The concept of marriage and family has changed with time and the concept of divorce has evolved which was not known to anybody earlier. Divorce may be defined as the final termination of a marital relationship that makes the legal duties null and void. The legal process of divorce consists of many issues that comprise child custody, maintenance, alimony, etc. There is a major change in divorce-based laws from the 20th century and the starting of the 21st century. Before that, divorce was a prohibited act in several western nations such as in Italy it was legalized in 1974, in Ireland, it got legal approval in 1997, in Spain it got legal sanction in 1997, etc.
Statutes governing child custody in India
The child custody governing laws in India varies based on religion, Hindus are governed by the Hindu Minority and Guardianship Act (read with Guardians and Wards Act, 1890); Muslims are governed by personal laws along with read with Guardians and Wards Act, 1890 (secular law); Christians are governed by the Guardians and Wards Act, 1890 read with the Indian Divorce Act, 1869 and the Parsis are governed by the Guardians and Wards Act, 1890. The child custody laws have been evolving in India and all the laws have adopted the uniform practice of ensuring the child’s best interest in mind.
Divorce rates are growing at a high rate across the world that is based on many factors like lack of tolerance, the upraised status of women as they are financially independent now and earn their living; however, males have old notions about them and try to dominate wives, etc. Divorce rates have increased in India at a very high rate and as per studies, 6 out of 10 marriages fail. According to the National Research Council\’s Panel, research was made on \’Violence Against Women\’ which recommended modifying our mind-set regarding women\’s rights[i].
Repercussions of divorce: Adverse impact on children
Many risk factors are associated with divorce and it is a complex process that has many social repercussions. The risks that are associated with divorce are economic challenges, lack of respect in society, psychological impact on children. Children are the worst sufferers in matrimonial litigation and they are the aggrieved ones’ when a dispute occurs between their parents. Intend to minimize hardship to the children, this Act confers power on the Court whereby it may grant temporary custody of any child to the aggrieved person and it may also be granted to a person making an application on behalf of the aggrieved. However, not only on children but divorce hurts adults as well, they have a lower level of mental peace, face economic hardships, and face major health issues[ii].
Divorced couples have a very high-stress level and they interact less in social groups. If we analyze the repercussions of divorce on families then parental separation is connected with high-risk issues that may be social adjustments, academic-related issues for children, separation anxieties, etc. Divorce of parents has major physiological effects on children that are impairing in nature; they face emotional distress due to the separation of their parents. Just imagine the mental state of a child who is 10 years old or maybe less, and asked to choose between the parents with whom he wants to spend the rest of his/ her life. How can a child choose between a mother and a father? For a child both the parents are equally important whom they love unconditionally. It is really bad for the psychological growth of a child and mental torture for them and this can never be justified.
Court’s analysis
There is no set rule that if the child is a minor then the custody shall be granted to the mother only. The court analyzes many factors while granting child custody to one parent, it considers emotional factors, financial stability, sociological aspects, and the utmost importance is given to the child\’s welfare.
Granting custody to father: The High Court ofBombay has set aside the order of the Family Court and it granted custody to the father of a minor boy “in the interest of the child’s health, development and future”. A Division Bench comprising of Justices A.A. Sayed and P.D. Naik stated that it cannot be said that the father is unfit to look after the child. The child is suffering from medical issues and he has undergone surgeries. The father is a doctor and hence he would be in a better position to deal with the health condition of the child and take requisite steps in this regard[iii]”.
Child welfare is paramount
In the case of Rosy Jacobv. Jacob A. Chakramakkal [iv]– The Court while analyzing the object and scope of the Guardians and Wards Act, 1890 stated that it is not merely physical custody of the child but due protection of child’s right including health, maintenance and education is important. While considering the issue of minor’s welfare due importance is to be given to the right of the father who is the natural guardian of the child but if such custody doesn’t promote child’s welfare then he may be refuse such guardianship for child’s betterment. The court further stated that “Both parents have to cooperate and work harmoniously for their children who should feel proud of their parents and of their home, bearing in mind that their children have a right to expect from their parents such a home.”
The Supreme Court in Lahari Sakhamuri v. Sobhan Kodali[v], held that the “best interests of the child” is paramount and “cannot remain the love and care of the primary care, i.e., the mother in case of an infant or the child who is only a few years old.”
In another case of Vasudha Sethi v. Kiran V. Bhaskar[vi], the Supreme Court held that a child’s welfare is the most important concern in a custody battle. It further emphasized that the welfare of the child must get precedence over the parents’ rights.
Joint custody to parents
Joint legal custody or joint parenting means that both parents have equal rights and access towards the child. It includes the child’s education and upbringing, and both the parents would share the physical custody of the child having equal contact with the child.
Child Access and Custody Guidelines focusing on Parenting Plan: Bombay High Court[vii]
Interim Child Visitation Guidelines, 2012
- Within one week from the date of service of summons or after the first meeting with the counselor for mediation (as the case may be) an interim visitation plan shall be drawn by both the parties[viii].
- The basic principle to be followed by the courts is to ensure that the child must spend equal or substantial time with both the parents.
- The court may also direct the parties to mutually decide on a visitation schedule along with the Marriage Counselor within 60 days. Interim access of the non-custodial parent to the child has to be worked out immediately.
- It was emphasized that the visitation right of a non-custodial parent is for the primary benefit of the child. The custodial parent must provide access of the child to the non-custodial parent, keeping aside their disputes.
- If the parents fail to mutually agree then the first alternative shall be to mediate the conflict and if it also fails then the Court is responsible to draw a schedule for the non-custodial parent to meet his child/children.
Recently, the High Court of Bombay observed that a child has the right to spend equal time with both the parents and a father can move an application under the Domestic Violence Act for seeking visitation rights. It is necessary to encourage at least visitation rights of fathers, as it would ensure a child does not lose total contact with his father. The judgment was passed by Justice Prakash Naik, where he emphasized Child Access and Custody Guidelines focusing on Parenting Plan. He stated that the child has a right to spend time with both the parents and it is essential for their welfare and development.
Justice Naik stressed on overnight access at the home of the non-custodial parent must be encouraged so that the children have a close and continuing relationship. The child not only needs the affection of parents but also of grandparents and other relatives including uncles, aunts, cousins, etc.[ix]
The court said that shared and equal guardianship is recommended by the Law Commission. It further clarified that the Judges working on the family laws and dealing with the issue of custody should not hold a view that once the Law Commission has suggested a Parenting Plan; it is binding in all the cases to adopt the same. The parties are not to be compelled for the same[x].
The Supreme Court observed in the case of Lahari Sakhamuri v. Sobhan Kodali [xi], that the child’s psychological balance is deeply affected due to their parent’s dispute. Due protection to child’s rights in case of parental dispute is a proactive step and child should always be given priority while dealing with the sensitive issue of child custody.
Nowadays divorce is growing at a very high pace and it not only destroys the life of two people but it destroys the whole family. It hampers ones\’ personal growth and professional life as well. We always fail to realize that the divorce of parents ruins the lives of children who have no-fault, but they are the biggest victims of domestic litigation. The courts have given the guidelines time and again stressing joint parenting and to ensure that each parent has a continuous presence in the children\’s life[xii].
[i] A study by Crowell and Burgess, 1996
[ii] Strube, M., and Barbour, L. 1983
[iii] https://www.thehindu.com/news/cities/mumbai/hc-grants-custody-of-child-to-father/article33145571.ece
[iv] (1973) 1 SCC 840
[v] AIR 2019 SC 2881
[vi] Criminal appeal no. 82 of 2022
[vii] https://menrightsindia.net/2016/01/various-hc-approve-child-access-custody-guidelines-along-with-parenting-plan.html
[viii] https://terminatorak.wordpress.com/2012/01/23/child-access-custody-guidelines-approved-by-honble-bombay-high-court/
[ix] https://mensdayout.com/bombay-hc-allows-access-between-father-son-after-divorced-mother-withdraws-shared-parenting-consent/
[x] https://www.aironline.in/legal-judgements/2016+%282%29+ABR+206
[xi] (2019) 7 SCC 311
[xii] https://indianexpress.com/article/cities/mumbai/paramount-consideration-is-welfare-of-child-hc-allows-father-48-hr-child-custody-twice-a-month-5435521/
