DC Debate: Law panel proposal aims to end gender bias
For the children
Mrunalini Deshmukh Vs Meera Bhatia
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Mrunalini Deshmukh
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The law commission’s recommendations to the law ministry were much awaited, keeping in mind the current scenario where in the parents are not able to handle situations. While there are parents who can maturely handle and let the child’s upbringing be the important factor, we have come across an increasing number of custodial parents — to whom the court has granted the custody — make it difficult for the other parent to even see the child. The other parent has to take the permission of the court every time s/he has to see the child.
Complexities arise mostly in cases where the mother is the custodial parent. They live with a constant insecurity that since the marriage did not work the child should not be taken away from them. Secondly, the custodial parent becomes overtly possessive. In some cases, parents use children to get back at their former spouse(s). The law panel has made its suggestions after a lot of research. We need to understand that a child belongs to both the parents. No child would like to be in a situation where s/he has to choose.
We come across cases where the custody has been given to the mother if the child is below five years of age. But that is unfair because the father has an equal role to play since the time the child is born. Therefore, in some ways, these recommendations will help curb gender bias in relation to custody of children post-divorce. Keeping in mind the practices abroad, in the US and the UK, there is a joint “parenting time” for divorced parents, which means coming to an understanding where both the parents can spend quality time with the child. All decisions relating to the child’s health, education and upbringing are taken jointly.
These recommendations don’t just cut across the gender bias but also keep in mind the difficulties a child can face. The courts always have the best interest of the child at heart, if they feel the parent is an alcoholic or is into substance abuse they will come to a conclusion accordingly. Most of the time, if the mother is the custodial parent then she insists on “supervised custody” which means, she would be present in all the meetings that take place between the parent and the child.
The new recommendations, put the child in a better position by keeping the parents’ personal discord at bay.
- (As told to Nishtha Grover)
Mrunalini Deshmukh is a Mumbai-based divorce lawyer
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Meera Bhatia
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The proposal of the Law Commission for joint custody of children to both parents in case of a divorce, saying Indian custody laws must change with times, is a good step but, in some cases, it won’t be appropriate. The welfare and will of the child should be kept in mind before giving joint custody. In many cases the child is not comfortable living with one of the parents. Also, cases involving the girl child should be dealt with a lot of caution. While giving the custody of a girl child, one has to look at factors like the relationship between the parents. Say, for example, if the relationship is not civil and comfortable, then joint custody may adversely affect the girl child.
Another factor that should be kept in mind before giving joint custody is the willingness of both the parents to take care of their child. In many cases, one of the parents just wants to be free and lead his/her life independently. Thus, taking care of the child on a regular basis is not their priority. In such a scenario, joint custody will force the child to live in discomfort with one parent.
Joint custody is a good concept, but it shouldn’t be made mandatory. The decision should be taken on the basis of the relationship the parents share with their children. There are cases wherein estranged parents hardly speak with each other or there is a great deal of animosity. Such an atmosphere is bound to have an adverse effect on the child/children. The courts will have to look at the psychology of the parents before granting joint custody. It’s not only the responsibility of the court to keep a track of welfare of the child after giving the custody. Both parents also need to be cautious.
Joint custody is not always about the financial status of the parents, about who can give a comfortable life to their children. The atmosphere at home and the will of both parents to take care of the child are very important to give a secure upbringing, which should be the court’s main concern. Utmost importance should be given to the choice and welfare of the child while granting custody along with other factors. The decision to give joint custody should, therefore, be taken on case-to-case basis.
- (As told to Preety Acharya)
Meera Bhatia is a former Central government counsel at the Delhi high court
