INDIAN CUSTODY LAWS AND THE PRAVALENT GENDER DISPARITY By - Devika Tiwari
INDIAN
CUSTODY LAWS AND THE PRAVALENT GENDER DISPARITY
Authored
By - Devika Tiwari
BA LLB 3rd year
Jindal Global Law School
TABLE
OF CONTENTS
INDEX OF
AUTHORITIES……………………………………………………………………
Statues
Referred………………………………………………………………………………...
Cases Referred………………………………………………………………………………….
INTRODUCTION………………………………………………………………………………
AIM AND
OBJECTIVE……………………………………………………..…………………
FACTORS IMPORTANT FOR
DECIDING THE CUSTODY OF A CHILD………………...
EFFORTS TO ELIMINATE GENDER
BIAS…………………………………………………
APPROACH OF SHARED
CUSTODY……………………………………………………….
GENDER BIAS UNDER MUSLIM
LAW…………………………………………………….
CONCLUSION…………………………………………………………………………………
INDEX
OF AUTHORITIES
Statutes
Referred
·
Hindu Minority and Guardianship, 1956.
·
Guardians and Wards Act, 1890.
·
Indian Divorce Act, 1869.
·
Matrimonial Causes Act, 1857.
·
The Muslim Personal Law Application Act,
1937.
Cases Referred
·
Surya Vandanan v State of Tamil Nadu, (2015)
INSC 179.
·
Carla Gannon v. Shabaz
Farukh Allarakhia, (2009) Criminal Writ
Petition No. 509.
·
Nil Ratan Kundu v.
Abhijit Kundu, (2009) SC 732.
·
Bholaram v. Parwati
Sahu, (2011) CHH 38.
·
Githa
Hariharan v. RBI, (1999)
SC 1149.
·
Vishnu Ubale vs Mrs. Archana
Tushar Ubale, (2016) ALL MR 8.
·
Nighat Firdous v. Khadim Hussain, (1998) SCMR 1593.
Introduction
India
is a diverse country which is home to numerous religions and cultures. Muslims,
Hindus, Sikhs, Christians, Parsis, India’s population has mixed set when it
comes to religious communities. Since they all follow different set of rituals
and practices it is very challenging to form laws that can be universally
applied to everyone, especially with regard to family issues. All communities
have their own set of traditional beliefs and practices relating to matters of
marriage and consider it to be a very sacred and important matter. It is only
in recent times that the rate of divorces and separations have increased and as
a result the problems relating to the custody of children has become a huge
challenge. And it is important for the courts to have a good set of laws that
can help in dealing such a sensitive issue.
The
term child custody is used under family law, for defining legal guardianship of
a child who is under the age of eighteen. This guardianship gives the parent
the right to make decisions for the child as well as the responsibility of
raising them. The concept of custody under Indian law can be traced back to
English law. In India, the primary statutes governing custody of children are
the Hindu Minority and Guardianship Act of 1956[1],
Guardians and Wards Act of 1890[2]
and Indian Divorce Act of 1869[3].
Aims
and Objections
This
paper aims to highlight the different considerations that the court takes into
account while determining custody. This paper further seeks to analyze the inherent
gender biases in the Indian laws relating to child custody.
Factors
important for deciding custody of a child
When
custody is concerned it is important that the court does due diligence and
deliberates over numerous factors before reaching a final decision about who
should be awarded the custody. And these factors are, namely, welfare of the
child, parent’s wishes, child’s personal wishes and the child’s sex. Earlier
the basic belief about the mother and child was usually ignored as the father was
always the one who earned more. Even under Hindu law, it is a customary
practice that the father is considered as the natural guardian and has the
right of custody unless the child is of a tender age and the care of a mother
is extremely essential[4].
In 1857, mothers in England got independent recognition after divorce was given
statutory recognition by the Matrimonial Causes Act of 1857[5].
Soon divorced women started challenging the natural guardianship of their
husbands and the English courts starting giving judgements in accordance with
the child’s wellbeing. This further allowed India to start considering the
welfare of the child as the supreme criterion in selecting the custody. In
India, the section 13 of the Hindu Guardianship and Minority Act states the
during divorce proceedings, paramount importance must be given the welfare of
the child. The Supreme Court held the same in the case of Surya Vandanan v
State of Tamil Nadu[6].
Thus, the most important factor which needs to be considered by the courts is
the welfare of the child. It is necessary to pay attention to the child as at a
tender age there should not be any compromises made. The focus should be on the
child’s upbringing i.e., education, health, etc. Recently, on 20th
October 2021, the Punjab and Haryana High Court has rejected to grant the
custody of the child to the mother. Justice Sehgal said that “Though in normal circumstances, when a child is below
five years of age, his/her custody deserves to be handed over to the mother,
who is the best person to take care of the child. Yet, the welfare of the child
is the paramount consideration and the court has to keep in mind all attending
circumstances before passing any such order.”[7] It is essential
that the child’s development is in a conducive environment so that he or she is
able to grow into a good member of the society. Therefore, every decision
should be in the best interest of the concerned child. It is the court’s job to
assess whether the parents will be able to take proper care of the child, and
if they do not believe so, they can award the custody to the close relatives of
the child. However, this primary consideration of the child’s welfare has often
been differently interpreted. In the case of Carla v. Shabaz Farukh
Allarakhia[8],
the Bombay High Court held that the welfare of the child is supreme
irrespective of the rights and wrongs contended by the parents. It was further
held that money or physical comfort is not enough to assess the welfare of the
child, rather it should include the emotional bond and affection between the
child and parent[9].
There have also been many instances where welfare was not taken into
consideration as the primary factor because of the prevailing stereotypes about
gender roles in our society. Over the years, the approach of law has become
more inclusive and has stopped treating children as chattels. Section 26 of the
Hindu Marriage Act[10],
says that if the minor is capable enough to form a judgement, then their wishes
are to be made consistent with the decision regarding custody, but these wishes
are taken subordinate to the primary factor i.e., welfare and are small in
nature and should have no link whatsoever to the wishes of either of the parents.[11]
Efforts
to eliminate gender bias
The
court also has the right to give visitation rights to the other parent, who
does not have the custody rights. In the case of Vikram Vohra v Shalini
Bhalla[12],
the Supreme Court allowed the mother and the child to relocate to Australia and
thus modified the visitation rights. In such a situation, it is essential that
the relocation is in the best interests of the child and not to affect the
other parent. Hindu law relating to custody has a lot of gender bias and has
been reviewed with the view of uplifting women. The section 19(b) of the
Guardians and Wards Act and the section 6(a) of the Hindu Minority and
Guardianship Act are discriminatory in nature as they consider the father to be
the natural guardian without providing any specific reason for the inferior
position of women. This clearly highlights how there exists an age-old
anti-feminine bias and strong patriarchy in our society. Article 14 and 15 of
the Indian constitution provides the right to equality and prohibits any kind
of discrimination. It is strange that despite clause (3) of article 15 which gives a pre-vision of beneficial legislation geared to
the special needs of women and children, women have been subjected to
discrimination. In 1989, the Law Commission in its report proposed the
amendment of the laws in a way that the right to equality is not violated.[13]
Thus, section 19(b) of the Guardians and Wards Act was amended and the custody
rights of the father and mother were made equal. There was no amendment made to
the Hindu and Minority Act. Another effort of eliminating gender bias can be
seen in the case of Githa Hariharan v. RBI[14], which recognized gender equality as one of the
essential principles of our constitution. The court held that both the father
and mother are natural guardians of a minor child and calling the mother the
natural guardian only after the death of the father is discriminatory as well
as against the welfare of the concerned child. It was concluded that the
natural guardian should be the one who is capable of taking proper care and
will take decisions that are in the best interests of the child.
Approach of Shared Custody
The concepts of shared
custody was always ignored by Indian custody laws until the landmark case
of Vishnu Ubale vs Mrs.
Archana Tushar Ubale[15]. In
this case, exclusive custody of a eight year old girl was denied, giving shape
to the concept of shared custody. Instead of awarding sole custody to one
parent, Justice P L Palsingankar gave equal rights of custody to both the
parents and formed a shared parenting plan for the child’s upbringing. Despite
the father’s wish to not take any contribution from the mother and keeping in
mind the financial stability, the court ordered that since both parents are
earning, they must share all the expenses of the child. Thus, the court
recognized the mother’s ability to take care of the child at the same level as
the father. In my opinion, this new arrangement of shared parenting will always
be better for the child as he or she will be less affected. A collaborative
effort from the parents ensures that the child will have a healthy upbringing.
Sadly, till date Indian courts usually appoint a prime guardian and rarely
prefer to award a shared custody.
Gender
bias in Muslim law
Under
Muslim Law, personal law and the custody of a child and the Guardians and Wards
Act deals with the issue of custody of a child. Unlike Hindu Law, there is no
religious law statute for Muslims but there are certain practices present which
are considered to be fundamental. The Muslim Personal Law Application Act of
1937 provides the application of Shariat law in matters of custody of Muslim
children. It states that the mother has the foremost right to custody of minor
children and she cannot be deprived of this right unless she is guilty of
misconduct. This is known as the right of ‘Hizanat’.[16]
The mother’s custodial rights are terminated once the son is 7 years and over
and the daughter has attained puberty and then the father has an absolute right
to hizanat[17].
It is only recently that the courts in India have acknowledged the importance
of equality and have started making more fair judgements without blindly
following the prevalent gender bias.
Conclusion
It
is true that India is slowly becoming more and more gender-neutral in the field
of custody laws but we are still far from what is ideal. The cases mentioned
above are outcomes of certain conditions which may not arise in every
situation. The courts should aim to bring in more gender neutrality as well as
a compatibility between the laws of the past and present. Custody of children
is a sensitive issue and our laws should not compromise the future of the
upcoming generation. To bring in true change, it is necessary to modify and
refine the mindset of the judiciary so that they can identify the deep problems
in matters of custody and can prevent the children from facing the brunt during
divorce proceedings.
[1] Hindu Minority and Guardianship Act,
1956.
[2] Guardians and Wards Act, 1890.
[3] Indian Divorce Act, 1869.
[4] Choudhary A, “Custody of Minor Shall Be with Mother:
SC: India News - Times of India” (The Times of IndiaMarch 4, 2015)
accessed October 27, 2021.
[5] Matrimonial Causes Act, 1857.
[6] Surya Vandanan v State of Tamil Nadu, (2015)
INSC 179.
[7] Malik S (ed), “Child's Welfare Paramount in Custody
Cases, Says Punjab and Haryana High Court” (Tribune india News ServiceOctober
20, 2021)
accessed October 27, 2021.
[8] Carla Gannon v. Shabaz Farukh Allarakhia, (2009) Criminal
Writ Petition No. 509.
[9] Nil Ratan Kundu v. Abhijit Kundu, (2009) SC 732.
[10] Bholaram v. Parwati Sahu, (2011) CHH 38.
[13] Law Commission of India, Reforms in Guardianship and Custody
Laws in India, (2015) Report No.257.
[16] M. Hidayatullah & Arshad Hidayatullah, Mulla’s Principles
of Mahomedan Law,19th edn. (1990).
[17] Nighat Firdous v. Khadim Hussain, (1998) SCMR 1593.