In a significant decision the Supreme Court of India allowed a single mother on July 6 2015, who happened to be Christian, the right to apply for sole guardianship of her young son without needing the consent of his biological father. It spoke of the relative disadvantage of Christian unwed mothers, who are not presumed to be the natural guardians of their children by the Guardians and Wards Act that governs these matters. The court also observed that the Uniform Civil Code envisioned in the Constitution’s directive principles remains an unaddressed expectation.
This is a welcome ruling, one that comes down on the side of personal freedom and equal rights of citizenship. Like a similar judgment last year when the Supreme Court gave religious minorities the right to legally adopt children even if personal law contradicted it, this judgment expands freedom in the familial domain. It shows the way forward even as political debate on the Uniform Civil Code remains stuck in the old arguments between right-wing voices that want to use it as a weapon to efface minority personal laws now that the Hindu code has had to fall in line, and minorities who see it as an attempt to ride roughshod over their right to protect their religious tenets and cultural distinctiveness. Either way, this situation hurts women from minority communities.
Given that much family law effectively hinges on the control and conduct of women, their rights to property, and matters of marriage, divorce, maintenance, etc, abiding wholly by personal law often means depriving them of constitutionally guaranteed equality before the law. Political parties that claim to be sensitive to minority rights also end up bolstering the patriarchs and elders of the community, rather than listening to what the women want and respecting the dues of equal citizenship. On the other hand any attempt by BJP to push a Uniform Civil Code will be fiercely resisted, because in other contexts it stands for a barely disguised majoritarian triumphalism.
Given political stalemate on the larger issue, courts are right to use every opportunity to affirm modern values. By holding up the rights of an unwed mother to be the only custodian of her child’s well-being, the Supreme Court has made a clear point – claims of family and community do not weigh more than an individual’s rights.