Introduction to Children and Divorce: A Socio-Legal Approach
This article aims at throwing light on the children having a tragic and traumatic experience due to the divorce of their parents. These children sense vulnerability due to the disintegration of their family. Jayna Solinger, states that “Divorce, in any circumstance, rips a child apart, emotionally and psychologically, thwarting upon the child’s wellbeing”
A child going through the situation of its parents divorcing has a vast impact on its state of mind and thus, the child’s behavior, social relations, and personal relations are vastly impacted.According to F. Furstenberg and C.W Nord, Divorce is an extremely disturbing experience for all children depending on the age or maturity level.
Divorce is intensely distressing for children. Due to the stigmatization of divorce, a child faces a tough time attempting to be accepted by the society. In a socio-economic purview, children who experience their parents’ divorce have lower educational prospects than children from intact homes.
Children of older age may assume hyper maturity as they undertake tasks of adults to support their custodial parent’s household which is more common in the cases of single parents, thereby strengthening the parent-child relationship.
The Conflicting Parents Child Rights & Interests
This concept of “rights” faces a difficulty because the interests and rights of the parent may conflict with that of the child.
Olsen in “THE MYTH OF STATE INTERVENTION IN THE FAMILY” states that parents are seen as protectors of their children’s interests but their interests may differ vastly from those of their children.
A arising hindrance in defining the parent and child rights exclusively of each other is separation of the two identities. The idea of according equality rights in the specific context of Article 14 of the Constitution of India to children is then relatively confounding. Equality thus should be looked into especially keeping in regard, the rights of children.
Nancy B. Shernow in “RECOGNIZING CONSTITUTIONAL RIGHTS OF CUSTODIAL PARENTS: THE PRIMACY OF THE POST-DIVORCE AMILY IN CHILD CUSTODY MODIFICATION PROCEEDINGS” states that Parental right to raise children is fundamental even though not expressly mentioned in the Constitution. Hence the traditional approach which recognises the parental rights over the rights of the child led to the doctrine of Parens Patriae.
Rights of Parents and Children Involved in Custody Cases
A divorce may be followed by prolonged conflicts over the custody of minor children. Therefore analysing custodial arrangement becomes vital. The obligation to take care of, supervise and control may be defined as the custody. The custodial parent may also be obligated to take care of the child’s property.
The basic conflict in social principles in a custody case is whether to treat the child as a detached individual, apart from his/her blood-ties or to emphasize the family unit from the standpoint of the parent. The common law doctrine, ‘Doctrine of parental autonomy’ thus is not easily discarded by the courts and the right to custody arises as a natural right available to parenthood.
The right of the parent to take care of a child prevails against a stranger. However, the case of V. Meenapushpa v. V. Ananthan Jayakumar highlights the custody of the child being granted to grandparents instead of the father. This principally conflicts with the ‘parental autonomy’ which is acquired by parents by the virtue of giving birth to the child which has nothing to do with the intervention of the State. Thus, a custody case conflicts two sets of interests.
Factors Ascertaining the ‘Best Interest’ of Child
The law cannot compel harmonious relations upon all and thus it is difficult to eliminate the harm suffered by a child due to the divorce of its parents. The court can thereby reduce the damage to a minimal by ensuring the child’s rights get attention in custodial proceedings.
Although, there are no binding regulations available to the courts to protect the child’s best interest. The courts generally look into the following:
- Child’s gender, mental and physical maturity as well as his age and of parents as well;
- Emotional connection between the child and the parent;
- Parent’s ability to provide to the child essentials such as adequate food, clothing, shelter, medical care, and education
- Child’s current (established) living pattern which includes elements like home, school, and community.
“However, within the ‘rigors of adversary proceedings’, without separate representation for the child, the Court may neglect important interests of the child in both the outcome and the process of the proceeding.” Mnookin, CHILD CUSTODY ADJUDICATION,39 Law and Contemporary Problems 226, 286-87 (1975).
Thus, it becomes vital for a child to get a guardian ad litem for the determination of the best interests of the child by the court. It is to ensure that the child’s interests receive priority in the midst of other competing interests because the court cannot on its own obtain the child’s viewpoint.
Also, how much the child’s custodial preference is to be given relevance is to be considered by courts on the applicant of ‘best interest’ standards.
Hindu Minority and Guardianship Act, 1956 governs the issues of custody and guardianship. Section 6(a) of the Act defines ‘natural guardian’ in the case of a boy or an unmarried girl as the father, and after him, the mother.
Also, it must be noted that “the father who is the natural guardian would not ‘ipso facto’ become the custodian of the child.” Samuel Stephen Richard v. Stella Richard AIR 1955 Madras 451.
Hindu Marriage Act, 1955 as well as the Special Marriage Act, 1954 favour the child’s view while making a custodial arrangement when the child is above 12, aiming at consistency with their wishes when it comes to maintenance and education.
However, it is seen through cases such as Shaik Moidin v. Kunhadevi on 29 October 1928, AIR 1929 Mad 33 that eighty-five to ninety percent of children of divorced couples are placed in their mothers’ custody.However, the Courts also often extensively look into matters like mental health, financial status etc. of both the parents and the interests of the child while granting the custody of the child rather than moving on a priori notion. Therefore, the facts and circumstances of each case would be the parameters for judging each case.
Mohammedan Law
Under Muslim law, the father is the sole guardian of the child but, the mother has the primary right to custody. Under Shia school, when the boy is two, mother’s right to custody of the child terminates and under Hanafi School, the age is seven. Right to the custody of a minor girl is a available to a till the girl she attains puberty. To add to the flexibility is also the Guardians and Wards Act, 1890, the courts have favoured the best interests of the child.
Other Statutory Provisions
Codified law on child custody came to light in 1890 in the form of the Guardians and Wards Act which consolidates and amends the law relating to guardians and wards. The Guardians and Wards Act, 1890 contains provisions for guardianship in communities except for Hindu and Muslims and lays down that the right of the father is primary. The Divorce Act, 2000 provides the same for Christians. Section 43, Parsi Marriage and Divorce Act, 1936 regulates the same among Parsis.
Effect of Remarriage of the Spouse
A major issue arises when the parent remarries. The Supreme Court in Lekha v. P. Anil Kumar2007(1) ALT 35(SC) held that the remarriage of the mother cannot be taken as a ground for not granting custody of the child to the mother. Similarly in Sura Reddy v. Chenna Reddy AIR 1950 Mad.306. It was held that where a father marries it is not a ground for depriving him of his parental right of custody.
Maintenance for Off-springs of Divorcees
Financial problems can be catastrophic. Studies show that only half of all Court-Ordered child support is paid affecting the child’s daily care, schooling etc. Fall back mechanisms are used such as Extended family members may be asked to act by the courts in such situations.
Hindu Adoptions and Maintenance Act, 1956 Section 20 provides for maintenance under the Hindu law which makes obligatory for the parents to maintain their minor children.
Under Muslim law, the father regardless of the custodial arrangement is required for the maintenance of the children of divorcees [Section 3(b), Muslim Women (Protection of Rights on Divorce) Act, 1986]
Section 43 of the Divorce Act, 2000 which is applicable to Christian contains pro provisions for the minor child’s maintenance.
Divorce cases even involving a child have gained more acceptance in the west than in India, where Divorce is still stigmatized. The children involved face the stereotypical attitude due to the same.
There is a need for formal recognition of the rights of the child involved in parents’ divorce and how the child can be helped through the divorce rigmarole. The primary duty is on the parents to constantly interact with the child and let him/her know the separation of the family. The same ensures the trust of the children in their parents. Interaction would also depend upon the child’s age.
Secondly, it is best in the child’s interest to keep them away from the conflict as well as communication with the non-custodial parent becomes essential. Transitions post-divorce should be kept minimum.
Conclusion
A child’s mental state and psychological balance are deeply affected due to marital disruption between the parents. Bruce et al., in “Families in Focus, Population Council” recorded rise in female-headed households, the scholarly opinion largely asserts that fathers need to take up a larger responsibility and provide for timely maintenance.
To conclude, a more rational approach is rendered by courts when it comes to the divorce cases involving children and it becomes important to uphold the rights of the children. The Indian society also needs to drift away from the stereotypical approach towards children whose parents are divorced and an accepting atmosphere should be created for them so that they become better citizens of the country.
By Maahi Mayuri
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