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In the custody of an infinity war

The imperative need to focus on what is best for the child is something that all stakeholders, the law, society, and separating parties are in agreement on.
Last Updated 24 February 2024, 22:26 IST

In a society where traditional gender roles often dictate familial responsibilities, legal battles over custody may sometimes reflect biases that aren’t practical in a more progressive society. Exploring these complexities in the law unveils systemic challenges and underscores the imperative for legal and societal evolution.

“In my experience, I have often seen fathers suffer from not being able to see their children because regardless of court orders, the mother, being the sole custodian, doesn’t allow this from happening,” says Kumar Jahgirdar, president of Children’s Rights Initiative for Shared Parenting (CRISP). “Most men complain about the misuse of the ‘mother’s sentiment’ and have false cases filed against them during proceedings. What we suggest at CRISP is to forget about the idea of father vs mother and focus on the child’s rights, that is what is paramount,” he adds.

This experience reveals a pattern that men in our judicial system go through: “I remember my hearing, and listening to the judge take away my overnight visitation rights after I had had them for almost nine years. I was at a loss for words,” says Nihal Singh (name changed on request), an aggrieved father who felt robbed of his right to see his daughter. Perhaps, this brings us to a point that highlights the intricacies of family courts in India. Can bringing an objective reality into the most personal space of individuals in society be a fair way of delivering judgements? To what extent can an external onlooker read facts and understand what has separated a family? “It is important to understand that unlike other spaces in the law when it comes to family court, what we see is a human problem, it has to do with relationships and is heavily impacted by society. Often the parent who has the custody unwittingly or sometimes deliberately coaches the child to have a negative bias against the non-custodial parent,” says advocate Smita N.

“Deciding custody and visitation is the main disagreement, and in the past, maintenance, domestic violence and dowry harassment would be used as tools against men. I’ve even seen a child who has been visiting her father suddenly speak differently in court due to external pressures,” she mentions.

“I’ve seen it several times, where due to ongoing matrimonial disputes, and a lack of societal recognition of men as parenting figures, fathers often become visitors of their own child and also lose their opportunity at fatherhood as mothers are the preferred first and natural guardian of the minor child unless otherwise proved that she is suffering some mental ailment or the father is unable to provide better financial support,” says Arun Parameswaran, an advocate at the High Court of Karnataka.

This reduction of the familial structure to women as nurturers and fathers as providers is the imminent problem that surrounds the system. It is often that even if the law is written equally, its application adapts to how society evolves around it, and the narrative of predetermined gender roles is not only a failing to children who need their fathers but also an unexpected pressure on working mothers who might benefit more from joint custody. 

“Society has progressed to a point where traditional gender roles are being redefined. We need to look at parents as two people rearing a child rather than confining them to the roles of mother and father. Men are discriminated against because of their gender when it comes to adoption, child custody decisions, postpartum parental leave, and child crises,” highlights Devanshi, a clinical psychologist and couples therapist.

“It isn’t just the courts; it’s also hard for our society to accept a man in a nurturing role. The conversation needs a shift from just the mother or the father as the custodian. In most cases, sole custody is not the best course of action because, in the end, the child will lose a parent regardless of which parent gets custody. Joint custody is the best plan for raising a child, provided that the couple is a capable pair of parents,” adds Devanshi.

The imperative need to focus on what is best for the child is something that all stakeholders, the law, society, and separating parties are in agreement on. It becomes important to recognise that separation or divorce is an issue not detached but distinct from custody. The requirement for objectivity in family law is such that the emotional conflict can be set aside in mediation so that the parties can collectively find the best possible settlement for the child.

The point in divorce proceedings is irrespective of which parent ‘wins’, it is a massive loss for the child and it is a loss of a pre-existing family structure. The other end of the stick, however, shows greener pastures where the bias against men does not always hold true. In the case of Monish Denkar Shah vs State of Gujarat, the Supreme Court observed that the father was also a natural guardian.

Further, the ‘Child Access and Custody Guidelines along with Parenting Plan’, a document enforced by the High Court of Himachal Pradesh, approved by the Bombay High Court, and circulated for guidance by the Karnataka High Court, outlines a relatively new landscape for joint custody and shared parenthood. The document emphasises the need for all matters to focus on the child’s best interests.

“Mothers go in thinking about mother’s rights, fathers go in thinking about father’s rights and lawyers enter defending their clients when in reality the conversation should be about the child front and centre,” says advocate Azhar Meer, lawyer to Suchana Seth’s ex-husband PR Venkat Raman, whose case was in the news recently after Suchana was arrested on charges of allegedly killing her child over a custody dispute. “In my experience, people misconceive the main point when it comes to custody cases, they lose sight of the child’s interests and make it about themselves,” he observes.

“The biases from case to case exist and there is an unfairness in the system but I have seen that more couples are moving towards joint custody. The point is you’re asking a judge who knows nothing about a family to look at a set of facts and decide something so personal.” Bharthi Nagesh, a mediator adds, “The reason women are often primary custodians is also that historically, mothers are the first to act, they can apply for maternity leave and they are observed to make the most sacrifices, it’s how the society around has been built.”

The law is a tool to enable the welfare of society and hence, must evolve with it but unlike crime and punishment or tax and grants, family law is a space where the objective lens of legal writing must become subjective. The rules may be written fairly but signed with the ink of a society’s pressures predetermining which parent is capable and which one is not. Marriage is not transactional and visitation cannot be exchanged for maintenance and at the same time more wealth may not guarantee a happier home.

Custody disputes are riddled with a double-edged sword and when gender comes into the conversation, as important as the domestic violence act, maintenance, and dowry prohibition are in protecting women, there is a space in the law where some men are being wronged due to a lack of equal protection. T

he Indian legal system is overflowing with cases, many of which are resolved before the appropriate investigation into the claims is finished. There are over 40 new cases every day in the Karnataka family court, whether it be case overload, a lack of resources or time, the system needs to be evaluated and viewed through a lens of sensitivity for the circumstances that demand it. 

“I submitted 15 pages in my argument for visitation rights to my daughter, but it took one hearing and it was decided I could see her for two hours on Sunday, every other week,” sums up a hopeful Harsha Viren (name changed on request).

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(Published 24 February 2024, 22:26 IST)

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