supreme Court sums up the fears that dominate women even the educated, financially independent women in the country. However, the court doesn’t quite comment on the social prejudice that makes the absence of a father’s endorsement the cause for ‘severe social complications’. You don’t need to be a genius to figure out what the social complications would be – shame, ostracism and unfair amounts of moral scrutiny. While the court regognises the woman’s fears as valid ones and endorses her right to privacy, it would have been better if it also underlined the thriving moral hypocrisy in the country which fuels such fears.

By noting it without comment this bit of the judgment runs the risk of being read as an attestation of the moral scrutiny an unwed mother is subjected to. Ideally, having a child should not lead to severe complications and it doesn’t in many other countries. As the highest judicial body of the country, maybe, the Supreme Court needed to also criticise the root of the ‘pernicious repercussions’ it is talking about.

Even more ironical is the fact that later, the court does observe that a lot of women are choosing to bring up children alone. “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,” the judgment states. Maybe then, it become even more necessary for the court to call out the hypocrisy of censuring such women?

Following that, citing the laws of several other countries, the court then opines that a mother is ‘best-suited’ to take care of a child born out of wedlock. “Avowedly, the mother is best suited to care for her offspring, so aptly and comprehensively conveyed in Hindi by the word ‘mamta’,” the court observes in the judgment. However, this statement as slightly problematic since it suggests that a man, in the place of the woman in this case, would be incapable to take care of a child out of wedlock.

The court identifies ‘affection’ or ‘mamta’ as the reason why the mother should have the right to a child born out of wedlock. With this statement, the court runs an otherwise progressive judgment into the swamp of traditional “Men are from Mars, Women are from Venus” gender stereotypes perpetuated by patriarchal social discourses. While this judgment is being hailed as a great comment on gender equality, this statement defeats that claim, designating affection as a quality of a woman alone. A woman shouldn’t be given the right to a child because her gender comes with a notion of mamta attached to it, she should be given custody if she can successfully and independently bring a child up by herself.

More so, while it tries to encourage women, by suggesting that women possess motherly qualities by virtue of her gender, the Supreme Court inadvertently snubs women for whom the mamta of motherhood is not their defining characteristic.

However, this isn’t the first time that the Supreme Court, while delivering a seemingly progressive judgment, seems to have inadvertently endorsed patriarchal narratives around gender. A few days back, while rejecting a Madras High Court order on mediating with a rapist, the court said, “There should be no mediation and no compromise in rape cases, a woman’s body is her temple.” The statement not only invited unnecessary religious association but it also tied a woman’s body to her self esteem. Rape is criminal and reprehensible not because the body is a place of worship.

While it is necessary for the court to acknowledge social realities, and every step forward is a step in the right direction, it’s important the Court does not unwittingly perpetuate the same stereotypes that relegate women routinely to the Women and Child Welfare ministries.

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Judgment on unwed mothers: SC may have fallen into the patriarchy trap