There is strong need of provisions for implementation of family law in order to adhere the principle of “Best Interest of Child”. This is a major reason of conflict between the practice of family law and Child Rights in India.
Indian Constitution has given fundamental rights to children to be protected from harm, which also ensure their participation and rights to be heard. These rights basically to ensure, how our nation will be when your children will become young and they start contributing for nation.
The Constitution of India is the framework which essentially underlines the fundamental rights and duty of citizens, without any differentiating age, sex, race. One of the Fundamental rights in India is to ensure human rights for children, their participation and protection from harm.
“that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Article 39(f) of The Constitution of India“
Future of nation is our children, one day they will become adult and their participation in Nation will depending upon their upbringing and their childhood experiences. So this become important for any Nation, that they ensure upbringing of children in a healthy and family atmosphere, where they can get love, affection and become social. It also becomes an important aspect that their upbringing should be ensured in the society and culture where they are born.
To ensure the healthy upbringing and overall wellbeing of the children The United Nations adopted Rights of the Child (CRC) in 20 November, 1989. India become signatory of UNCRC in December 1992. In 2000, India made necessary changes to the Juvenile Justice Act (JJ Act) and finally incorporated the UNCRC to the maximum extent in the year 2015.
Countries like India, New Zealand, Scotland, USA, Costa Rica, England, Nigeria and few other countries where children have provisions to receive information by directly to court or by their representatives or by the court staff.
Now coming back to the family law in India such as “Guardians and Wards Act, 1890” (GWA), “Hindu Minority and Guardianship Act, 1956″, ” Hindu Marriage Act, 1955″, “Special Marriage Act, 1954″, Special Marriage Act 1954”, “Parsi Marriage and Divorce Act, 1936”. GWA acts related to custody were effective before the “Constitution of India” came in effect 26 January, 1950 while some acts came in effect after the CoI.
Brief about the Custody Law and Family Acts in perspective of their participation and their Rights:
According to The constitution of India (CoI) guarantees voting rights of a person who has completed age of eighteen years, and in Juvenile Justice Act (JJ Act) which essentially defines the Child “as a person not completed the age of 18 years”. So the guardianship and custody laws are basically governed by this principle of CoI and JJ Act.
“Guardians and Wards Act 1890” – It is as per the name of act, it defines “the rights and remedies for guardians and wards”
“Hindu Minority and Guardianship Act 1956” and “Muslim law of custody and guardianship” – which act son the principle of “welfare of the minor shall be the paramount consideration”. In “Akbal Ahamd vs Jamila Khatoon And Another” matter Allahabad High Court said the term “HIZANAT” as custody.
“Under Muslim law, it is called HIZANAT. Although mother is not the natural guardian of the child but she is entitled (1) in Hanafi law to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty and (2) According to Shiah Ithna Ashari Law, the mother has the right to the custody of a male child until he attain the age of two years and of a female child until she attains the age of seven years. In Shiah Ithna Ashari law after the child attains the age, as stated above, the father has the right to the custody of the child. In the absence of either the father or the mother, the other parent has the right to the custody of a minor child, whatever its sex and age. Hence the maternal grandmother cannot, if the parties are governed by Shiah law, claim the custody of a female child 3 ½ years old, during the life-time of the father. Akbal Ahamd vs Jamila Khatoon And Another”
“Personal laws of Hindus, Parsis and Christians “ – the act is related to custody, education and maintenance.
“The Hindu Marriage Act 1955” and “Special Marriage Act 1954” and the “Parsi Marriage and Divorce Act 1936” also deals with custody. These acts prefer the wish of children, but even after no such provision under the Parsi Act, the the court per their practice gives priority of the wish of the child. Important to note that court prefer the which of child only if they can express and this all depends of court to decide.
How Trials dealt in Family Courts
The trials in custody matter generally led by Family Courts which functioning under “Family Courts Act, 1984”. Family courts has provisions to allow parents to represent their matter without the advocate, and also that they try to settle disputes with the expert family counsellors. The Provisions also facilitates for speedy trial and speedy dispute resolution.
Child Friendly Room in Courts
Some courts in India has provisions of “Child Access Room” as well as the “Child Guidance Clinics”. “Child Access Room” is basically child friendly room, which generally used to allow stay of child during their court visit and also to meet with the non-custodian parent, generally the father. While “Child Guidance Clinics” have been established to deal with psychological issues, where children are counselled by experts to overcome the trauma that occurs during a custody dispute.
Still there many courts not fully equipped with the “Child Access Room” and “Child Guidance Clinics”. The another issue has been observed that crowd at “Child Access Room” annoyed children and this diluting the purpose of visiting parent. Children need private time to maintain or form a close bond with the non-custodial parent, but due to the crowd at the room, it vanishes the purpose.
The General Practice at Family Court and the Conflict
- The family is represented by advocates, both parties have their own lawyer;
- Children are represented by their parent’s Advocates;
- Children rooms to make the court a comfortable place for children, but because of the crowd in the children’s access room, it does not serve the purpose;
- When this is about children, the priority should be given to building bonds with both the parents, but court gives priority to resolve the dispute;
- The Participation of both parents in child upbringing not taken seriously, though “welfare of the minor shall be the paramount consideration”;
- It takes a long time to allow visitation rights and to allow spending good time with non-custodial parent;
- No action on the parent, if the custodial parent make lies to deny parenting rights for non-custodial parent;
- No Action on the parent, who emotionally torture the child by telling lie or poisoning the mind of child;
- There is no common law for parenting the child during separation;
- Shared Parenting is still a myth in family courts, family court treat fathers as fund manager who is responsible for all the expenditures of the child;
- if a child failed to build bond with non-custodial parents, it should be court responsibility to ensure, because this may harm the personhood of the child;
