Anti-feminine bias in child custody proceedings

Adv Moses Pinto | JANUARY 14, 2024, 12:55 AM IST

The most unfortunate loss of life is when a mother has to witness the passing away of her innocent child.

And just as the familiar legal analogy goes: “If justice is not served timely, it is as if no justice is served.”

While it is not wise to generalise every case since the facts and circumstances would invariably differ, there has to be some degree of introspection in the application of a Judicial mind when prima facie imputing ‘mens rea’ to a wife and a mother who was estranged by her husband and left to care for the welfare of a preschool child.

That instead of being permitted to redirect her energies towards reconciling matrimonial differences, child custody battles before the Courts of Law began to take precedence over her composure and motherly instinct.

It is no secret that gender neutral laws and equanimous judicial decision making in the entire country remains rippled with instances of misogynistic and feminophobic analogies being propagated in Judgments wherein the adversaries are of opposite genders.

It can even be said with a certain degree of impunity, that women judges are even expected to coincide with the male dominant narrative when applying welfare based family laws to the institution of family. Even the recommendations by the Law Commission of India in their thematic reports constantly reverberate the position of male domination when it comes to custody rights of the child.

The Law Commission of India in its One Hundred Thirty-Third Report, on 29 August, 1989 titled: ‘REMOVAL OF DISCRIMINATION AGAINST WOMEN IN MATTERS RELATING TO GUARDIANSHIP AND CUSTODY OF MINOR CHILDREN AND ELABORATION OF THE WELFARE PRINCIPLE’; the observations were as follows:

- “1.2. In the field of growth and development of “women’s rights jurisprudence” in the post-independence period, even though several legislative measures have been adopted to accord equal rights to a woman vis-a-vis a man, there are still areas where the invidious discrimination

continues to exist.”

- “According to the existing law in regard to the custody of a minor child (whether a boy or an unmarried girl), the natural guardians are first the father and thereafter the mother.”

- “The question arises whether the preference to the father as against the mother, notwithstanding the welfare principle, is justified in the light of the provisions of the Constitution which ordain the State not to discriminate against any citizen on grounds of religion, race, caste, sex, place of birth, or any one of them.”

- “The fact that a woman continues to be treated on unequal terms vis-a-vis a man or inferior to a man in regard to the matter as regards the custody of a minor provides the necessary justification for considering and recommending revision of the law on the subject.”

The Law Commission in its 133rd Report of 1989, further observed:

- “1.3. The law relating to the custody of children, the law according recognition to the ‘father’ (in preference to the ‘mother’) as a natural guardian, and provisions which in effect treat the woman as a second class citizen call for close scrutiny.”

- “Is it fair to give preference to the father as against the mother, disregarding the basic fact that it is the mother who suffers physical discomfort for nearly nine months even before the birth of the child whereas the father experiences no such discomfort, as also it is the mother who sacrifices her time, other pursuits, and comforts, in bringing up the child for a couple of years during the infancy of the child who demands constant attention and affection?”

- “Should a woman, a mother, even so be considered less suitable in the matter of custody or guardianship of the person and property of the minor child merely on account of her gender?”

- “There would appear to be no rational basis for according statutory recognition to such invidious discrimination in the law of the land. The explanation to account for this anomaly is traceable to the traditional belief that a female is an inferior being and a male is a superior being.”

- “That such a pro-male bias and an anti-female prejudice should have persisted even after the ushering in of the Constitution of India on 26th Jan., 1950, is somewhat unfortunate because the constitutional command etched in article 15(1) frowns upon such gender-based discrimination:”

Subsequently as per the LAW COMMISSION OF INDIA Report No.257 entitled:

Reforms in Guardianship and Custody Laws in India, published in May 2015: The “Indeterminacy of the Welfare standard” represents an important facet of judicial decision making in child custody matters:

“2.3.9 While the welfare principle is used extensively by appellate courts dealing with custody issues, there is no evidence of the extent of its use by the lower courts.” “2.3.10 The problem with respect to the welfare principle is that, despite its extensive invocation, the appellate judicial decisions do not illuminate the legal content of this principle. Family Law scholars note that while there are illustrations galore, no principled basis can be found in the manner in which courts use the welfare of the child standard.”

“2.3.11 The wide discretion available to judges under the welfare principle also means that certain issues that should merit consideration are not treated seriously while determining custody.”

Asha Bajpai in her article titled: Custody and Guardianship of Children in India published in the FAMILY LAW QUARTERLY (2005) has remarked:

“The best interest of the child may have been considered by the courts, but there was no mention of this standard in the orders. The courts did not give any information regarding the factors that they considered or their reasons for awarding custody. The orders just mentioned to whom custody was awarded in a particular case.”

Resultantly, the legal minds need to reflect upon the propensity as to whether the inception of frustration brought about by the archaic and exorbitantly regressive legal system may have motivated the primal instincts in Suchana to effect drastic measures upon her own begotten offspring. No guarantees exist that the gender-bias in child custody matters could be sufficiently weeded out before creating others like Suchana - manifesting a very grim reality of the misogynistic sub-culture.    

The writer is a Doctoral Researcher working under the Alliance of European Universities and has presented his research works at various Academic Conferences

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