To be or not to be – Child Custody!

Judge: “Do you agree to the accusation that you return home late due to work and not give time to your child?”

Father: “Yes, I agree.”

Judge: “Is the instance cited by the complainant on you not being present on important occasions such of your child’s birthday, school functions and illness true?”

Father: “Yes, I agree your honour.”

Judge: “How old is your child?”

Mother: “10 years.”

Father: “9 years 11 months and 3 days.”

Judge: “Why should you be given the custody?”

Mother: “A child needs a mother, of course she needs me. I am the mother; I need to be with her.”

Father: “A child at that age does not need a mother or a father, that child just needs unconditional love. I have not been able to give her time but my love has never been less.”

Judge: “Child, who would you want to be with?”

Child: “My dad.”

Mother: “She understands nothing. She is too small. She needs me.”

The Mother rushes to her and pulls her arm; she trembles with fear and drops letters in her hand. Judge orders the letters to be produced.

Father: “Please leave her, I will be away, and she can be with you.”

The father had written the letter for every single day that he was required and couldn’t be around. The letters poured love, hope, faith and motivation. The last letter was written by the child,

Dear dad,

Nanny told me I am going to be away from you. All the days you came late, I did feel your hand on my head as I slept. When I was ill I read your letter every time before I took medicines. I won the singing competition as I had your all the best card with me.

Please dad, I will not be able to live without you. Please don’t leave me.

Your Princess.

By Law: Child custody in India is governed by the Guardians and Wards Act 1890 and the Hindu Minority and Guardianship Act 1956. The law states that the ‘natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property …. in the case of a boy or unmarried girl- the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother’. However, in reality, it therefore seems that mothers most often win custody battles in our country.

In a major judgement the honourable Supreme Court made a point emphasizing the equality of the mother to fulfil the role of a guardian held that ‘gender equality is one of the basic principles of our Constitution, and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category

In contrast, several years later the Karnataka High Court held that ‘it is the most natural thing for any child to grow up in the company of one’s mother’ and ‘a child gets the best protection and education only through the mother even in nature’

Respecting the existing judicial system I would earnestly plead intervention that our higher judiciary articulates a specific set of guidelines on the matter. In the absence of these child custody matters the decisions lie on the discretion of an individual judge, who drawn from our society is not always free from one or other stereotypes.

References to law and related cases:
Section 6 (a) -The Hindu Minority and Guardianship Act 1956.
The Law Commission of India 83 report 1980.
Child custody Law in India – the Hindu – February 2013.

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