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.
The problem that emerges in defining the parent and child rights separately is that of demarcating the self of parent and children. The idea of according equality rights in the specific context of Article 14 of the Constitution of India to children is then relatively confounding. The concept of equality that entails differential treatment to respond to different needs must especially be looked into with regards to 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. One of the natural rights incidentals to parenthood is the right to custody of the child recognised as a common law doctrine of ‘parental autonomy’ which the Courts do not easily discard.
The natural right of the parent to the care of a child prevails against an entire 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 age, gender, mental and physical maturity and also of parents;
• Relationship and emotional ties between the parent and the child;
• Parent’s ability to provide the child-food, shelter, clothing, medical care, education; and
• Child’s established living pattern-school, home, community.
In a divorce-custodial dispute, if the interests of the child differ from the parents, neither parent nor the counsel for the parent could represent the child. the child’s interests are protected by the Court as parens patriae. The parens patriae doctrine, which developed in the seventeenth century, allowed the Chancery Court to assume child-protective functions and later to deny custody to an unfit father.
“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.
When applying the ‘best interest’ standard in contested custody proceedings, Courts must consider the question of how much weight to be given to the child’s own custodial preference.
Hindu Minority and Guardianship Act, 1956 governs the issues of custody and guardianship Hindu Minority and Guardianship Act, 1956. 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.
Not only this, but both Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 stipulate that the child’s view is regarded while making an arrangement when the child is above 12 years of age and that maintenance and education of children should be consistent with their wishes wherever possible.
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. According to the Shia School, the mother’s right to custody of the child terminates when the boy reaches the age of two and in the Hanafi School, this right is extended till the age of seven. Both the Schools agree that mother has the right to the custody of a minor girl till she attains puberty.
In addition to these classical conditions, some flexibility is also accorded in the light of Guardians and Wards Act, 1890 and the Courts are pro-active in their custodial arrangements by applying the criteria of 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 is a secular act and governs guardianship in communities other than Hindu and Muslims which clearly lays down that the father’s right is primary. Under Guardians and Wards Act, 1890 ‘guardian’ is defined which is similar to what is in the Hindu Minority and Guardianship Act, 1956.
The Divorce Act, 2000 provides law of custodial arrangements for children among Christians.In case of Parsis, Section 43 of the Parsi Marriage and Divorce Act, 1936 makes provision for the custody of children.
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.
Custody Issues and the Sex of the Child
It is now settled law that child custody can go to either parent.On the sociological front, researchers find that boys raised by fathers and girls raised by mothers may do better than children raised by the parent of the opposite sex.(http://www.infochangeindia.org/archives1.jsp?secno=4&monthname= March&year = 2006 &detail=T.) However, the children’s adjustment following a divorce has more to do with the quality of the parent-child relationship than with the gender of the child.
Maintenance for Off-springs of Divorcees
Financial problems can be catastrophic. Studies show that only half of all Court-Ordered child support is paid73 affecting the child’s daily care, schooling etc. In such a situation the Courts must ensure fall back mechanisms like asking for the extended family members to act as surety etc.
Maintenance under the Hindu law is provided in the Hindu Adoptions and Maintenance Act, 1956 wherein under Section 20, it is obligatory upon the parents to maintain their minor children. In case of Mohammedan law, the maintenance for the children of divorcees is basically to be taken care of by the father regardless of the custodial arrangement. It is stipulated in the Muslim Women (Protection of Rights on Divorce) Act, 1986 in Section 3(b).
Under the Divorce Act, 2000 applicable to Christians, Section 43 deals with Courts’ power to make provisions for the minor child’s maintenance. Usually, the Courts grant maintenance for children while deciding the issue of maintenance to wives in divorce cases.
The Children Act, 1989 in England addresses the core issue of the rights of a child in divorce proceedings. In India, there has been no comprehensive legislation dealing with rights of the child in this context. 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. This will basically maintain their trust in the parents. Interaction further depends upon the age of the child.
Secondly, the most important factor for children’s well being is to not let them be privy to the ongoing conflicts. Further, keeping in touch with the non-custodial parent and a regular communication is beneficial for the child’s growth. Minimum transitions after the divorce of the parents are beneficial for the children.
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.
Apart from the developmental considerations due to family disruption, there are certain rights which need to be looked into from a distinct standpoint to cater to special situations the children are found in during the time of their parents’ divorce.
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.
