Divorce and custody battles can become a quagmire as the innocent child gets caught up in the legal and psychological warfare between the parents. While both parents have equal rights over a child, no child would like to be in a situation where he or she has to choose one parent or the other.
The ever increasing trend of nuclear families and a manifold rise in love marriages without family support in India are resulting in many cases of divorce. Expectations from each other being high in such relationships, differences arise early after marriage. The kids born out of this wedlock are likely to become hapless witnesses to frequent feuds among such couples.
The law pertaining to the issue involving child custody is the Guardian and Wards Act 1890. A bitter fight over custodial rights after a divorce or the dissolution of a marriage leads to alienation of children and anger towards one or both parents. It is easier for children when the parents mutually agree on access rights but such cases are rare.
Under the law, though the custody of a child can be given to either parent, maximum importance is given to the interests of the child. Either parent does not have a primacy to be granted the custody but the mother usually gets it if the child is below five years. The father can claim the custody of boys more than seven years of age. The principle on which custody is decided is the best interest of the child.
The parent who can take better care of a child’s emotional, educational, social and medical needs is favoured. The capacity to provide a safe and secure environment rather than the earning capacity of the parent determines the custody. The non-custodial parent can get different types of access to the child based on circumstances and convenience. The court can grant daily, weekly, fortnightly or monthly visitation rights. The parents can agree to a one-time amount or a staggered payment at different stages of the child’s educational life.
The Law Commission in a report titled “Reforms in Guardianship & Custody Laws in India” says that a child’s welfare must be paramount in any decision relating to custody and lays down a framework for awarding joint custody wherever possible.
Both parents can be simultaneously treated as natural guardians. Such a move has been hailed worldwide but joint custody needs to be clearly defined. The law lacks the concept of shared parenting. Many cases are reduced to ugly fights for custody. Courts often intervene to stop estranged couples from using their children to browbeat each other.
With a few million Indians settled abroad, custodial rights have international ramifications. In many cases of divorce and fight over custodial rights among couples, children have been brought to India by either parent to evade the stiff law of that country. A plea frequently taken is that the laws of that country or rulings of its courts do not apply to persons residing in India. The parent living in the other country feels helpless in such situations.
Recently the Supreme Court stayed an order of the Gujarat High Court asking a mother to take her eight-year-old child to the UK in view of the judicial order passed there in a custody battle initiated by her estranged husband.
The Law Commission has recommended a jail term of one year for the parents who forcibly take their children to a foreign land following marital discord. Inter-spousal child removal is most unfortunate as children are abducted by their own parents to India or foreign jurisdiction in violation of court orders. The draft Bill also proposed the setting up of a Central authority to discover the whereabouts of a wrongfully removed child.
The Commission report seeks to amend two pieces of legislation--The Hindu Minorities & Guardianship Act 1956 and the Guardian and Wards Act 1890-- to eliminate the bias towards fathers and to provide for both parents to be treated as natural guardians simultaneously.
Litigation for visitation rights and custody is a long-drawn-out process. During this interval, children are separated and alienated from their fathers and grandparents.
PARENTAL ALIENATION SYNDROME
While meeting their fathers on court allowing visitation rights, they hardly interact with them defeating the very purpose of such rights. In a Delhi case, a 13-year-old girl did not look from her mobile phone for one hour. Her father’s desperate attempts to get her attention proved to be in vain. Such behaviour is common among teenagers. They often suffer from the parental alienation syndrome.
In another case recently reported in the media, a man felt depressed from the distance that had cropped up between him and his seven-year-old son ever since his wife deserted him. During divorce proceedings, he was not allowed to speak to his son whom he loved dearly leading him to commit suicide.
The Guardian and Wards Act 1890 is quite old. Its few provisions are not in sync with modern/ changing times and need to be reviewed. The law can be amended to provide for mediation cells and other mechanism for quick resolution of custodial fights and counselling of alienated children to mitigate their sufferings.
(The writer was an Indian Revenue Service officer of the 1965 batch and retired as Chief Commissioner of Income Tax)