It is necessary to lay down laws after consultation with all stakeholders to remove uncertainty and unpredictability in the field of custody and guardianship so that there is no room for arbitrariness. Only then will the best interests of the child be ensured.
Supreme Court of India. ANI
In recent divorce proceedings before the Supreme Court (Himanshu Chordia vs Arushi Jain), it was once again repeated that a child needs the love and care of both parents to be happy.
The Supreme Court’s comments reflect its concern for the child. In a language of family law, this judicial behavior can be well summarized in the Latin phrase, patri parents, meaning the court takes on the role of the child’s parent in divorce and custody battles. The assumption of this role by the court is important because the parents assume the position of adversaries in such legal battles and neither of them can be considered to represent the true interests of the child. Their only motive in such situations is to win over their child to the disputing spouse while the interests of the child take second place. Even in the present case, the parents were fighting for the custody of the child, where each of them represented themselves and not the child.
As much as the court is charged with parental responsibilities in such situations, the real question is: is the court competent to guess the best interests of the child?
A much simpler method of determining the best interests of the child would be to give the child some agency and autonomy in the legal process. They also deserve to have a say because they bear the maximum weight of these family conflicts. Their education, physical and psychological growth and mental peace are affected. Many children blame themselves for the separation. There have also been reports of hypermaturity where children try to act more mature than their age in order to stabilize the home environment. The trauma of parental separations can hamper the overall development of the child. In such a situation, the least that can be done is to ensure that the child is given some leeway in deciding who will be their guardian after the separation.
Article 12 of the Convention on the Rights of the Child provides that the child has the right to express his opinion on all matters concerning him. This can only happen if the child becomes an active participant in these proceedings. But the law does little to guarantee this.
How much agency does the law allow?
Section 17 of the Guardians and Wards Act provides the parameters that the court must consider when deciding on the guardianship of a child. These factors include the age, sex and religion of the minor, the character and quality of the proposed guardian, and his closeness of kinship to the minor, the wishes, if any, of a deceased parent, and any existing relationship or earlier of the proposed guardian. guardian with the minor or his property. The provision further states that if a minor is old enough to form an intelligent preference, the court may consider that preference.
This provision is an amalgamation of paternalism and liberalism, in which the court is supposed to look at factors such as age, sex, religion, etc., and make the best decision in order to benefit the child, depending on what which he considers to be fair. The court can sometimes look at what the child wants, as this is also what Article 17 requires. However, the wishes of the child cannot be checked several times because he is too young to express his wishes. It can also occur when one parent tries to influence the child against the other in order to cause parental alienation syndrome. According to this syndrome, the parent who has custody of the child tries to poison his brain against the other parent, thus making the child more inclined to stay with the parent who already has custody.
This mainly happens because children do not have the required understanding and knowledge of court proceedings and court proceedings are not very child friendly.
Conventional Morality in Law:
In addition, there is the problem of deeply entrenched conventional morality that continues to plague our laws. For example, the Hindu Minority and Guardianship Act endorses the tender age doctrine that the child up to the age of five is best with his mother; she is the best person to care for a young child as she has “genuine love and affection” for the child. This was also the case in Bimla and others v. Anita and others.
Another manifestation of a social bias can be seen in Section 6A of the Hindu Minority and Guardianship Act. The natural guardianship of the child belongs to the father. It is only after the death of the father or when he has been declared unfit to be a natural guardian that the mother becomes a natural guardian. This provision, again, deprives women of agency and reinforces gender roles.
Because of these stereotypical statutory constraints imposed on the court, the best interests of the child are even further ignored.
Unanswered questions in the law
There is no legal provision in India that deals with visitation rights. The courts have set all the standards, rules and regulations for the same. But to reduce the discretion and uncertainty that exists in this area, it is important to have a law in place that deals with the same thing.
Moreover, the concept of joint guardianship is not very developed in India. In the case of KM Vinaya c. B Srinivas, the court gave joint guardianship to father and mother. But even this concept has not been laid down in any law. The 257e The Law Commission of India report — “Reforms of Guardianship and Custody Laws in India” — also recommended that the definition of joint custody be introduced into the Guardianship and Wards Act.
The concept of joint guardianship, in which the child would be in the care of both parents for a given period during the year, can guarantee the child’s right to receive affection from both father and mother (Vikas Ahuja vs NCT State of Delhi) and must receive legislative recognition. But there have just been submissions from different jurisdictions, including the one in this case. There is no concrete legal provision to provide the basic rules of the same.
The path to follow
To ensure that children get the required representation in courtroom processes, it is necessary to have a guardian ad litum, that is, the person who assumes guardianship of the minor for the purposes of litigation. Such a person can represent the child’s best interests in court. This concept has rarely been realized in India. However, it has performed well in US courts and can therefore go a long way towards making India’s legal system more child-friendly.
Furthermore, there is a need to review archaic laws in order to adapt them to changing times and social contexts. This is essential to uproot gender stereotypes and serve the best interests of the child in the truest sense. Finally, laws must be laid down after consultation with all stakeholders to remove uncertainty and unpredictability in matters of custody and guardianship so that there is no room for arbitrariness. Only then will the best interests of the child be ensured.
The author is a fourth year student at the National School of Law, Indian University Bangalore. The opinions expressed are personal.
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