Open Access Research Article
RISING GENDER NEUTRAL CUSTODIAL RIGHTS IN INDIA
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Article Details
RISING GENDER NEUTRAL CUSTODIAL
RIGHTS IN INDIA
Authored By - Bakyashree V
SASTRA Deemed University
ABSTRACT:
Marriage is considered to be the most
sacred institution in our society and divorce was considered to be a socially forbidden
thin is past century. But now we can see a rise in the rates of Divorce in our
country. This article provides a detailed information of custodial rights
available for parents in India along with judgements of High court and Supreme
Court. Visitation rights are basically given to the noncustodial parent while
the custodial parent gets the custody of the child. It also provides a wide
view on the Indian laws that is governing the custody rights of a child. The
report will also discuss about the reason for increasing divorce rates.
Following this, the article will enlighten the visitation rights of the fathers
in India and the gender equality with relevant case laws.
KEYWORDS: Divorce, Custody, Visitation Rights, India
INTRODUCTION:
Every time a married couple decides
to divorce either mutually or via judicial separation the question of child
custody arises and the burden it put on the court to resolve such issues. In
such case if one spouse gets the custody rights the other get the visitation
rights. Nowadays even the court grants visitation rights to the grandparents of
the child. Basically, the custodial parent gets the primary responsibility to
take care of the child in their education, medical, emotional and physical
well-being, while the non-custodial parent has merely the right to visit and
access the child. Mostly if the child is a minor court mostly grants the
custodial rights to the mother but both the parents have access to the kid
though the physical custody is given to one custody. The court decides mostly
on keeping in mind the child’s best interest. All these decisions includes if
there is any domestic violence, abuse or neglect in any incidence in taking
care of the child or if one parent cannot provide for the needs of their child.
DIVORCE IN INDIA:
When compared to other countries
India is considered to have the lowest divorce rates[1]
which is estimated around 1.1% but in recent years we could see the rise In
rates from 50%-60% especially in the urban areas. Marriage is considered to be
a sacrament in our country, but in last year’s there has been sharp rise in the
trend of separation of young married couples. Young couples commonly divorce
due to problems with commitment issues, pressure from families, and maturity.
After being married, a couple in India customarily has their daughter-in-law
move in with their husband's family. After the marriage, the family, which had
previously been quite supportive of the girl's career and aspirations, began to
change its tune. They start to ridicule the girl, her profession, and her way
of life and attempt to entrap her in the web of outdated traditions and social
biases.
Lack of communication gap between the
couples, financial problems in the family, Emotional break down of relationship,
insecurities, erratic work schedule, alcohol and smoking, lack of trust[2]
are the contributing for divorces nowadays. Depression has also been the major
reason for divorce in India. Studies shows that depressed people may end their
relationship than the normal people. It causes breakdown and leads to create a
feeling of anger, neglect, violent and abusive to their partner or even their
children. Divorce rates are rising in India. At first view, this would appear
to be a bad thing, but it's actually a positive indicator. An increasing number
of couples are feeling empowered to take charge of their lives and the
discomfort in their relationships, as seen by the increasing divorce rate.
Even though they were unhappy with
one another or experiencing problems in their marriage, many couples in the
past chose to remain together. This resulted from pressure from family members
who regarded divorce to be shameful or unacceptable, and also due to society's
norms. Yet, women now have greater access to education and better career
possibilities than ever before, making it possible for them to support
themselves financially if they choose to end a marriage that isn't working out.
Divorce is now considered as a chance to regain personal independence and begin
fresh rather than as a failure or something to be embarrassed of. In addition,
as women gain more freedom over their life, they don't hesitate to end unhappy
relationships when they fear there is no hope of a happy ending. The Indian
Divorce Act, 1869 governs divorce among Christians, the Hindu Marriage Act,
1955 governs it for Hindus, Buddhists, Sikhs, and Jains, the Dissolution of
Muslim Marriages Act, 1939 governs it for Muslims, the Parsi Marriage and
Divorce Act, 1936 governs it for Parsis, and the Special Marriage Act, 1956
governs it for civil and intercommunity marriages. The State of Jammu and
Kashmir is not covered by the scope of this divorce Act, however inhabitants of
other states who reside in Jammu and Kashmir are still eligible for these
guidelines and requirements.
There are certain grounds[3]
under which a divorce is filed under Hindu Marriage Act, 1955 such as adultery,
cruelty, desertion, conversion, mental disorder, leprosy, venereal disease,
renunciation, not heard alive and no resumption of co-habitation. Adultery is
always considered as a criminal offense and substantial proof which is required
to be established. In 1976 an amendment was made implying that one single act
of adultery is enough for the wife to get a divorce. There are also certain ground
under which only the wife can file divorce against her husband as when if the
husband had indulged in rape, bestiality and sodomy. If she was got married
before the age of fifteen and renounces before attaining the age of majority.
If there is no co-habitation for one year and the husband rejects the judgement
of maintenance awarded to the wife by the court then she can approach the court
for divorce. If the marriage is solemnized under the Hindu Marriage Act and the
husband has again married another woman though the first wife is alive.
CHILD’S CUSTODY:
Custody is generally a legal term
regarding the guardianship of a child after his/her parents’ divorce. Custody
can be claimed by both mother and father. The custody cases are decided
according to the laws of the Guardian and Wards Act, 1890. As said earlier
these are certain based upon which the court grants the custody right to the a
partner those are on the basis of who can keep the child safe, ethically bring
up a chid by teaching values, discipline and customs if the child is brought up
in a unethical background then they may act against the societal norms and go
in wrong path. The court also decides on the basis of good education to be
imparted and the is concerned about the economic well-being of the
guardian. In India, people prefer joint
custody to sole custody. If the parents are unable to come to an agreement
regarding joint or sole guardianship, the court will decide who will have
primary custody of the kid. If the parents cannot agree, the court will
typically ask both of them what they want.
Physical custody, joint custody,
special guardianship, partial custody, guardianship of minor children, custody
right of children who can claim it are the types of custody in India. But the most prevalent custodies are physical
custody, joint custody and legal custody[4].
Physical custody is basically awarded to a parent who will take care of the
minor child and who will be under the protection of that parent while the other
parent is provided with periodical interaction and visitation rights. The
reason for providing such custody is to award a better life to the child in a
safe and peaceful environment and also to make sure that child is not deprived
of love and affection of the visiting parent during his or her formative age.
Joint custody doesn’t actually mean
that the parents have to live together to take care of the child it means that
both the parents will take care of the child on turn basis. The courts also
believe this to be the best for the welfare of the minor child as the child
will get the care of both the parents and still the parents get to be a part of
their child’s life. When a divorce gets ugly the spouses go for legal custody
where the court decides who gets the custody of the child whether the mom, dad
or grandparents such as legal guardians.
INDIAN LAWS GOVERNING CHILD
CUSTODIAL RIGHTS:
The custody of the child is governed
by a number of laws. The best interests of the child are taken into
consideration when the court chooses who will receive custody of the child. The
parent who has been given custody is in charge of the child's welfare. If the
courts think it appropriate, the other parent (noncustodial parent) is given
visitation rights. We all know that India is a secular nation that consist of
several communities so India has different laws [5]to
deal with issues that arise in society. The Hindu Minority and guardianship act
1956 states that in case of divorce a mother has to file for custody of the
minor as she is not assumed to be the natural guardian. Section 13 of the Hindu
minority and guardianship act also states that father also have the right to be
a guardian of a minor child provided for the child’s welfare but if the minors
age is 5 and less than 5 then it is automatically assumed that the mother is
the natural guardian of the minor child. In the case Surinder Kaur Sandhu v. Harbax Singh Sandhu,[6]
it was held that the father is the
son's natural guardian according to Section 6 of the Hindu Minority and
Guardianship Act, 1956. Nonetheless, that clause cannot supersede over the
crucial factor of what is in the minor's best interests.
There are also other acts that
governs the custody of divorces they are Hindu Marriage Act 1955 where in
section 26 it is given that child's maintenance and education only if both
parents follow Hinduism. Within 60 days after the day the notice was served,
the orders can be made at any moment and supersede the current decree. granted
visitation rights and the special marriage act 1954 says that the right to
custody of the child if the parents are divorced or follow different religions
then the court may issue orders, judgements, revisions, etc. regarding child
support at any time and may decide whether to issue the final decree within 60
days after the date of service these are the Hindu laws that regulates the
transfer of custodial rights after a separation.
A father is regarded as the minor
child's natural guardian under Muslim law, regardless of whether they belong to
the Shia or Sunni sector. Even after her husband's passing, the mother is not
accorded the title of natural guardian. This indicates that, following a
divorce, even if the mother has custody of the minor, a father will have
guardianship under Islamic law. After a divorce, the mother may have custody of
the child, but the father continues to be the child's guardian since he can
make decisions regarding the child's movement, education, religion, and other
significant issues. According to Christian law The Divorce Act of 1869's
Section 41 governs a child's custody rights after the divorce of a Christian
parent. The welfare of the child is essential because the parents must
demonstrate that they are capable of raising the child.
The court may deny custody if it is
unsatisfied with the parents' capability. These are the laws governing the
custody of child of different religion in India. In Gaurav Nagpal v. Sumedha Nagpal,[7]
it was held that Children are not
their parents' mere chattels or toys. The guardian court is expected to strike
a fair and just balance between the needs of the minor children's welfare and
the rights of the parents in the event of a dispute between the mother and the
father. In the modern, changed social conditions, parents' absolute control
over the destinies and lives of their children must yield to considerations of
their welfare as individuals so that they may grow up right away balanced to be
useful members of society.
The Guardians and Wards Act, 1890
also governs the custody of child in India which states that this act is a
secular law that regulates the questions of guardianship and custody for all
the children who are living within the territory of India irrespective of their
religion. According to the case Athar Hussain v. Syed Siraj Ahmed,[8] the Court may order interim custody and
protection of the minor's person or property under Section 12 of the Guardians
and Wards Act of 1890. As Section 12 gives the court the authority to issue any
order it sees fit, the court must be led by the welfare of the children while
deciding the issue of interim custody. The same considerations that must be
used when deciding on guardianship also need to be made when deciding on
interim custody. In situations of custody, the strict guidelines for an interim
injunction do not fully apply.
VISITATION RIGHTS OF FATHER:
Our country basically run by the
principle of Doctrine of Parens Patriae. According to the principle, the court
must make a decision prioritising the welfare of the child. Visitation rights
are therefore considered as being of utmost importance because they enable the
child to build a bond with both parents. In general terms visitation rights may
be awarded to a noncustodial parent after the divorce or in during the child
custody proceedings. Visitation rights are granted to the non-custodial parent
to protect the child and also to avoid conflict between both the parents. If not
equally, the child has a right to spend a substantial amount of time with the
non-custodial parent. The parents or even the court will make an effort to
allow the parents to mutually decide on a visitation schedule and the rights
granted to the noncustodial parent. Visitation must be seen as something that
is done for the child's benefit. Grandparents can be granted visitation rights
in addition to a biological parent. When a child is less than age 5 the court
usually gives the custody of the child to the mother as it is the crucial age
that the child needs the care and affection of the mother more than the father.
The Supreme court in a landmark
judgement held that if the visitation application is attached along with the
custody case then the court must take cognizance of it as soon as possible. The
court should also make sure that the child is getting to meet the father or the
grandparents after getting the visitation rights. The court shall also order
the mother to bring the child to any public institution to meet the father.
Roxann Sharma Vs Arun Sharma[9] In
the said case, Hon’ble Supreme Court of India has held that on account of
dispute between husband and wife over the custody of the minor child the
custody the child below the age of 5 years, was given to the mother, who was
highly qualified than husband and had regular income from salary. But
visitation rights were given to the father. In case of instability of the
mother in regard of financial issues the court may ask the father to provide
the mother with maintenance. A court
generally passes a visitation order in favour of the noncustodial parent
establishing rules regarding the visiting time and place.
Not only the noncustodial parent gets
to custody rights but also the grandparents are allowed to get the visitation
right from the court. Sometimes the mother refuse to show the children to their
grandparents when creates mental agony to the them. So, the law has given
visitation rights for the grandparents. In Neelam Vs Mann[10]
Singh court held that Welfare and interest of the child is paramount. A child
who is residing with grandparents for the last several years become emotionally
attached to them. In such circumstances
custody of the child should remain with grandparents. Visitation rights to the mother also
declined. In a 2022 case a grandfather filed petition for visitation rights of
his grandson through his son in the Bombay High court. By considering the fact
that his health has been declining since June 2021 and that he likely won't be
able to wait for the custody issue to be decided. In light of the fact that
children have a right to receive love and attention from their parents and
grandparents, the High Court gave him the right to visitation at regular
intervals. It is very crucial for the children's general wellbeing and personal
growth.
The non-custodial parents are
entitled to visitation rights such as thorough the order of the court of law,
dealing with the custodial matter at hand. Then the order which is granted by
the court should make sure that the child is having frequent contact with both
parents also to ensure the welfare of the child. Since the non-custodial
parents should also have an equal opportunity to spend quality time with the
child on vacation, weekends and festive holidays. During the child visits the
noncustodial parents is responsible for the care and safety of the child. The timing and other rights are determined by
the court by considering certain details such as age of the child, distance
between the homes of custodial and the non-custodial parent. Generally, the
holidays are mostly preferred for child visits.
It's important to be highlighted that
the court has full authority to determine how, when, and where to enforce the
noncustodial parent's visitation rights. Occasionally, the noncustodial parent
is only permitted to see the child in the family court's children's complex. If
the court finds that the noncustodial parent has violated his or her right or
disobeyed the court's orders, it may cancel the visitation privileges granted.
In case the custodial parent files a complaint or an injunction in the court to
deny the visitation rights of the noncustodial parent the court on the basis of
the complaint may grant so. The court may hold a hearing to determine if the
noncustodial parent is unfit to have visitation privileges because of his or
her inappropriate behaviour towards the
kid or propensity to have an immoral impact on the child. If the custodial
parent refuses the visitation rights granted to the noncustodial parents in
that case the noncustodial parents has all right to approach the court to
receive their right.
In Respect to relocation of custodial
parents from one place to another the court can’t refuse the relocation but
will prescribe few measures to the custodial parent deciding to relocate. Such
as the noncustodial parent must get a copy of the custodial parent's notice to
the court indicating the custodial parent's intention to relocate. The
following information must be included in the notice: the address where the
custodial parent plans to move, a reliable mobile number, a brief statement of
the reasons for the move, and a proposed new visiting schedule. The relocation
of the kid to live with the custodial parent is subject to the noncustodial
parent's ability to object in written. The noncustodial parent may submit a
petition to change child support, parenting time, or custody. According to the
court's ruling in Rajan Jairath v. Mrs. Monita Mehta 2013[11]
under Award of Visitation Right under Hindu Marriage Act, 1955, S.26, it is
necessary to consider the wishes of the minors. While the father is a Senior
Manager in a PSU and resides in Faridabad, both parents are claiming custody of
the minor children and are living with their mother in Chandigarh. Father
would not be able to spare enough time to care for the children's maintenance,
education, and health. Due to their extended absence from their father, the
children, who are of legal age, stated in front of the Lok Adalat that they are
not prepared to accompany him. Mother is given custody, and the father is given
visitation rights.
A noncustodial parent may abduct the
child from the custodial parent's home or during school hours in order to
obtain custody of the child, as has been seen in child custody battles. In
Dr. V. Ravi Chandran Vs Union of India & others[12],
a US court granted an Indian couple's divorce and granted them joint custody of
their child. In order to prevent the father's joint custody, the wife took
the child to India. The wife was ordered by the Supreme Court of India to
return to the USA so that her husband could share custody of their kid with her;
if she didn't, her passport would be confiscated, and the child would be in the
exclusive care of the child's father in the USA. A Father has all right to get Visitation
rights to meet his child. The father has all legal right to file case against
his wife.
CONCULSION:
Whenever the problem custody arises
Often, the paternal side was forbidden from meeting the child if they were with
the mother. Also, mostly the court was favourable for not giving the visitation
right. Nonetheless, as long as the custody dispute is still pending, any father
and the grandparents can now request visiting privileges from the court. All
that need to be done is to attach the necessary documents for visitation rights
along with the custody papers. The objective of the reform of the custody laws
is to make decisions regarding cases while bearing in mind the welfare of the
children who are affected by parental separation. This article makes an effort
to assess the visitation rights given to one and custody granted to another parent,
as well as the equality rights available to both parents considering the
wellbeing of the child's life.
[1] Why divorce rates are increasing in
India? Know it’s 5 key points. (n.d.). DNA India. https://www.dnaindia.com/lifestyle/report-why-divorce-rates-are-increasing-in-india-know-it-s-5-key-points-2991666
?
[2] Nayak, D. B. (2021, December 15).
Why divorce rates are increasing in India? Dr. Brahmanand Nayak.
https://www.drbrahma.com/why-divorce-rates-are-increasing-in-india/
[3] Joshi, K. (2019, May 14). What are
the Grounds of Divorce under the Hindu Marriage Act, 1955. IPleaders. https://blog.ipleaders.in/grounds-divorce-the-hindu-marriage-act/
?
[4] Child Custody in India : Types,
Laws governing child custody. (n.d.). Rest the Case. Retrieved March 25, 2023,
from https://restthecase.com/knowledge-bank/child-custody-in-india
?
[5] LIMITED, M. T. P. (n.d.). Child
Custody Laws in India. MyAdvo.in.
https://www.myadvo.in/blog/child-custody-laws-in-india/
[6] Surinder Kaur Sandhu v. Harbax
Singh Sandhu, (1984) 3 SCC 698
[7] Gaurav Nagpal v. Sumedha Nagpal,
(2009) 1 SCC 42
[8] Athar Hussain v. Syed Siraj Ahmed,
(2010) 2 SCC 654
[9] Roxann Sharma v. Arun Sharma,
(2015) 8 SCC 318
[10] Neelam v. Man Singh, 2014 SCC
OnLine P&H 25034
[11] Rajan Jairath v. Monita Mehta,
2012 SCC OnLine P&H 21051
[12] V. Ravi Chandran (Dr.) (2) v.
Union of India, (2010) 1 SCC 174
Article Information
RISING GENDER NEUTRAL CUSTODIAL RIGHTS IN INDIA
Authors: Bakyashree V
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/03/27
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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