Bombay HC's ruling on child's rights in custody battle underscores need for equality in family laws

The Bombay High Court in June delivered a judgment that honoured the 'best interests of the child' doctrine. The court ruled that a child cannot be forced to meet his father against his wishes, rejecting a Mumbai doctor's plea to meet his son. The teenager, currently, is studying in the ninth standard and living with his mother and step-father, a naval officer, posted in the Andaman and Nicobar Islands.

The 'best interests of the child' doctrine is a child rights principle derived from Article 3 of the United Nations Convention on the Rights of the Child, which states that "in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." The doctrine encourages the evaluation and balancing of all elements needed to make a decision in a specific situation for a specific child or group of children.

File image of Bombay High Court. IBNlive

File image of Bombay High Court. IBNlive

The division bench comprising Justices Rajendra Savant and Sadhana Jadhav was considerate and understanding to the teenager's wishes while delivering the judgment. "Though it is most unfortunate that things have come to such a pass, the fact remains that the child cannot be forced to meet his biological father when he does not desire to do so."

The judges also directed to the mother to communicate to the father every change of address, as well as about the progress and well-being of the child, with regard to his education. This was done as the well-being of the child would still be of concern to the father. The court declared that this direction was made in the best interest and welfare of the child.

The teenager's parents divorced in 2015, and the court had granted the custody of the child to the mother. The mother also subsequently married again. The father's plea was pending before the high court, and as an interim measure, the court had granted permission to the father to speak to his son on the phone, WhatsApp and Skype.

This January, however, the Bombay High Court was told that the teenager no longer wanted to speak with his father. A meeting of the father and son was arranged on 30 and 31 January at the Alternative Dispute Resolution (ADR) Centre in the District Court at Port Blair. But the meeting ended suddenly when the administrative officer of the ADR stated that the child was not comfortable in the presence of his father.

Following the perusal of the report of the administrative officer, the high court declined to give any relief to the father with regard to visiting his teenage son.

The judgment is progressive, considering it honours the 'best interests of the child' doctrine; however, it also remains true to the 'welfare of the child' principle, which is problematic. While the division bench states that the child should not be forced or coerced to meet his father, it also enforces a liability on the mother by way of a direction that forces her to communicate with her ex-husband because he might be concerned about the education and progress of his son.

In Common Law countries, tradition dictates that the father is the "sole guardian of the person and the property of the child". The authority of the father in all aspects of the child's life – conduct, religion, education and maintenance – is considered absolute; traditionally, mothers did not have authority over children because of their own dependent legal status, as her identity fuses with that of her husband's.

Therefore, the father was always considered to be the natural guardian of the child, and though, in several judicial decisions, the mother was allowed custody of the child, the rights of the father superseded the rights of the mother and the interests of the child.

Section 6(a) of the Hindu Minority and Guardianship Act, 1956, states that the father is the natural guardian of the child, and after the father, it is the mother who would have rights over the child. Section 6(a) provides, "(1) in case of a minor boy or unmarried minor girl, the natural guardian is the father, and after him, the mother; and (2) the custody of a minor who has not completed the age of five years shall 'ordinarily' be with the mother."

In the case of Gita Hariharan v Reserve Bank of India (1999), the Constitutional validity of this legal provision (Section 6(a)) was challenged, stating that it violated the equality of sexes under Article 14 of the Constitution. The Supreme Court stated that the word 'after' does not mean that the mother is disentitled from being the natural guardian of the child during the lifetime of the father; it means that the mother steps in "in the absence of the father".

Absence could mean "temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise". The Gita Hariharan judgment does not adequately address the problem that Section 6(a) poses – it enforces the best interests of the child but deems the guardianship of the father as stronger.

The Law Commission in 1989 brought up this matter and stated that there be an amendment to the legislation. "Thus, statutory recognition has been accorded to the objectionable proposition that the father is entitled to the custody of the minor child in preference to the mother. Apart from the fact that there is no rational basis for according an inferior position in the order of preference to the mother vis- à-vis the father, the proposition is vulnerable to challenge on several grounds. In the first place, it discloses an anti-feminine bias. It reveals age-old distrust for women and feeling of superiority for men and inferiority of women."

The Commission had suggested that Section 6(a) be amended to include "constitute both the father and the mother as being natural guardians 'jointly and severally', having equal rights in respect of a minor and his property". However, such an amendment has not been enforced yet.

The present Bombay High Court judgment is credible but full of lacunae. It calls for the best interests of the child concerned, but still indicates that the father is the natural guardian of the child, while the mother executes directives of the court, keeping the father – the natural guardian – abreast of the child's progress and education. Perhaps it is time to relook at the laws to pursue and actualise the goals of equality in family laws.


Published Date: Jul 04, 2017 11:49 am | Updated Date: Jul 04, 2017 11:49 am


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