Abstract:
A child is always considered a boon and the apple of the parents’ eyes however, after divorce both the parents want the custody of the child in their favour. The honorable court never sees the prosperity of the parents but of the child to whom the custody matters. The court apportions physical custody to those who have parental skills, adequate financial security, provide a conducive environment for better growth and development of the child. The one getting the legal custody of the child is the one who will be responsible for the growth, development, physical and mental welfare of the child. The one not getting the custody has certain visitation rights. Giving custody of a child to a single parent is one of the toughest decisions, therefore taking in prior caution and examining all the viewpoints in and out with full care and attention, the court pronounces the judgement because the future of child is at stake.
Keywords: Custody, Development, Rights, Welfare
Mother’s Custody:
Indian laws have always stated that both the parents have equal rights of custody however, according to Section 6(a) of the Hindu Minority & Guardianship Act, 1956, the custody of the child of ripe age should be given to the mother of the child. This act is often interpreted as discriminatory between father and mother in nexus to custody rights.
However, the Article 14 of the Indian constitution provides reason and object for such discrimination. In most cases, a child with tender age can only be cared for by its mother other than anyone else. Therefore, the discrimination against the father is valid because it shows some reason or object to achieve, which is the well-being of the child.
Father’s Custody:
It is not necessary that the custody of a child will always be given to its mother. If the minor is old enough to to have a preference and can form an intelligent opinion then the court shall consider the preference. In some cases the custody of a child is also given to its father, keeping in mind all the factors required for earning the custody. In the memorable case of Mridangara J. Hira Lal Suchak v. Neena M. Suchak, the custody of the child was given to the father and the mother got the visitation rights as it was in interest of the welfare of minor, Rinku to be in custody of his natural guardian, his father, the appellant. Sentimental consideration is never an excuse for deciding the custody of the child, but it is the welfare of the minor in determining the custody. The court always pronounces the judgement while keeping in mind only the welfare of the child. The court further says that the child should be treated as chattel and the father should be treated as natural guardian. In some cases, even though the child prefers his mother for his own custody then too the court has to dismiss the same pro
vided that the father proves that the mother is unfit or unstable for the welfare of the child. This can also be done at the tender age of the child. This exception comes under Section 6(a) of the Hindu Minority and Guardianship Act, 1956. If the mother is proven ‘unsuitable’ i.e., abusive, neglected, with improper employment ,failing to provide proper care to the child; then the custody automatically goes to the father, may the age of the child be tender or minor.
Drawbacks to the child in determination of custody:
The battle of custody is the most unfortunate part of divorced families. The benefits of sole custody can be wide-reaching but there are also disadvantages for the same, particularly to those who do not receive it.[1] The non-custodial parent’s visitation to the child at intervals may affect his or her relationship with the child.
Apart from separation, children having a single parent often face usual issues like isolation, hatred, interference, comparison etc. The impact of their peerswho have both parents affects a lot. In some cases, children often develop natural hatred for the other parent for being away from them since childhood.
In some cases, the sole custody owner often puts certain limitation on the visitation of the other parent. Such as limiting the visiting hour, debarring the child to get in
contact with the other parent through any mode of communication, intentionally making scenarios for not allowing the child to go out with the other parent, refusing to hand off the child to the other parent for a scheduled visitation. Between the grudges of both the parents, it is the child who is the ultimate sufferer.
Child’s Custody and Relocation:
Life is all about changes. A change is enough to make things better and help people overcome and accept the harsh past. It is often advised to one or both the parents to go on a vacation or move from the locality after divorce or separation, just for bringing a change. Change of air often leads to better vibes and helps in moving on and leaving back.
Relocation is okay only when both the parents have mutually agreed and bring subsequent changes in parenting plan[1]. But in case of any dispute over the move, the court shall intervene if the relocation is against the interest of the child.
Conclusion:
Determination of a child’s custody is the worst possible outcome of every divorce. The ultimate sufferer are the children and in some cases the non-custodial parent. In anger and hatred for separation, parents often forget about the actual concerns of the child.
Decisions related to the child’s upbringing is are one of the toughest decisions the custodial parent has to undertake on their own for the proper welfare of the child both physically and mentally.
[1]Women’s Law, “What are some pros and cons of starting a custody case?“ [2]https://www.findlaw.com/family/child-custody/custody-problems.html
Author: Debashrita Manik,
a law student from KIIT School of Law,
Bhubaneswar, Odisha
.