With New Custody Proposal, Kids May Break Free From Divorce Tug Of War

28/06/2015 8:34 AM IST | Updated 15/07/2016 8:25 AM IST
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Husband and Wife Arguing with Their Children in the Background

As I walk along the streets of Paris on a trip to watch the Roland Garros tennis tournament, I can't help but observe many children being pushed along on prams by a solitary parent or, sometimes, grandparents. In conversation, the parent often says something like, "I have my son for the weekend" or grandparent shares "My daughter is divorced so I'm helping out". My mind immediately goes back to the Law Commission's recent proposal on shared custody for the children of divorce.

A quick rundown: Justice AP Shah has proposed sweeping changes in the custody arrangements for the children of divorced parents. Essentially he has recommended amendments in The Hindu Minority and Guardianship Act and the Guardians and Ward Act, 1890. The most important aspect of the proposed changes is joint custody of children in the case of a divorce, keeping the welfare of the child as the supreme objective.

According to the 257th Report submitted by the Law Commission, both the husband and wife are using the children as "pawns to strike their own bargains" and hence it has recommended the changes in the existing law by inserting a separate chapter in the Principal Act to deal with custody, child support and visitation issues.

"I have observed many fathers who suddenly become paupers when they come to court to divorce the mother of their children."

Over the years I have seen both fathers and mothers acting mightily shabby on custody matters. Sometimes, it is the mother who uses the child to strike a better deal in the divorce settlement or even to just get back at the husband. I remember one case that started when the couple's daughter was only three years old and then dragged on for a decade. The child has been doing the rounds of the court for 10 years. Every time she comes to court, severe rashes break out on her face and hands. The doctor has said that the rashes are caused by the severe stress of having to come to court. The poor child has also been seeing a psychiatrist to help her to cope with the stress of her parents' divorce. Both parents claim that they love the girl but neither of them is willing to resolve their differences like mature adults and put the teen out of her misery.


It seems the children of divorce are always pulled in two different directions. The warring parents are adamant about getting whole custody, seeming to have forgotten that they both created the child and that they should both be looking after their ward.

But looking after the child also means providing for the child financially. I have observed many fathers who suddenly become paupers when they come to court to divorce the mother of their children. They make their ex beg for even basic maintenance and school fees of the child. They want an account of every penny spent on the child.

The Law Commission has also recommended changes to extend child support from the existing age of 18 to 25 years, keeping in mind the academic and medical needs of the child. This will come as a welcome relief to a client of mine who has been stuck in an abusive marriage for 18 years. She was worried that filing for divorce would result in her husband not paying her son's college fee. This husband constantly threatens to cut off all the financial support to the entire family if my client and her two sons don't toe the line. Since the husband is the primary bread winner in most marriages, this kind of threat is commonly used to keep the family under control, regardless of who is right or wrong.

"The proposed amendment demolishes the concept of supremacy of one parent or the other as the natural guardian."

In many cases, where the court battles are lengthy and litigious, the child stays with the mother even though the Hindu Minority and Guardianship Act of 1956 and Guardians and Wards Act of 1890 both provide for the supremacy of the "paternal right" -- in other words, the father as the natural guardian. The proposed amendment also demolishes the concept of supremacy of one parent or the other as the natural guardian. This will again have far reaching implications as usually the custody is awarded to the mother, with the father being given visitation rights. Now, the father will have access to the child as he/she grows up but at the same time cannot shirk the responsibility of looking after the ward. In such a scenario fathers will not be able to use "work" as an excuse to skip PTA meetings!

About 10 years ago, when I went through my own divorce, I had said in a press interview, "India is going through a turbulent time and the institution of marriage will never die, but divorce is here to stay so we should learn to cope with it in the best possible manner and work towards eliminating the stigma around divorce." By recognising the need for joint custody and also proposing a detailed parenting plan to the court and recognising the grandparents' rights to meet the grandchildren it seems that India is finally waking up to the fact that whether we like it or not, divorce is that unwanted guest that is not going away soon. So we better learn to cope with it -- and coping does not mean giving our children a crash course in misery.

Interesting fact: As I walk into the corridors of the family court I see that the number of "matters" or cases has gone up almost four times in the past decade, and there is a proposal to build a new family court in Mumbai the foundation stone of which has already been laid by the Chief Justice of the Mumbai High Court, Mohit Shah.

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