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Knowing The Sheroes: A Piece Of Work With The Society

Writer's picture: Nirmalkumar Mohandoss & AssociatesNirmalkumar Mohandoss & Associates

India as a country is addressed as “she - the motherland” and we are conditioned in an environment which is portrayed as matriarchal that associates every man’s upbringing with his mother but it is the very same society that lets patriarchy prevail when it comes to questioning the competency of a mother’s identity in a child’s life.


SHABNAM BANU & SANDHYA SRINIVASAN

‘They say the only constant in life is change and that is squarely applicable to the march of laws’.


I believe in women empowerment in its true spirit as a critical aspect of gender equality. We hail from a country where we worship women goddesses however it is not quite the same when it comes to putting women on the pedestal in terms of real life crisis. With changing times and women asserting their rights in all forms, it is astonishing and yet progressive to know that we have reached a middle ground where asking ‘why; and ‘how’ is now redundant and we have accepted ‘this too is possible’ as far as implementation of women’s rights are concerned.


India as a country is addressed as “she - the motherland” and we are conditioned in an environment which is portrayed as matriarchal that associates every man’s upbringing with his mother but it is the very same society that lets patriarchy prevail when it comes to questioning the competency of a mother’s identity in a child’s life. The same society that teaches us that God could not be everywhere which is why he created our mothers contradictorily fails to accept her to be the messiah in the child’s real life. As a lawyer, being the change that I wanted to see, I had the privilege of working on a ground-breaking judgment which was perhaps a first of its kind in India. While writing this article and reading a series of thought-provoking judgments, it took me back on a nostalgic ride to June, 2018 where the case of Mathumitha Ramesh v. The Chief Health Officer and Ors.[1] was decided by the Madurai Bench of Madras High Court putting a quietus to the chaos with respect to the rights of a single mother. A single mother’s quest to obtain her daughter’s birth certificate without the father’s name had finally come to an end. This proposition of law did not seem much convoluted until I tested the waters and realised that there was much more than what appeared to the naked eye.


It all started when the single mother, who had given birth to a girl child at a hospital in Trichy through intrauterine fertility treatment (IUF), intended to obtain a birth certificate without a father’s name as the child did not have a father in real life to begin with. There were logical conclusions to assume why a father’s name would not be required for a child that was born from a treatment and when the single mother was a divorcee herself and her former husband also did not assert any paternal rights much less any man for that case.


However, much to her dismay, the Trichy Municipal Corporation issued the birth certificate naming her friend who had merely accompanied her during the delivery, as the child’s father. Bewildered, the mother approached multiple authorities to rectify the error in the certificate but it was all rendered futile as the requests were outrightly rejected on the ground that the law does not provide for removal of the father’s name. In hindsight we knew that this case was not about its technicalities but about the patriarchal outlook of the society wherein not having the father’s name in one’s certificate was considered outrageous not just by the society but the officer who was a woman herself. To add, the department laughably did not mind having a wrong name as an entry and had a very exiguous outlook. All that mattered was having a ‘father’s’ name which took precedence over the hard hitting realities of life. At this juncture, I couldn't blame the authorities simply because a place like Tamil Nadu rich in its culture and beliefs may not permit an officer to decide on such issues which will necessarily have societal repercussions.


Aggrieved by the conduct of the authorities, we challenged the order of rejection by way of a writ petition before the Madurai bench of the Madras High Court seeking the removal of the erroneous entry of the father’s name. I had no precedents at hand to rely on, but I was determined to set right the biased application of law which was costing a single mother her career wherein she could not migrate abroad with her child.


By placing reliance on the Registration of Births and Deaths Act, 1969 (‘the Act’), read with Rules of the Tamil Nadu Registration of Births and Deaths Rules, 2000, I submitted that the Registrar is well within his powers to correct errors in the birth certificates which should also necessarily include removal of any entry. Further, neither of the Acts mandate the disclosure of the identity of the father in the register mentioned in the Act. Considering in the instant case there was no father at all in the picture, I vociferously insisted that the same need not be pressed upon in the absence of a lawful ground and doing so is only arbitrary and unlawful.


Upon hearing the submissions of both sides, the Court held that there is no legal obligation on the part of the mother to disclose the name of the child’s father in the birth certificate and instead, a duly sworn affidavit by the mother that the child was born from her womb would be sufficient.


Reading the statutory requirements may look so elementary wherein all that was required was to apply the fundamentals of law, however the larger picture was not about the appreciation of facts or the application of law but the acceptance of such laws which was alien to the authorities until 2018. The herculean task came to an end and Tavisha Parera was the first child who had a birth certificate without a father’s name. I can never forget how an octogenarian sweeper from the Madras High Court walked towards me and squeezed my hands and said this precedent will redeem many women and give them the recognition they deserve. This was the most liberating experience to me as a lawyer because I had the opportunity to practice something which I could otherwise only preach. It gave me a sense of empowerment and I could comprehend the feeling of a mother who sought validation this way and wanted to assert her rights that were swamped in the veil of bigotry.


This case was one of its kind and it garnered recognition and validity to the rights of a single mother which made clear the following moral aspects as far as I am concerned:

A. Being a parent is not just about the procreation but the nurture and upbringing of the child and the concerned parent who contributes to this is the one who should be put in the forefront. I am still holding my ground and strongly believe this equation is equally applicable even if this meant a single father asserting such rights.

B. Parenting has no gender and we have to move on with age old stereotypes.

C. A mother can be called the sole parent too.

D. Recognising the rights of women not just as mothers but as the real life providers to the child is a hard hitting truth.


The Kerala High Court took cue from the precedent set by the Madras High Court and relied on Mathumitha’s case to arrive at a similar finding in the case of XXX & Ors v. The Registrar of Births and Deaths[2].


The immigration department in India had made it viable for application of passports for single/unwed mothers wherein women were given separate concessions under their respective categories with the only requirement of a declaration. This was the first stepping stone to my success. It was a welcome sign and the only piece of information I had back in 2018 while dealing with Mathumitha’s case.


I may be criticized for saying this but it is not the first time we are exposed to single mothers and time has stood as testimony of the same. We are privy to our own extended families where the name of a father is retained for a mere formality or only because the society demanded this out of them. The men who have abandoned their families or have been domestically abusive are no exception to this. We know many women who are in lousy marriages and are technically single mothers bound in matrimony. We also know many rape survivors who were forced to retain their pregnancy due to medical reasons etc. I cannot even remotely resonate or fathom the uncomfortable feeling of how a mother would feel to see the rapist’s name in the birth certificate of her child only because the society requires a ‘name’. Just because the laws have now recognised this right of single mothers, it will not change the fact that we have witnessed many women who have toiled all their lives for their children and have still digested imprudent men adorning the roles of caretakers and the patriarchal lords solely because they were taught that this was the right thing to do. Having said that, I also intonate that this will never prejudice the rights of all dutiful men and daunting fathers who are doing an incredible job at raising their children.


As a breath of fresh air there are significant developments in this progressive trend that has been set in motion. To extract a few: In an interesting turn of events the Supreme Court dealt yet another interesting aspect in the case of Akella Lalitha v. Konda Hanumantha Rao[3] wherein it was placed for consideration whether the mother, who is the only natural guardian, can decide the surname of the child and also give the child the surname of the man she remarries. With the deceased father’s parents objecting to the same, the mother approached the Apex Court challenging the direction issued by the Andhra Pradesh High Court to restore the surname of the child from that of his step-father to his late father. The Court further directed that wherever the records permit, the name of the natural father shall be shown and if impermissible, the name of the new husband of the mother shall be mentioned as step-father in the adoption. By setting aside the impugned judgement, the Court has clearly upheld that the rights of the mother are prerogatory and left it to the wisdom of the mother to decide upon the surname of her child.


In a recent case of Vindhya Saxena v East Delhi Municipal Corporation[4],the Delhi High Court came to the rescue of a mother where the father of the child tried to remove the mother’s surname from his minor child’s records on the ground that he was the biological father and the natural guardian of the child. The Court strongly opined that merely on account of being the biological father, one cannot insist that only his name should be used, especially in a situation where the minor child is residing with her mother.


In Githa Hariharan & Anr v. Reserve Bank of India & Anr.[5], the Apex Court interpreted the word ‘after’ in Section 6(a) of The Hindu Minority and Guardianship Act, 1956 to mean not “after death or lifetime of the father” but “in the absence of the father”. Accordingly, the mother no longer has to wait until the death of the father to become the natural guardian of her child. If it has been proved in the Court that the father is unable to take care of the child, the mother is vested with the guardianship. Although this decision did not strike down the section in question for being discriminatory, it is hailed for elevating the mother to an almost equal position of the father as the natural guardian under the said act.


Having perused these judgements, it can be said that the Courts are actively trying to break through the assumptions in law and in society to keep pace with the on-going development in the society.


On a lighter note, I was recently intrigued by the series ‘Shehulk’ that showcased a superhero character of a woman and I tried adapting this concept to real life where a mother dons the role of a shehulk to protect her child and a woman who protects her offspring ought to be given the respect and recognition she deserves.


The goal is not to keep preaching a particular sections’s rights but to ensure that justice is not only done but appears to be done. With great power comes great responsibility and these rights are not applicable to cases where one of the spouses approach the Court to assert rights without the knowledge of their spouse. With every abuse of law, the real victims get overshadowed. Keeping up with the momentum and embracing the progressive outlook dehors the regressive attitude is the need of the hour.


Mother is not just in our land but in one’s identity & existence. Knowing the sheroes : may we know them, may we be them!


Ms. Shabnam Banu is an advocate and proprietor, Shabnam Banu & Associates. She is the counsel for Petitioner in Madhumitha & Ors., Vs The Chief Health Officer, AIR 2018 Mad 228.


Ms. Sandhya Srinivasan is an advocate and associate at Shabnam Banu & Associates.


References: [1] AIR 2018 Mad 228. [2] MANU/KE/2257/2022. [3] MANU/SC/0929/2022. [4] W.P. (C) 7855 OF 2021. [5] AIR 1999 SC 1149

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