Supreme Court’s take on child’s right to affection of both parents

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In India, Family law is considered to be one of the most evolving set of legal rules. There have been several amendments and judgments that keep giving new perspectives that change the way these rules are being applied. Several key issues are addressed promptly and the courts have played a tremendous role in shaping the current family laws.

Recently in another ground breaking order of the Supreme court by Hon’ble Justice Deepak Gupta, it was held that the child is entitled to equal affection of both the parents. This order was made subject to an appeal made by a father for custody of the child who is with the wife.

The court gave strict directions to amend the visitation rights of the child in a manner that he gets proper love and affection of the father. Keeping in mind rights of the child and the effect that separation of parents might have on a child, the father was granted the right to visit the child overnight and proper visitations during holidays were also allowed.

The divorce law in India:

Divorce has become a common practice over the years, and ever since an increase in the rate of divorces, various issues related to it have to be kept in mind. There are various grounds of divorce mentioned in different acts that regulate different groups of citizens. After the divorce of a couple, various aspects have to be regulated legally to avoid any kind of dispute.

The harshest effects of divorce are on the child, if there is any. Divorce laws in India very clearly lays down the rules with regard to ending the institution of marriage but not many laws exist to secure the rights of a child. The court works in order to give decision that secures the child’s rights and welfare after the divorce. In addition, there have been numerous instances where the courts have gone out of its way to ensure that the child’s rights are protected.

What is the goal of custodial proceedings?

The basis of any proceedings conducted in Family Court with regard to custody of the child is to protect the child’s rights. The parents in such cases can have multiple contentions, but the courts have to go to any extent to protect the interests of the child. Custodial proceedings are done under:

  • Section 26 of Hindu Marriage Act, 1955
  • Section 38 of Special Marriage Act, 1954
  • Various provisions of Hindu Minority and Guardianship Act, 1956

Factors that constitute a child’s welfare:

  • An ethical upbringing of the child in a sound environment
  • Proper safety and security of the child should be ensured
  • Educational facilities should be adequate and no compromises to be made in this regard
  • The guardian should be economically stable in order to bear the child’s expenses

Understanding the recent judgment

In the aforesaid case, there are several legal contentions that rule out the father’s role with regard to child’s custody. However, even if the father is not suitable for custody of the child, that does not mean the child is not subject to father’s love in his life.

Even though the laws did not have any such guidelines and lacked any provisions favouring the father, the court made sure that the child’s right to a father’s affection is not hampered, considering it essential for healthy growth of a child. In order to understand this perspective, we need to understand the concept of joint custody.

Joint custody:

In a joint custody, there is a time-to-time rotation of the child between both the parents. In such cases, the court decides as to the habitation and visitation rights of the parents. Although in such cases, the child’s interest is the key priority and the court keeps it superior to the contentions of the parents.

Over the past years, the meaning of joint custody has become very vague. Since the child is living with only one of the parents, the visiting parent eventually faces various issues with regard to having a proper connection with the child. This practice flouts the very goal of joint custody, which is to make sure that the child receives equal affection of both the parents.

Justice Deepak Gupta delivered this ground breaking order and provided overnight visitation rights to the father. His contention was clearly to make sure that the child feels close to his father and does not lack his guidance in life. The clear basis of this right was that the child was himself willing to stay in constant touch with this father.

A way forward:

The landmark judgments that have been given over the past five years clearly indicate an increase in judicial understanding. In the present case, if one looks at the practical application of joint custody there has not been any mishap.

However, in reality the concept has been exploited in several cases where the parent with certain visitation rights has faced lack of approach to the child. The child due to no fault of his own, faces the absence of affection in his life. Also, lack of understanding between the parents simply lead to a harsh upbringing of the child.

With this recent Supreme Court order, the court has once again showed that the judiciary shall go beyond the written laws to assure justice to every citizen. The child was made the utmost priority and based on his choices the visitation rights of the father were extended.

This decision proves that the judiciary has once again stood tall in the way of misuse of the legal rules and rights of the citizens. Moreover, in a progressive society we seek a marital institution that has mutual respect with proper care of the child. Thus, such precedents can help in giving the right direction to the people of the country.

-This article is brought to you in collaboration with Anshu Sharma from V.I.P.S., Guru Gobind Singh Indraprastha University, Delhi.


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