There has been a flurry of activity on the personal law front in our country in the recent past. An amendment seeking to add ‘irretrievable’ breakdown of marriage as a ground for divorce to the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 is in the wings. There are also provisions on sharing matrimonial property and waiving the statutory cooling period before a legal dissolution of marriage. Doubtless, personal law reform is a necessity given that most of our laws are antiquated.

A parody of sorts is that the first move to grant divorce on the basis of irretrievable breakdown was initiated by the Law Commission of India in its 71 report more than three decades ago! In the background is the increased incidence of matrimonial breakdown, the Sample Registration System 2010 data finalised recently quotes figures in the range of around 9% for states like Tamil Nadu (1)). Although exact figures are difficult to obtain the factum of increase seems to be unequivocal; the annual number of divorce petitions in a city like Mumbai has doubled since the 1990s (2). A renowned legal scholar and lawyer in the Madras High Court, Geeta Ramaseshan believes that while ‘more divorce cases are coming to court but this does not mean marital discord did not exist earlier’ (3). Others take a contrarian view and a clinical psychologist attributes it to the ‘complete death of tolerance’ (4).

Be it as it may, my concern in this article is to draw attention to another emotional landmine- the issue of child custody. In my opinion, this continues to languish as a neglected corner of our jurisprudence. The flashes of attention that are drawn to it are mired in sensationalism as the recent dispute regarding custody of two small Indian children in faraway Norway and its current chapter in Kolkata prove.

The laws governing child custody in India are the Guardians and Wards Act 1890 and the Hindu Minority and Guardianship Act 1956. The Hindu Minority and Guardianship Act states that the ‘natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property …. in the case of a boy or unmarried girl- the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother’(5). There are numerous connotations this can take, some of these are: that the law reflects our patriarchal social structure and that small children are always better off with the mother... Matters are also complicated by a legal process that does not view legal guardianship to be co- terminus with physical custody of a child.

Over a year ago I happened to meet a leading lawyer in a metropolitan South Indian city to plead my own petition for child custody. A very warm and affable person, she did her best to dissuade me from litigation: in her considered opinion, it was time to do other things such as focussing on a career since my chances of getting child custody were negligible. At best one could file for ‘visitation rights’ and given my modest financial resources she found it unconscionable to waste my money on futile or near futile litigation. At least, in operational times it therefore seems that mothers most often win custody battles in our country. This is not surprising because this is an international phenomenon. In the United Kingdom only 8% of fathers function as single parents (6). In Germany local laws give sole custody to the mother unless she consents to joint custody. In at least one case the European Court of Human Rights has ruled this provision overtly discriminatory (7); this has led to German law makers taking a re- look at their child custody provisions.

The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute’ (8). As if to dispel any doubts on the matter the Court held (vide supra) ‘no statute on the subject can ignore, eschew or obliterate the vital factor of the welfare of the minor’. In a landmark judgement the SC driving home the equality of the mother to fulfil the role of a guardian held that ‘gender equality is one of the basic principles of our Constitution, and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category ‘(9). To the lay person, this was akin to the highest Court in the country saying gender was not a consideration in deciding matters of child custody and guardianship. It was not to be, the Karnataka High Court held several years later that ‘it is the most natural thing for any child to grow up in the company of one’s mother’ and ‘a child gets the best protection and education only through the mother even in nature’ (10). Again it was the sagacity of the Supreme Court hearing an appeal in the same matter which held that ‘we make it clear that we do not subscribe to the general observations and comments made by the High Court in favour of mother as parent to be always preferable to the father to retain custody of the child’ (11). Despite the over- arching observations of the Supreme Court in the matter of child custody it is thus, often, the subjectivity of an individual judge which decides a case of child custody.

A now popular talk show claims that more than 50% of women (which it claims is a conservative estimate) in our country are victims of domestic violence. An enormous amount of media time was spent on the tragedy of Baby Falak, a battered baby. More topically the horrendous rape and subsequent death of another young woman in Delhi was, for days on end the talk of the town. Concurrent with their anxiety to make their coverage of these tragedies an index of their social conscientiousness, news channels spared no attempt at bashing the prototypical Indian male- lawless, abusive, selfish, greedy, insensitive to the plight of women and children and so and so forth. It is unquestionable that violence against women, the solicitation of dowry and the neglect of children are social crimes, that these are prevalent enough to need special attention is also not in doubt. The problem arises when societal prototyping potentially prejudices the delivery of justice. With the phenomenal impact that visual and increasingly social media have on public opinion can we expect fairly that legislation or jurisprudence will be immune?

As early as 1980 the Law Commission of India submitted a report to the Government of India advising it to amend the Guardians and Wards Act 1890, it suggested that Section 6 of the Act (vide supra) be amended so as ‘ to allow the mother the custody of a minor till it completes the age of 12 years’. In its infinite wisdom this was necessary to prevent the father from ‘using the child as a pawn for securing complete submission of his wife’. Fast forward to 2010 where the SC heard an applicant father who was denied visitation rights for a little more than three years, an order of the Supreme Court notwithstanding. In this case the Court opined that the petitioner’s rights stood ‘completely frustrated’ and that the ‘mind of the child has been influenced to such an extent that he has no affection/ respect for the applicant’ (13). It also minced no words in holding that the respondent had ‘wilfully and deliberately’ committed ‘contempt of this court’. Women therefore are not above ‘using the child as a pawn’.

It does therefore appear that when a marriage fails either party, male or female uses the child to browbeat the opposite partner into submission. In the emotional battle of parents the child is often held hostage by whosoever has physical custody. India urgently needs legislative and judicial action to prevent either parent from alienating the child from the estranged partner. An interim measure can always be that a parent who deliberately alienates the child from the other has his or her rights for custody weakened; the underlying assumption always being that it is never healthy for a child to be denied the love and guidance of a biological parent. It is also moot to point out that the absence of these measures inevitably strengthens inter- parental international child abduction since India is not a signatory to the United Nations Convention on the Rights of the Child.

Let us also briefly look at another area of family law jurisprudence- the laws governing prohibition of dowry and domestic violence. It is nobody’s case that these are not social problems in this country. Implementation of the statute has been vitiated to such an extent that the SC held that ‘as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and filed with obligue motive (sic)’ (14). While solicitation of dowry and any violence is indeed reprehensible (and must be met with the full force of the State) is it not shocking that such stringent laws are misused by women and their families? More cogently when will our society mature enough to view goodness or wickedness as part of our innate human nature, not necessarily endowments of our sex?

It is unfair that women will or should give up their careers to stay at home with toddler children it is equally unfair that men should be disqualified on the basis of statute. The need of the hour is a gender neutral custody law; there is however no way to second guess which way our custody laws are headed.

Within the realm of judicial intervention I would earnestly plead that our higher judiciary enunciate a specific set of guidelines on the matter. In the absence of these child custody matters essentially rest on the discretion of an individual judge, who drawn from our society is not always free from one or other stereotypes.

REFERENCES

Tamil Nadu has the highest percentage of widowed/ divorcees in India. The Times of India 05 April 2012.

With India’s new affluence comes the divorce generation. The New York Times 19 Feb 2008.

Why is the divorce rate climbing up? The Hindu 23 Sep 2002.

For space, young couples snap the knot in no time. The Times of India 15 Dec 2010.

Section 6 (a) -The Hindu Minority and Guardianship Act 1956.

Divorced fathers to get more contact with their children. The Guardian Feb 3 2012.

Love before the law: child custody set for overhaul. The Local 2 Jul 2010.

AIR 2008 SC 2262

AIR 1999, 2 SCC 228

II (2003) DMC 288, 2003 (3) KarLJ 530

AIR 2004 SC 1525.

The Law Commission of India 83 report 1980.

2011 1 MLJ (1002)

2006 AIR 670.

Aveek Jayant is on the faculty of the Postgraduate Institute of Medical Education and Research,(Chandigarh) an autonomous institution under the Govt. of India. The views expressed in this article are entirely personal. Email: jayant.aveek@gmail.com

More In: Comment | Opinion