Having a child is a huge blessing of God and depriving the father even to meet his beloved child is the biggest cruelty!
Today, with the changing gender roles in the society and the family amid ongoing gender politics and war, India is facing an epidemic in almost every household, and irrespective of the fact as to who is on the wrong side of the balance, the biggest sufferer in all the matters that reaches the family courts, are the innocent children of the warring couples, followed by their fathers who are denied custody of their beloved children at the drop of hat.
All the fathers entangled in false cases of gender-biased laws across the country, regardless of colour, caste, creed or religion, fight for the custody of their children and leaving a few lucky exceptions, all are denied custody. A large majority are denied even visitation rights! Have you ever wondered why is that so?
For any father, his child’s custody for him means a very simple and honest concept effectuating his actual participation in the physical, emotional and physiological upbringing, and care of the child. And this is what all the fathers contest for too! A father is always a father willing to go to any extent, sacrificing anything for his beloved offspring with an open heart; entirely ignorant of the fact that there exists no definition of the term ‘custody’ in any law in India.
The laws that govern a child’s custody are actually regarding guardianship, where guardianship refers to a bunch of powers, entitlements and rights that an adult possess with regard to the person and property of a minor.
Laws that govern Guardianship; Only options for Fathers contesting Child’s Custody
Guardians and Wards Act, 1890:This Act regulates questions of guardianship and custody for all children, irrespective of their religion.
Hindu Law: Hindu Laws are applicable to any person who is a Hindu, Jain, Buddhist or Sikh by religion
Hindu Minority and Guardianship Act, 1956: Classical Hindu law did not contain principles dealing with guardianship and custody of children. However, in modern statutory Hindu law, the Hindu Minority and Guardianship Act provide various provisions concerning the matters of guardianship and custody of minor Hindu children.
Hindu Marriage Act, 1955: Under Section 26 of the Hindu Marriage Act, courts can pass interim orders in any proceeding under the Act, with respect to custody, maintenance and education of minor children.
Islamic Law: As per Islamic law, even though the father is the natural guardian, still the custody vests with the mother until the child reaches the age of seven, in case of a son, and until the child reaches puberty in case of a daughter.
Parsi and Christian Law: Under Section 49 of the Parsi Marriage and Divorce Act, 1936 and Section 41 of the Divorce Act, 1869, courts are authorised to issue interim orders for custody, maintenance and education of minor children in any proceeding under these Acts.
Marriages registered under Special Marriage Act, 1954: Section 38 empowers the district court to pass interim orders during the pendency of proceedings and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible.
Guiding principles
Although there is no formula defined for the guardianship or child’s custody matter, still, broadly speaking, courts claim that following points are considered while deciding the same.
As per the courts, financial stability of the parents is considered, but in almost all the cases child’s custody is given to the mother who herself claims to be dependent of the monthly maintenance from the husband;
It is said that courts take into account the mental and physical well-being of both the parents;
It is said that the courts take into account as to which parent the child feel comfortable with. But the decisions almost always come under the presumption that the mother is best suited for the custody of the child;
It is said that the court takes into account any malafide intention of any of the parents, deliberately keeping a blind eye towards all the tactics employed by the said mother;
It is said that courts believe that no specific gender has the right on the child over and above the welfare of the child. But, practically, there is one exception to this that the mother is best suited for the custody of the child, as is presumed by our gynocentric judiciary;
The judge has the full right to decide what is best for the child;
It is said that custody should be decided based only on the child’s welfare, safety and growth, which the courts presume can never be possible with the father;
Courts understand that the child should not be used as an instrument to inherit the property in cases of divorce and maintenance, but overlooking the principles of jurisprudence and natural justice, courts allow wives to play all their shenanigans;
It is claimed that through its decision, the court makes sure that the child is not abused and their healthy development is ensured. But they overlook the evident price of fatherlessness!
Courts ignore the fact that a large majority of youth suicides, children victim of drug abuse, pregnant teenagers, homeless and runaway children, juveniles in shelter homes, children that exhibit behavioural disorders, violent children motivated with displaced anger, school dropouts are from fatherless homes. Courts ignore the fact that the children become victims of Parental Alienation Syndrome!
Conclusion
Custody battles in courts is a quagmire where the father fights for the rights and wellbeing of the child, the mother fights for her own rights under the garb of child's rights and thereby use the child as a tool to compel the husband to surrender to her unjustified and illegal demands. And almost always whenever any agreement around the child custody happens, it reflects more of the mother's interest, instead of the child's. Reason being that the child himself is not a participant in the process!
Courts pretend that their prime focus is on the best interest of the child, where his interests are primarily defined and decided only by the mother, without any inputs from the father.
It's high time that the government implements Law Commission's Report No. 257 (May 2015) regarding Reforms in Guardianship & Custody Laws in India, that recommended adopting ‘shared parenting system’ in the country, to safeguard not only the child's rights but men's rights too!