Thirteen-year-old Valerie Shah (name changed) of Mumbai is an angry teenager. A year ago, when her parents divorced, she was handed over to her father, while her seven-year-old sister went to live with the mother and her boyfriend.
Every evening, Valerie’s father has several drinks and after that, instigates her against her mother. Then he drives the agitated girl to her mother’s house where she not only abuses her mother and her boyfriend but also breaks whatever she can lay her hands on. When she becomes tired, she goes off to sleep, crying. Currently, Valerie is being treated by her school counsellor.
There are many children like Valerie who are products of a broken home. And many of them are falling prey to ugly custody battles between parents who want to teach a lesson to each other. Experts say that though legislators are making divorce laws simpler, no attention is being paid to change child custody-related laws, so that the suffering of the child can be minimised.
The first problem, experts point out, is that these laws are not properly defined and there are no procedural laws relating to child custody. “Family laws should be defined and brought under one umbrella so that the least emotional trauma is caused to the child,” says Nina Nayak, former member of the National Commission for Protection of Child Rights (NCPCR).
Nayak further states that since there are various child-related laws such as the Hindu Adoption and Maintenance Act, Guardianship and Wards Act, the Commissions for Protection of Child’s Rights Act, 2005, and most important, the Juvenile Justice Act, couples are confused about which ones to invoke. “In the process they go everywhere, including the NCPCR, Child Welfare Committee and so on, and end up filing several lawsuits,” says Nayak.
“Many aggrieved parents come to us for custody on the ground that the other person is not fit to take care of the child. The laws should be more specific and well-defined,” says Minati Adhikary, chairperson, Child Welfare Committee, Calcutta.
The Hindu Adoption and Maintenance Act gives the mother the sole custody of a child if he or she is below the age of five. “The mother is usually given custody because the child depends on her to a great extent at this age. But that doesn’t mean there are no exceptions. Often we see that fathers are better nurturers and more dear to the child. It needs to be judged properly who is a better parent,” points out Dr Swagata Nandi Dasgupta, a senior counsellor attached to Vasant Vihar School, Thane, Mumbai.
“There shouldn’t be any fixed rule on this and the best interests of the child should be given priority. In fact, if no one is fit to take care of the child, the grandparents should be made the custodians,” says advocate Debashish Banerjee of Calcutta High Court.
Unfortunately, in most custody battles the best interests of the child are ignored. “The United Nation’s Convention on the Rights of the Child (CRC) states that the best interests of the child and participation of the child in the entire process should be ensured. I think it should be made mandatory that the judges discuss the matter with the child alone,” says Ruchira Goswami, assistant professor, sociology, National University of Juridical Sciences, Calcutta.
“India has ratified the CRC but the law has not been modified to fit the principle when it comes to the custody of a child. A child’s independent opinion must be taken into account by the lawmakers,” adds Banerjee.
Another problem is that often custody battles carry on for too long, rendering their very purpose useless. So custody-related cases need to be expedited. “Sometimes custody battles carry on for so long that by the time the verdict is out, the child is already an adult. In the process, the child often ends up being raised by a completely unworthy parent,” says Kallol Basu, advocate, Calcutta High Court.
Again, in the absence of an adequate number of family courts, custody cases are often referred to district courts where the environment is not at all child-friendly. “Courts are not the best places for a child. The number of family courts in each state should be increased. Also, they should have counsellors,” says Nayak.
Experts say that before giving custody of a child to a parent, the court needs to meticulously find out whether the guardian is fit to take care of the ward. “Economic solvency alone should not be the criterion. The court must determine whether a parent is mentally fit or not. There should be a psychological test done to rule out mental illnesses. This should be made mandatory,” suggests Dr Nandi Dasgupta.
“Besides counselling, the court should talk to neighbours, close relatives and even to colleagues to know the parent better before handing over the child to him or her,” adds Basu.
Both lawyers and child rights activists believe that to ensure the child goes through minimal trauma, couples need to undergo counselling. “Often, counselling may iron out many of the problems and in some cases couples may even end up deciding against a divorce. So counselling must be made mandatory,” says Jayanta Narayan Chatterjee, advocate, Calcutta High Court.
Many feel that joint custody is the best option for a child. “In cases of joint custody, the acrimony between couples reduces considerably. This is best for the child’s overall development,” points out Goswami.
But where joint custody is impossible, say experts, the courts must ensure that the visitation rights of the other parent are protected. For it is not unusual for a parent who has custody of the child to take devious means to deprive the other parent of the child’s company.
“This is detrimental to both the child and the parent. The law should be such that the parent gets to take the child with him for an entire day if he has no record of violent or criminal behaviour,” suggests Basu.
Clearly, the lawmakers have their work cut out to come up with a more just child custody law that ensures the best interests of the child.