The Law Commission of India (LCI) has sought responses from the public for evolving guidelines for adopting a “shared parentage” system in India, based on the premise that this is being followed in the United States, Canada, the United Kingdom and Australia, among others.
Before critiquing the proposed plan, it is necessary to understand the guidelines of custody/guardianship followed by our courts. India, like all Commonwealth countries, started with the legal premise “father is the natural guardian”, which is reflected in the Guardians and Wards Act, 1890. In 1956, while enacting the Hindu code, Hindus were taken out of this common statute and placed under the Hindu Minority and Guardianship Act, 1956. However, guidelines followed during matrimonial litigation across different personal laws were similar.
Right from the time when the Guardians and Wards Act was enacted, till about the Sixties mother’s role as the primary caretaker of children of tender age was recognised and she was granted physical custody, but this was transient. On allegations of immorality, unfit mother or remarriage, she could be deprived of her child/children’s custody. A father could not similarly be dislodged from his hallowed position for neglecting his children, for being violent, abusive or immoral, or remarriage. This placed the rights of divorced/separated mothers on a slippery ground.
It is against this unjustice, the principle “best interest of the child is paramount” evolved, making a dent in the prerogative of the father to be the natural guardian. Today this principle is followed, overriding provisions of any statutory, customary or scriptural law, based on the United Nations Convention on the Rights of the Child (UNCRC). Alongside, the concept of the mother as an equal guardian has also been consolidated, and today, for all official purposes, such as school admissions, bank accounts, passports, ration card, etc. the mother’s authority as the guardian of the child is given due recognition. Acquiring this status has not been easy and involved prolonged court battles.
Just when women have rid themselves of the yoke of the oppressive “father is the natural guardian” premise, it appears that the Law Commission’s proposal is all set to undo the hard-won gains, and place divorced women under a perpetual bondage of their more influential husbands, by introducing the concept of “joint parentage”.
Why is this being done? The explanation offered, relying on the situation in developed countries, is that it is necessitated due to “changing familial roles (male caretakers taking on more child-rearing responsibilities) as well as psychological studies revealing that the involvement of both parents in child rearing is preferable to sole custody arrangements”. It will take away the uncertainty involved in the principle of best interest, and make custody predictable. To LCI’s credit, a sentence has been added, which almost gets lost in the lengthy document: “However, any such reforms adopted in India must be grounded in Indian culture, society and gender relations.”
In all developed countries, divorce settlement includes division of matrimonial property, the right to reside in the matrimonial home and a financial plan for the future security of the caretaker spouse and her children. In addition, these countries also have well-equipped safe shelters for battered women, halfway housing and financial support for single mothers in the event that the biological father is not in a position to provide it.
The situation prevailing in India, across class, is that separation/divorce leads to extreme financial insecurity/destitution. Income-tax returns do not reflect the financial status, and in most cases maintenance orders are reduced to paper decrees as husbands give up their lucrative jobs to spite their wives and deprive their children. Divorce decrees do not include a plan for future financial security.
What is worse, the law absolves the father of his responsibility of supporting his children beyond 18 years, the most critical juncture in a child’s life. When the child is entering a professional/degree college, the single mother is left, literally, holding the baby. Neglect and abandonment of children by fathers, which is a routine affair, is not deemed a criminal offence under Section 317 of the IPC, a provision invoked only when a single mother abandons her child, even under extreme duress.
These should be priority concerns for any law reform premised on the welfare of the child. Yet this is totally absent from the document. On the contrary, the only reference to financial status is found in Point 10 of the 12 points on which public opinion is sought: “Should and how does gender inequality (e.g. financial) affect establishing a shared parentage preference or option? Example: the use of children as bargaining chips to secure maintenance. A sure giveaway as to who is driving the reforms!
It is important to take note that countries mentioned have a presumption that joint custody is not in the best interest of a minor if one of the parents is found to be a habitual perpetrator of domestic violence, child abuse, child kidnap or child neglect. Non-payment of maintenance can surely be construed as a clear case of child neglect.
Further, orders of joint custody can be made only when the parents are amicable, and behave in a matured and civilised manner. It is forbidden where the parents are antagonistic to each other and demonstrate an inability to cooperate. Most cases of child custody are extremely contentious. These occur in urban areas, among the affluent class. It is non issue for the poor. While these cause great anxiety, not just to the concerned parties but also their lawyers and presiding judges, “shared parentage” is not a magic wand which will cause it to vanish from our courts, and cannot override the principle, “best interest of the child is paramount”. The power of trial court judges to ascertain this cannot be taken away by introducing this concept.
What is of grave concern for divorcing women and their children is an unambiguous financial support plan which will bring emotional stability to their lives, a concern that is totally absent from this document. Non-adversarial divorces are those obtained by mutual consent, where a financial support plan as well as arrangements of joint parentage are arrived at between the parties prior to filing, and hence do not warrant any law reform.
So why is this being pushed? A Mumbai-based group, which camouflages its agenda of men’s rights by its name, “Child Rights Foundation” is driving these reforms. Justice Dhingra, the retired Delhi high court judge, a darling of men’s rights groups for his anti-women rulings on Section 498A of the IPC and the Domestic Violence Act, and his derogative comments about women lawyers, is the foundation’s mascot. If this passes, it will be a great setback for the rights of women and children in matrimonial litigation.
— The author is a women’s rights lawyer and director of Majlis Legal Centre based in Mumbai