“I don’t have children that I’ve lost in a bitter custody dispute. But I see an enormous wound in kids due to a lack of their dads.”

HISTORY OF CHILD CUSTODY

One of the earliest references to this matter dates as far back as the ancient Roman civilization where a child had been taken as the property of the father who had enjoyed the sole authority to control or sell them while the mother shared no rights with the child even after the father’s death. In a similar vein, the 18th-century English Common Law had indisputably awarded ‘ownership’ of the child to the father, which had not only included the unilateral power to make the legal and educational choices for the child but also an entitlement to its earnings, as an excuse for possessive dominance just by the virtue of finance generation. This prerogative had been extrapolated itself throughout the west, including colonial America where sparks of rebellion had first been discovered, kindling in the form of pioneer feminist revolutions in the 1800s, eventually leading to the Seneca Falls Women’s Rights Convention, 1848, popularly hailed as the first distinct step towards changing the mainstream of patriarchal hegemony.

Women had not looked back from that point onwards, and with the gradual awareness of their identity and rights, they had elevated themselves to the roles of ‘domestic caregivers’ and ‘managers of household affairs.’ By the 20th century, this progressing transition had precipitated the new norm, as had been evident from the ‘tender years’ doctrine of the English law which, with a complete change of heart, had now declared the mother as the natural owner of the child. Indeed, women had come a long way for political and legal justice, ironically to the present point sharing the need for another rectification. In the above provisions, the law axiomatically presumes the mother to be the natural caretaker of a child below the age of 5, and the Muslim law, as per the Right of Hazanat, extends this right to a boy till the age of 7 and a girl till she reaches her puberty. This is a reiteration of the later societal narrative where the father is now the incompetent one in the parenting of the child. This belief had derived itself from scientific as well as sociological factors. Empirical research evidence upholds the relationship of the child with its mother, right from its foetal stage where an unborn baby forms the bond, then after its birth, the innate dependence on its mother for food and care, to lifelong psychological dependency for softer support. After all, a child spends more time with its mother who stays at home to look after it than the father who goes outside to work and brings bread to the table. For generations, child-rearing had always been a mother’s exclusive job; it had never been expected of a man to learn the art of parenting, and now, he is deemed to be incapable of it.

PROVISIONS OF CUSTODY TO THE FATHER

However, established notions may not hold to be true for all cases and exceptions do exist. Recently, in October 2021, the Delhi High Court had, in a rare but noteworthy stance, granted the interim custody of two infants, a 4.5-year-old and an 18-month-old, to their father in the view that the mother had unethically ignored the wellbeing of her children for her personal relationship.The rationale behind such a verdict had been that the mother shall be entitled to her personal decisions but any adverse impact on the children cannot be overlooked.

Previously, in Sanju v Shobhanath, 1994[14], the Allahabad High Court had granted the custody to the father because he could financially support the children better than their mother. On a similar note, the judgement of Shaleen Kabra v Shiwani Kabra, 2012[15] had allowed the custody to the father adhering to the child’s desire to stay with him.

CONCLUSION

The presence of both parents is essential in the life of a child, especially in the sensitive years of its childhood. Hence, the Court, taking cognizance of this fact, tries to facilitate a compromise between the two parties and allows both of them the access to contribute to the upbringing. Despite the apparent flaws in the social fabric of our country, the legal authorities still ensure that impartial and just decisions are adhering to the best interests of the child. Indeed, it cannot be refuted that there had once been gender bias, not just in India but in other countries as well, but things are changing and no preferential right shall be prioritized over justice. If a father proves himself to be a better candidate, worthier for the custody than the mother, he should get it. In Saraswatibai Shripad Ved v Shripad Vasanji Ved, 1941[16], the High Court of Bombay had stated that it is not the welfare of the mother or the father but that of the minor and the minor alone which is taken into paramount consideration. This was again emphasized by the judgement of Sheoli Hati v Somnath Das, 2019[17] where the Court of law had held that it considers the “welfare of a child”, above all the legal parameters, to be the prime criteria for determining its custody. It is unfortunate that people may have to compromise the juvenescence of their child because of their personal inabilities and conflicts. The presence of a wholesome family is an indispensable element of human childhood, but in the unlucky cases of its absence, the serious responsibility of parenthood shall nevertheless be undertaken with utmost sincerity and accountability. The idea of family breakdown and separation is already a traumatic and exhausting experience for the child. Hence, the main goal of the parents and the Court should be to ease their guiltless suffering as much as possible and ensure that they provide the child with a good and happy life.