| TIMES OF INDIA- 27th July,2008 |
Mum, it seems, may not always be the word when it comes to child custody. It has always been believed that the mother is the natural caregiver of a minor child, unless there is a compelling mental or financial reason. But as some recent court verdicts – like the ones quoted in the box – show, the mother may now lose the custody battle due to a new set of emerging social factors too. “It is a fact that certain principles like the ‘tender years doctrine’, which presuppose that it is in the child’s best interests to be with the mother, are now being challenged,” says Sarasu Esther Thomas, assistant professor, National Law School of India University, Bangalore.
Such a challenge may come from different quarters. Last week, a Delhi court awarded custody of a nine-year-old girl to her grandparents because her widowed mother was a working woman. The court is reported to have said that there is a need to review the approach adopted by the judiciary which has often leaned in favour of the mother as a natural guardian, while deciding matters related to the custody of a minor child. In 2005, Bombay High Court denied child custody to a divorced woman on similar grounds. In this case, while granting child custody to her former husband, the court ruled that even though the mother earned more, she did not have time to devote to their eight-year-old.
So the mother, it appears, can either earn her bread or keep her kids. “It depends upon how old the child is, and what’s the nature of the mother’s work,” says Mehak Sethi, senior legal officer with Lawyers’ Collective, a Delhi-based organisation that deals in human rights advocacy, legal aid and litigation. “If, say, the child is above nine and the mother works in a call centre, how does she take care of him/her? So you bring in the grandparents. As long as the mother has visitation rights, it’s only fair.”
Not everyone subscribes to the logic though. “I wouldn’t agree with such a judgement,” says Supreme Court lawyer Geeta Luthra, who works on human rights issues. “Judgements have earlier said that the fact that a mother is working can never be a ground to deprive her of child custody. At the same time, courts won’t give her custody when she is not economically independent. Now you say she can’t keep the child because she is working. You can’t damn a mother both ways.”
Women activists also feel that such judgements may worsen the tussle between a divorced woman and her in-laws. “I don’t support it at all,” says Ranjana Kumari, director, Centre for Social Research, which works on women’s rights issues. “Does it mean that all single mothers should give away their children? It’s unfortunate that so many court cases these days are retrogressive.” She points out that the risk of such verdicts increases when male children are involved. Thomas too says that “there is the patriarchal notion that a child ‘belongs’ to his father’s family. Again, the child may have been living in a joint family set-up, with grandparents who are also caregivers until the breakup of his/her parents’ marriage.”
It’s obviously a tough call for the courts. But not always so. Sometimes the child may just tilt the balance strong and clear. In May this year, Bombay High Court removed an 11-year-old from his mother’s care after he told the judges that although he loved both parents equally, he wanted to live with his father because he was “extremely rich and offered him a very good lifestyle”.
And this, it seems, is not a one-off case. “Mothers often have softer jobs, so the child may not get the financial comforts that the father could provide,” says Luthra, who has seen this trend increase over the years.
Unfortunately, at least for the mother, there is little the court can do when children specify this in front of the judge. “The court does not go beyond the fact that this is what the child wants. In many circumstances, the court may not realise the commercial reason behind the child’s preference,” says Luthra. “It shocks the conscience. But today’s children, especially 9-14 year-olds, are becoming creatures of not love, but of comfort.” Not a comforting thought, that. But then few things can be as disturbing as custody battles.
legal system in India is pathetic .Separation since 2004.Child 4 yrs old. A wife files for divorce due to mental cruelty in 2007.Husband files for custody the following year.Loses in lower court.Files again in high court for interim custody instead of accepting the visitation.Gets visitation for 2 hours twice a month in the lawyers chamber.Case still dragging on.Husband refuses to give mutual divorce unless 14.5 year old son is allowed to spend vacation out of state with him. Reluctant to agree to any compromise.Divorce case on as well as custody on.What is the way out?
sir , please provide me the citation of the case decided by Delhi Court and Bombay High Court where mother was not awarded custody due to her working status and grandparents were awarded.
can u plz provide me the case no. nd other details regarding the last weeks delhi custody case as above mentioned in ur post….
Why there is no look out on step fathers role if child is attached too much than his biotic father,Should not the child be given social right to perform life in normal way , and being noticed as a divorce affected child, creates discomfort in social circle… so what is supreme court waiting for why not consider second mairrage of women as proper medium to raise to her adulthood but everything with consult of child. biotic father will also not be suggested to pay maintenance… Please somebody think of childrens who need proper social nourishment.
Can someone tell me that why access is given to father for his daughter when she is getting mentally depressed after seeing him.and in court there are no cameras to keep watch on every thing.
i am fighting for my kids too since last year my 8 year son wanted to live with the father because of bungalow, plasma t.v., wifi game, pspII, 2 cars and every another day parties of hard drink. when he realise that his father has done the contract marriage and he is going to have stepmother who doesn’t like him very much only keeps him so that she can blackmail her inlaws in all the manner. so he decided to come to me slowing trying shift his stuff but somehow his father came to know about it as it was march time he had his finals so was told to him and me that he will go to his mother for ever after exams. but later on he was kept by saying if u will go to your mother then police will put u in jail and till know some or the other ways my son is not able to even see me nor even exchange word with me.
from last one year my case is filled in family court but till know only 1 trail took place. even by getting order from high court to run the case fast and pass the order on it. it is still pending.
i am so much worried about my son as whole family is very much into alchol. his father mother is around 72, father is of 78 and servant 50 drinks alchol and bidi in house with his father.
actually no one is there to take care of him.
please help me in this matter as soon as possible as much as u can
thanking you atsi (mother)
These days some category of women have considered that life is in favour of them everywhere. In my case at least, my wife skips all her kids responsibilities and transfer to her mother in law and sister in law – right from bathing, eating, dressing for school, homework, playing, etc and finally when it comes to rights she is says court will always favour mother irrespective of what mother is doing to the child before divorce. To me the court must strictly look at all such evidences that a father or mother prove and also take feedback from child (if possible) and understand who use to spend time with the kid, who use to love etc. As said by Murali, the child is already disturbed by the act of parents and later the child is also put on stress to speak all these in the court, later the child start thinking of who is the best person to be lived to see his growth. Totally women have become so arrogant and do all sorts of non sense in life and finally husband should listen to it, pay maintenance etc etc…. our court of law concentrate only on a village side husband behavior where husband dominates wife due to wife being not educated and feels insecure, while the educated calls womens and working womens and totally different. Judgement for each case reduces the crime in india else, in future husband take a different route to resolve the issue which court may also to some extent reposnble for it. My opinon and verdict, no personal or male or female. Txs
Divorce do take place on various grounds. Most common is Cruelty. I have come across a case, wherein husband is drunkard and psychomanic and do beat wife most of the nights. During pregency, he did attack her severaly. Many times she was suffocated with pillows. This did happen even 24hrs prior to delivery. Her delivery was 20 days earlier and docter did suspect this could be due to these physical and mental harressments. Now baby is 2 1/2 yrs old. Wife approached F.C for divorce around three yrs back. Now he approached F.C, for the custody of child. Yes he is a biological father, so he got right. But what about the beating the poor wife took during pregency. When he beats the wife, is he not harming the child she is carrying ? F.C ordered the wife to hand over the child to him for two days in a month. Days are not matter, but what about the suffering poor wife undergone during pregenancy ?
Thank you for giving this great read. See my own!
When grown up and matured parents are becoming creatures of comfort and seeking divorce without any thought for the healthy growth of the child, what’s wrong in child becoming comfort creature? It is the divorced parents who consciously or unconsciously teach their kids that love is of no value. Divorce monger parents are undoubtedly the spoilers of happy life of their kids. Wake up folks and do something more and stretch beyond your capabilities for the better future of your kids. Enjoy yourselves by giving the privilege of having both parents to your kids. Kids naturally deserve both the parents.
You ar right but in at least fifty percent of divorce cases, the health of the child would be greatly affected by the continuing quarrels between the parents so much so that it would be better ifthey are divorced.