Paternal instinct: The legal quagmire around fatherhood In India needs to be resolved
What India needs this Fathers’ Day is to find and follow its paternal instinct.
India runs on 'maternal instinct'. Television advertisements embody the role of the mother as a hard-working, dedicated woman, a victim of the double burden, running to office and running the household — with a smile on her face always, while the father, sits on a chair, with a cup of tea in hand, and the newspaper, frequently smirking at his children or wife, always isolated from the household. Then, there are advertisements that embody the role of the father as the provider — he knows that the insurance has to be paid on time; he knows his daughter is nubile and hence, he must spend his savings on her wedding trousseau. India’s relationship with the public/private divide is stark: it places fathers in the public realm, to be the ultimate breadwinner of the family, and the mothers stay put in the private realm, managing the household and taking care of the children. Unfortunately, this perception has also seeped into to the policymakers, legislators and the judiciary, and fatherhood is not envisioned as a necessity in the Indian legal system.
Earlier this year, the Maternity Benefit Amendment Bill, 2016 was passed by both Houses of Parliament, and received the President’s assent. The amendments were favourable for women working in the organised sector who would be entitled to receive maternity benefits for 26 weeks, up from 12 weeks. The Bill would also provide maternity benefits to mothers adopting a child below the age of three months, as well as to commissioning/biological mothers who act as surrogates. However, the Bill is silent with regard to paternity leave. In fact, last year, Maneka Gandhi debunked the concept of paternity leaves in India — “Paternity leave can be considered only if, once the woman goes back to work after her 26 weeks of leave, we find that men are availing their sick leave for a month to take care of the child. Let me see how many men do that. I will be happy to give it but for a man, it will be just a holiday, he won’t do anything.”
As per a notification in the 1990s under the Central Civil Services Leave Rules, men in engaged in government service, irrespective of biological or adoptive father, can take 15 days paid leave, that they are allowed to merge with any other leave. However, this is not explicitly defined as paternity leave, which is problematic — as if the very aspect of leave to perform the duties of fatherhood is a taboo for men. Moreover, there are no rules or guidelines that require companies to mandatorily grant paternity leave.
When it comes to regulatory and legal framework of custody laws, the law does not seem very confident about the interplay of law and fatherhood. Traditionally under Common Law, the father was seen to be the absolute guardian of the child. However, a legal development — the courts claiming parens patriae jurisdiction over the child, thereby, superseding the natural guardianship.
The Supreme Court of India has persistently held that in custody cases, the best interests of the child are paramount. In Mausami Moitra Ganguli vs Jayant Ganguli (2008), the Court pointed out that “[t]he first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.” In another landmark judgment, Ms Githa Hariharan and Anr vs Reserve Bank of India (1999), the Supreme Court declared its position on custody rights by stating that gender was not primary factor in deciding cases of child custody and guardianship — “gender equality is one of the basic principles of our Constitution, and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category.” However, in 2003, the Karnataka High Court in a judgment stated that — “it is the most natural thing for any child to grow up in the company of one’s mother’ and ‘a child gets the best protection and education only through the mother even in nature.” The socialisation that mothers are nurturing caregivers, and fathers are not, is a message that the judiciary began to send out.
Almost a decade later, Karnataka High Court, in KM Vinaya v B Srinivas (2013), stated that both parents would have a ‘shared custody’ of the child for the “sustainable growth”. The child would live with the father for six months of the year, and then with the mother, and all expenditures of the child would be split equally. It was one of the few cases that upheld the principle of equal and shared parental responsibility.
Adoption laws also do not favour the father. In Sawan Ram and Ors vs Kalawanti and Ors (1967), the Court stated — “If a bachelor adopts, the child will have a father and will have no mother.” In 2016, the story of Aditya Tiwari was everywhere: he is a Pune-based software engineer, who adopted Binney, a child with Down’s syndrome. For him, it was 15-month ordeal until December 2015, as he ran from pillar to post in the intricate labyrinth of Indian procedures for adoption, until it was finally permissible to bring Binney home. According to the law, single men can adopt only male children.
The Surrogacy Regulation Bill, 2016 allows only heterosexual couples to get a surrogate, and such surrogate must be a close relative, who has been married and has a child of her own. In this absurd legislative policy, neither single men nor women are considered. Bollywood director Karan Johar was perhaps one of the last single men who was able to find a commercialised surrogate for his twins, earlier this year.
The Indian legal system is ruthless on fathers. This is especially significant on the occasion of Fathers’ Day, that the legislature, executive and the judiciary — motivated by structural powers and the strains of patriarchy — institutionalise the public/private divide by drafting legislations and implementing policy that keep mothers at home (close to children, managing the household), and the fathers outside (hard-workers, breadwinners, providers). In this way, fatherhood becomes a tabooed issue for most men, and as a result, women are expected to continue to uphold the ‘double burden’.
It is imperative that all branches of the government understand that unless the legal quagmire around fatherhood is resolved, there will be very little changes in the socio-political dynamics of the family. What India needs this Fathers’ Day is to find and follow its paternal instinct.
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