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Child’s welfare paramount in custody battles PDF Print E-mail
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Written by The Tribune   

by Nonika Singh

CHILD custody battles in India are often as acrimonious as divorce proceedings. In fact, custody battles last much longer and as parents go from one court to another, children are reduced to shuttlecocks, bandied about from one parent to another.

Under the Hindu law, father is considered as the natural guardian. In 1999, the Supreme Court decreed that mother is also a natural guardian, when well- known author Gita Hariharan filed a petition. Ironically, she went to the court when her application for RBI bonds (for her sons) with her signature as the guardian was rejected. In 2004 came the rider— mother is not always a natural guardian.

The prior right of mother in custody is recognised only for children aged below five. By and large the courts are guided by three rules – the custody of the children in tender years and that of the older daughter should go to the mother. Conversely, father should get the custody of a growing-up son. But these are generalisations and the Indian courts judge according to the merit of individual cases. Financial security, parenting skill and harmonious environment often tilt judicial scales.

In recent times, the law has been, by and large, gender just and has favoured mother. Heartening judgements have declared that mother’s remarriage doesn’t infringe upon her right to custody. In a significant ruling in the Sumedha Nagpal case that hogged newspaper space lately, the Supreme Court verdict, granting the mother the custody of her son, held the child’s welfare supreme. It overruled the father’s affluent status, proclaiming that wealth alone is not a barometer of a child’s welfare. The rulings in the past had overlooked the financial status of either parent.

Nevertheless, aberrations continue to mar custody rulings. Working mothers have at times lost custody battles on a flimsy premise that they can either work or nurture.

The legal fraternity recently raised a demand for a universal child custody law in line with the Hague convention principles. With a rise in the number of NRIs embroiled in custody fights, the problem, they assert is global. They have also made a plea to recognise inter-parental child abduction as an offence. A codified law may set certain guidelines yet there is a strong need to go beyond the statutes.

Under the aegis of Children’s Right Initiative for Shared Parenting (CRISP)—- an NGO in Banglore— over 1,000 aggrieved fathers are challenging the ‘perceived’ legal bias in favour of mothers. Started by Kumar Jahgirdar, former husband of Indian cricketer Anil Kumble’s wife, CRISP contests the popular notion —fathers can’t mother.

Father’s role in parenting cannot be disregarded. The courts do give due deference to father’s love. In one case, the court even sentenced the mother for non-compliance of the father’s visitation right.

Often the child’s wish too is taken into account, yet is not the last word. Courts have disregarded child’s wishes, if there is evidence of tutoring or torturing the child. As is the need, the judgements are invariably not impassioned. Yet nor are the courts completely unfeeling. In a rare example, the apex court moved by the emotional outburst of a 10 -year- old boy reversed its earlier stance and rested the case in favour of the father. CRISP contends that it is rather cruel to make a child choose between parents.

In certain far-reaching cases like where father has been accused of murdering his wife, the custody has gone to the third person, invariably grandparent(s). But in a society where laws are written and interpreted by the patriarchal mind set, where in-laws can conspire to deny a HIV widow the custody of her daughter, where there is a real danger of women being misused and abandoned after producing a male heir, the law has to be sensitised accordingly.

In long-drawn legal battles, women invariably start with advantage zero and the courts must ensure her a level- playing field. Fortunately, the Indian courts, especially the Supreme Court, are rising up to the challenge and delivering justice in the right spirit. Making a departure from the hackneyed line of thinking, it has broadened the ambit of welfare and included moral and ethical dimensions too.

Courts must resolve child custody cases with urgency. Often cases drag on for years. In the intervening period, the child could suffer from parental alienation syndrome and a breach between child and non-custodial parent could damage his or her psyche forever.

In the final verdict, the courts have to be guided by the child’s welfare, which undeniably rests in both parents owning up responsibility (even after the divorce) and not snatching each other’s rights— particularly visitation rights. The parents should not use children as tools to settle scores. The blame game of the feuding partners must end between themselves. The vitriolic must not spill over to young impressionable minds. Hostility and resentment ought to have no place in a child’s life.


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