About this sample
About this sample
Words: 2428 |
13 min read
Published: Aug 14, 2023
Words: 2428|Pages: 5|13 min read
With a population of approximately 1.324 billion people, India is the world's second most populous country, making it all the more difficult for our judicial system to handle all the petty to grave matters affecting its citizens. As a result, the ADR Act, 1996 provides alternative dispute resolution mechanisms. When the matrimonial home is on the verge of disintegration, the fate of the childchildren bears the brunt of the parents' hostility. Custody of a child is a matter that the parents must resolve mutually and peacefully, putting aside personal grievances and focusing solely on the child's welfare. This is where mediation can be critical in resolving the conflict between the child's parents without jeopardising the child's well-being. Courts in India have repeatedly endorsed mediation as a viable option for resolving child custody disputes. This paper will discuss the importance of using mediation as a redress mechanism when deciding on a child's custody. This paper will analyse various laws pertaining to child custody, the Law Commission of India Report, pertinent judgments of Indian courts, and similar laws in various other countries, thereby elucidating the relevance and significance of mediation in child custody cases.
Maintaining the sanctity of human relationships and protecting them from the consequences of spurts and disputes is a critical role of mediation in today's dispute resolution system. Mediation aims to resolve conflicts by transitioning from an adversarial dispute resolution system to one based on mutual understanding, cooperation, and peaceful coexistence. The process of arriving at a solution is less vindictive because the parties' ultimate goal becomes 'solution' rather than 'vengeance.' Unlike a court, which is constrained by impeding work and is bound by procedural rules and statutory requirements, a mediator has the entire time allotted for the parties to mediate and is not bound by mandates to follow strict procedural rules in reaching a decision. The process is amicable, with each party receiving an opportunity to express their viewpoints and contentions in a friendly environment. The process's ultimate goal is peaceful coexistence with a futuristic vision. In ancient India, the family was regarded as sacred, all the more so because marriages were perpetual, and divorce or separation were unheard of. With time, society became aware of marriage breakdowns, and various personal laws eventually recognised the concept of divorce.
With divorce, the issue of child custody arises. Child is an innocent party to the conflict who, if not protected, bears the brunt of the parents' hostility. Custody of the child does not simply mean physical custody; it also includes a variety of ancillary responsibilities such as schooling, sports, religion, holidays, and lifestyle choices that must be made in the child's best interest. Custody of a child is a matter that the parents must resolve mutually and peacefully, putting aside personal grievances and focusing solely on the child's welfare. This is where mediation can be critical in resolving the conflict between the child's parents without jeopardising the child's well-being. Child custody mediation is a collaborative process with the ultimate goal of achieving what is best for the child. It is a process in which both parents can be actively involved and accountable for the child's welfare. When family disputes are resolved through mediation, the child is guaranteed a normal lifestyle regardless of the breakdown of his or her family. The Supreme Court has repeatedly held that whenever the custody or care of a minor is in dispute, the minor's welfare must take precedence. The child's welfare cannot be quantified solely in terms of physical amenities or financial resources; moral and mental well-being must also be considered. Unlike other family law issues, which do not require consideration of the future, child custody disputes require a futuristic perspective. It must be ensured that the child's future and life are safe, secure, and normal, and are not adversely affected by the marriage's breakdown. However, there is no one-size-fits-all definition of 'child welfare'; it is highly contextual and highly dependent on the facts of each individual case. Active cooperation and coordination between both parents is critical, which is difficult to accomplish in an adversarial courtroom environment. The combative parents need to sit down and put their differences aside in order to prioritise their child's ultimate welfare. It is not the father's or mother's superior right to custody of the child that matters in child custody cases. Mediation is the most effective method for facilitating such a practise. The Supreme Court held in K. Srinivas Rao v. D.A. Deepa that matrimonial disputes, particularly those involving child custody, “are ppre-eminently fit for mediation.” The Law Commission of India's Report on Reforms to India's Guardianship and Custody Laws discusses the importance of mediation in child custody cases as well. Why mediation is the preferred mechanism and how effective it is will be discussed in greater detail later in this discussion.
Family laws are primarily personal laws, and thus child custody is governed by a variety of personal laws. The discussion that follows highlights the provisions of various personal laws relating to child custody and the position taken by Indian courts on the subject.
In ancient India, the karta of the Hindu Undivided Family was regarded as the ultimate guardian, and any personal dispute between the child's parents had little effect on the child's welfare, as the child would continue to be cared for and protected by the family's karta. However, under modern Hindu law, Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the natural guardian of the child is the father, followed by the mother. Additionally, it is stated that the mother will typically have custody of a minor under the age of five. The Supreme Court held in Gita Hariharan v. Reserve Bank of India that the phrase “after him” as used in Section 6(a) of the Act should be interpreted as “in the absence of the father” and not as ‘after the father's lifetime.” The term “absence” could also refer to the father's indifference to the child's welfare or his inability to care for the child due to an illness, etc. Additionally, Section 13 of the Act states that the child's welfare has been held to be of 'primary importance' in determining the child's guardianship. Section 26 of the Hindu Marriage Act, 1955, also contains provisions governing child custody. It is stated that in any proceeding brought under this Act, the Court may periodically enter such interim orders as it deems just and proper regarding the child's custody, education, and maintenance, and may also include such provisions in the decree and later on an application brought by one of the petitioners.
While the father is the natural guardian, the mother retains custody of the child until the son reaches the age of seven and the daughter reaches puberty. Additionally, the mother’s right of hizanat is recognised, which states that the mother is the most appropriate custodian of her children both during and after the marriage's dissolution. This right is enforceable not only against the father, but also against third parties, provided the mother is not disqualified for misconduct or any other reason.
Under Section 49 of the Parsi Marriage and Divorce Act, 1936, and Section 41 of the Indian Divorce Act, 1869, courts are authorised to issue interim orders for the custody, education, and maintenance of minor children in any proceeding brought under these Acts.
The Guardians and Wards Act, 1890 is a secular statute that governs all children in India, regardless of religion or personal beliefs. Section 19 provides that a court is not authorised to appoint a guardian for a minor whose father or mother is still alive and who is otherwise fit to serve as a guardian.
Child custody is not a one-time occurrence; rather, the child's entire life revolves around this decision. Custody of the child does not simply mean physical custody; it also entails a variety of ancillary responsibilities such as schooling, sports, religion, holidays, and lifestyle choices that must be made with the child's welfare in mind. While the welfare principle has been applied by the courts in almost all cases involving child custody, its contents have not been specified in any decision. Archana Parashar states in her article “Welfare of the Child in Family Law” that because there are no legal requirements for determining the child's welfare, courts apply their own interpretation of the principle based on their own conceptions of “ideal parenthood.” The broad discretion granted to courts in deciding custody matters carries the risk of being misapplied and the true best interests of the child not always being protected, particularly when the court environment is adversarial and the matter is more about custody battles than it is about the child's welfare. Despite the aforementioned difficulties and criticisms, it cannot be denied that the courts have always attempted to protect the child's best interests and welfare in matters involving child custody. The principle of the welfare of the child also incorporates the principle of joint custody. A child is entitled to both parents' love for the purpose of proper upbringing and happiness. As a result, mediating toward joint custody of the child has become increasingly popular over time. Flexible visitation rights and active involvement of both parents in critical decisions affecting the child's education, health, and environment can play a critical role in positively moulding the child's life who would otherwise be torn apart by his or her parents' divorce process. However, joint custody of a child is generally avoided in cases of domestic violence or when the parents live in different locations. Joint custody is deemed appropriate when it is compatible with the facts of the case and will accommodate the child's current lifestyle. This brings us to the importance of mediation, which resonates throughout the concept of child welfare, which can be determined mutually and accurately only in a peaceful environment facilitated by the mediation process.
Divorce affects the child in both the short and long term. It is critical to minimise the negative impact of the divorce on the child. A divorce does not have to be a bad one. A successful divorce is very much possible if the parents divorce amicably and take an active role in determining their child's welfare. A successful divorce leaves both the child and the parents emotionally disturbed, but not worse than they were prior to the divorce. To emphasise the importance of mediation, Gauvreau outlines the following benefits of mediation in child custody disputes:
Mediation can be more child-centered and inclusive of children. Mediation enables the couple to enlist the assistance and facilitation of a professional neutral person who assists and facilitates the couple in resolving their mutual disagreements and achieving a positive outcome for the child. Mediation results in more positive relationships following divorce, including financial settlements for the cost of child rearing. It assists parents in refocusing their attention on the child and his or her well-being. From a psychological standpoint, mediation helps make divorce proceedings and their impact on the children less invasive and potentially therapeutic. A court adjudicating a matrimonial dispute should refer a child custody dispute to mediation; however, the decision to refer should be based on several factors, including the child's vulnerability, his or her ability to participate in the mediation proceedings, the nature and type of allegations made against a party (for example, mediation should not be facilitated in cases of alleged child abuse), and the family dynamics.
One of the main aims of child custody mediation is coming up with a parenting plan. The Report No. 257 of the Law Commission of India discusses the factors to be delved upon when drawing up a parental plan, namely:
Upholding the significance of mediation in matters pertaining to child custody the 257th Law Commission Report recommends the insertion of Section 19F to the Guardians and Wards Act, 1890, pertaining to mediation in matters of custody of the child. The Report states that mediation will facilitate better outcomes for both parents and children and at the same time help in easing the pressure on the over-burdened Indian Courts. The Report recommends that the parties to child custody matters must first try mediation before the beginning of the court proceedings or on being so directed through orders of the Court. It is further recommended that the parties should have the opportunity to participate in mediation with the aid of a trained mediator, who has appropriate expertise and training in family disputes. To facilitate the same, lists of court-annexed mediation centres and individual mediators should be maintained by High Courts, District Courts and Family Courts. Assistance of professionals needs to be taken to get a better understanding of the psychology of the child. The Report suggests the need to mandate the mediation process for child custody matters to be time bound and should conclude within 60 days of being so ordered and initiated.
In light of the preceding discussion, it is necessary to note that global consensus exists regarding the importance of mediation as a process for determining the custody and welfare of a child whose parents are on the verge of a marital breakdown. Apart from reiterating the importance of mediation, the 257th Law Commission Report establishes various checks and mandates that can assist in averting any form of miscarriage of justice. Thus, mediation transforms the issue of child custody from an adversarial to a cooperative one, with the child as the ultimate beneficiary.
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