THE EMOTIONAL TURMOIL OF CHILDREN IN MATTERS OF DIVORCE - WITH SPECIAL REGARDS TO MEDIATION
By- Sakshi Kathuria, 2nd Year, Student at School of Law, Narsee Monjee Institute of Management Studies, Bengaluru and Dhriti Bole, 2nd Year, Student at School of Law, Narsee Monjee Institute of Management Studies, Bengaluru
Child custody alludes to the legitimate connection between parents, and their child. Custody entitles the parent the right to raise, care for, and settle on choices concerning the child. The issue of 'Child Custody' manifests during divorce procedures or judicial separation; it turns into a significant problem to be decided upon by the courts. It alludes towards controlling, mindful, and upkeep of the child under 18 years old by the custodial parent under set boundaries, such as monetary security, understanding with the child, way of life, and so forth. In India, at present, the custody of children is determined by one secular law and various other religious laws - the Guardians and Wards Act, 1890, and the Hindu Law.
Guardianship implies abundant rights and powers that an adult has concerning the individual and the property of a minor, while custody is a smaller idea regarding the upkeep, and everyday care, and control of the minor. The term "custody" is not elucidated in any Indian statutes.
TYPES OF CHILD CUSTODY
Physical Custody: Physical custody signifies to the right of one parent to reside and take care of the child.
Sole Custody: Sole custody is a child custody arrangement, whereby one parent has the legal and physical custody of a child, while the other parent has only visitation rights.
Joint Custody: In the case of joint custody, both the parents get the physical custody of the child in periodic intervals. Thus, both the parents, have equal rights to the child, and they also share equal parenting time.
Legal Custody: Legal custody differs from physical custody in the sense that one parent is given the right to take important decisions of the child, such as education, medical facilities, etc. However, both the parents can be given the legal custody of the child.
Interim Custody / Temporary Custody: The court by the virtue of section 12 of the Guardians and Wards Act, 1890, can pass orders for temporary custody and protection of the person or property of the minor. The paramount condition of deciding on child custody cases is the welfare of the child and the same holds true in the temporary custody or interim custody cases the section 12 of the aforesaid act empowers the court to pronounce any orders as it may deem fit.
The introduction of Section 89 (1) of The Code of Civil Procedure, 1908, conferred the Indian Judicial system the framework to use several alternative modes of dispute resolution, amongst it is mediation.
S.89(1) states that “Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of the settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for
judicial settlement including settlement through Lok Adalat;
The laws, because of being poorly drafted raised many questions on its constitutional validity but in Salem Advocate Bar Association v. Union of India, the Supreme Court held that S.89 was constitutionally valid and established a committee which was mainly involved in drafting rules on mediation. Later, on 9th April 2005, the CJI R. C. Lahoti J. initiated the establishment of the Mediation and Conciliation Project Committee (MCPC) for the cordial resolution of the disputes pending in the matter of section 89 of the aforenamed act.
The mediator simplifies negotiations and communications between the parties and untangles their underlying interests while helping them reach a zone of viable agreement.
An essential feature of mediation is, it is confidential, which implies any particulars of the mediation process can not be used in the judicial or quasi-judicial forums, they also cannot unravel any information, documentation, proposals, and anything conferred with the mediator or the other side. Mediation is emphasized upon, to these disputes because the parents can minutely orchestrate their child’s life post-separation.
MEDIATION IN CHILD CUSTODY
Section 9 of the Family Court Act, 1984, makes it obligatory for the parties to first resolve their marital dispute through mediation. In the case of K. Srinivas Rao vs. D.A. Deepa, the apex court held that mediation is the sine qua non before filing for divorce. It was reasoned that:
The marital dispute matters are sometimes trivial and can be resolved through mediation. The court based its reasoning on the fact that it has earlier referred various cases to mediation and about 10 to 15% of the marital disputes got settled by this form of dispute resolution. They, therefore, made it mandatory for the Family Courts or the courts of the first instance to refer such disputes to mediation at their preliminary stages, particularly those relating to child custody, maintenance, etc. Section 9 of the Family Court Act urges the courts to try to settle these disputes and, in their efforts, they are assisted by the counselors and mediators who are specifically trained to settle such disputes.
Mediated agreements are valuable to children as it reduces clashes and creates an understanding explicitly favoring a child’s needs. It circumvents resentment between the parents as both would be heard and will form a common ground.
THE PREDICAMENT OF CHILD DURING CUSTODY BATTLES
Parental child abduction: Indian courts have shown noteworthy irregularity in upholding foreign court orders in childcare matters. The purpose of this is India comes up short on an enactment to direct parental child expulsion. The Government tried to fill this legitimate space by impractically presenting the Protection of Children (Inter-country Removal and Retention) Bill, 2016 that has lapsed. Parental child abduction alludes to the child kidnapping by a parent from other parent's consideration. Parental child abduction happens during the course or after separation procedures. A parent expels or holds the child from the other trying to increase a bit of leeway in expected or pending child custody procedures, or because that parent fears losing the child in those uncertain child authority procedures. An individual submits to child kidnapping when they purposefully disregard any terms of a legitimate court request giving sole or joint care to another, hiding or keeping the child or expelling the child from the ward of court. Children may feel compelled to choose sides or may hear one parent speaking disparagingly about the other parent, creating turmoil and dread.
Emotional stress: In India, the marriage is not merely between two individuals, it’s between two families, and the most noticeably awful influenced casualties of separation are presumably the children. The ruinous circumstance for a child is observing the separation of their parents. Witnessing the conflicts and unrest between the parents is an appalling condition for the child. The child, when asked for choosing among his parents, he often ends up feeling guilty and confused. Eventually, children sometimes endure agony while being in the middle of a loyalty contest a.k.a. Parental Alienation Syndrome (PAS). This syndrome was first recognized in India in Vivek Singh vs. Romani Singh. Parental Alienation Syndrome is generally characterized by a sense of hatred, guilt, and antagonism towards the alienated parent.
Now it is the need of the hour that a more child-focused approach to child custody determination is required. The concept of the child custody system is changing all around the globe. To ascertain the custody, the well-being of the child is of supreme regard. In foreign countries the notion of a shared parenting system is ubiquitous. In this concept both the parents will participate in the upbringing of the child and the child will be nourished and raised with the love and care of both the parents and will not have to suffer the emotional mayhem. There is no straitjacket formula that can be applied universally to all cases of custody, India needs a new law in this regard. The 257th Law Commission of Report appraised the issue of adopting a shared parenting system in India. There is too much left to the discretion and wisdom of the court to determine the best interest of the child in each case relating to custody of the child. Accordingly, the Law Commission of India rightly observed that joint custody must be provided as an option that a decision-maker can award if the decision-maker is convinced that it shall further the welfare of the child along with the proposed amendment.
(2017) 3 SCC 231
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)