Father’s Day: A Thought For Dads Entangled In Legal Battles Over Child Custody

Father’s Day: A Thought For Dads Entangled In Legal Battles Over Child Custody
Father’s Day: A Thought For Dads Entangled In Legal Battles Over Child Custody

Kishan Chand (35) last met his daughter when she was barely one year old. His daughter is now seven and studies in Class 2. He fought for her custody for years but lost. “The past few years have been harrowing. She [ex-wife] filed three cases against me — under the Dowry Prohibition Act, Section 125 of the Code of Criminal Procedure, 1973 (CrPC), Section 498, and provisions of the Domestic Violence Act, 2005. While fighting these false cases, I was also battling for custody of my child, which I lost because the law states that a child below the age of five is usually given to the mother. They expect men not to cry, but I have wept in court and at the police station, knowing my daughter is gone.”

He last saw his daughter in July 2023. “It was my last court hearing, and when I was leaving the premises, I saw my daughter sitting in the car. She has grown up so much, was my first thought. She was just a baby when I last saw her,” he says. Even though the court permitted him to visit his daughter, Chand claims that he was never allowed by his ex-wife’s family. “I tried to meet her a few times, but they refused. I finally gave up because they threatened to file more cases against me.”

While on Sunday, June 16, Father‘s Day will be celebrated, people like Chand will have a few memories of being with their child. “I wasn’t even invited to her first birthday. I didn’t give birth to her, but that doesn’t mean I don’t have feelings for my child or don’t want to give her a good upbringing. My child has been snatched from me. Unfortunately, she was used as a pawn to get whatever they wanted out of me. I paid ₹15 lakh in compensation and have to pay ₹15,000 every month as maintenance for a child I haven’t met in 6 years.”

Even though there are legal provisions that can give custody to the father, a prevailing narrative that exists in society is that a man cannot play the role of a mother.

Rohit Singh* (name changed on request) hasn’t been able to meet his child for two years now, since his separation case is pending in court. “This is so traumatic. Even the father should be given equal access to the child. He is my biological child and how can anyone for even a second think, that I would have any less feelings for him.”

A legal expert explains the Hindu Minority and Guardianship Act, of 1956, which comes into play during the custody battle for a child or children.

Vishal Gautam, a Delhi-NCR-based advocate, says, “This law operates according to specific sections outlined within it. Both parents have the right to custody, but the court holds the ultimate authority to decide. The Guardians and Wards Act of 1890, states that the welfare of the minor shall be the paramount consideration.”

Regarding a child’s custody, there are five types: Physical Custody, Joint Custody, Legal Custody, Sole Legal Custody, and Third-Party Custody. “According to Section 6 of the Act, custody of a child under five is usually awarded to the mother. Therefore, there is little flexibility in such scenarios for the father to get custody. In most cases, custody is granted to the mother unless it can be proven that she isn’t capable of taking care of the child. In 95% of cases, custody goes to the mother by default. It is then up to her discretion. And, in most cases, the father has to pay for the maintenance of the child and the mother, explains Gautam.

The custody of minor girls (below the age of 18) is given to the mother. In such cases, the father can obtain visitation rights, but these depend on the cooperation of the child’s mother. “They can refuse to let the child meet the father. Men, often very emotional about their children, may end up agreeing to the mother’s unreasonable demands to see their child,” he adds.

Various men’s rights organisations in India have been campaigning against the abuse of child custodial privileges. For instance, during the COVID-19 pandemic-induced lockdown, men embroiled in child custody cases found themselves unable to establish any contact with their offspring. Groups such as Save Indian Family Foundation (SIFF) had filed a public-interest petition, requesting virtual (WhatsApp, Skype) visits so a child was not completely cut off from their fathers.

There have been a few incidents demonstrating that not all is lost for fathers seeking custody of their children. In one such case, a father was allowed to retain custody of his child after appealing to the Supreme Court. This decision overturned an earlier order by the Madras High Court, which had required him to hand over custody to the child’s mother. According to a report published in SCC Times, ” Matrimonial dispute arose between the husband and wife which led the husband to file a divorce petition in 2014, while the wife filed a complaint to claim maintenance under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘DV Act’). In addition, it was prayed that the child’s interim custody be granted to the wife, which was allowed vide order dated 22-05-2014 and the husband was directed to hand over custody of the child to his wife. The husband applied for revocation of the said order handing over the child’s custody to the mother, which was dismissed. Such dismissal was challenged before the District Judge, which again got dismissed, and the revision petition before the High Court also upheld the dismissal orders. Therefore, the child’s father approached the Court [Supreme Court] through the instant appeal.”

The report by SCC Times stated that the Court highlighted the fact that from the very beginning, the child was living with his father. “It went on to express that ‘In any matrimonial dispute, it is always the child/children who bear the brunt’. For proper growth of a child, love and affection of both the parents is necessary. In any matter of custody of child, his welfare is paramount consideration.”