Best Interest Of Child In Divorce Cases
Author: LawSphereX
Category: Family & Personal Law
Published:
Updated:
BEST INTEREST OF CHILD IN DIVORCE CASES
Akhila Balachandran & Susan Zacharia, LLM, Al Azhar Law College, Thodupuzha, Kerala
ABSTRACT
In India, the legislation pertaining to custody is closely linked to guardianship. However, its scope is more limited than that of Guardianship. In cases where parents’ divorce and go to court, custody of the child is a crucial aspect of a married partnership. It is given expressly to a parent who requests such custody as a matrimonial remedy. The father of the child and the moth are not the ones who suffer the most when marriages fail. The youngster is always at fault. The welfare of the kid is therefore the most important factor that the courts take into account when addressing the custody problem. In India, there is no law that expressly addresses joint custody or shared parenting, even if there are regulations that protect the child's welfare in these situations.
Many nations have laws allowing for shared parenting, and there has been a lot of desire for laws to be changed in India to incorporate this concept. Given that shared parenting is not covered by Indian law, the only way shared parenting is permitted in India is through court rulings. Therefore, while discussing the idea of custody following parental separation and divorce, this article mostly draws from court rulings.
BEST INTEREST OF CHILD IN DIVORCE CASES
Rohiton Nariman JJ and R. M. Lodha stated that the children are not shuttlecock that are being tossed between parents. The institution of marriage gives a man and woman's cohabitation, childbearing, social legitimacy and legal foundation. It is ordained to promote happiness and regular human life. When a couple first gets married, everything seems ideal, and neither of them wants to believe that their union may end. However, a marriage begins with optimism and contentment. However, due to human nature, marriages do not always work out. Each person has a unique perspective and way of seeing the world, and when their viewpoints diverge, tensions eventually develop between them. The couple's distance from one another begins to widen as a result of this disagreement, and they often think that divorce is a smart way to deal with the issue they are unable to resolve.
However, it turns out that divorce is a long-term solution to a short-term issue that leaves them without hope, relief, or romantic success. They are in the point of no return quagmire and wish to cut off their relationship. They imagine that everything will be alright after the divorce and view it as a ray of hope. Consequently, the dissolution of marriage has become a significant phenomenon in the 21st century due to the rising divorce rate, especially in the past ten years. The process by which the husband and wife's relationship ends and the marriage is dissolved is known as dissolution of marriage. Divorce is a painful process that leads to a number of legal and social problems, including custody, maintenance, and guardianship.
Divorce may be the right decision for the couple, but it may not be the best option for their kids, who are the ones who suffer the most from the parents' separation because family shapes a child's identity and influences how they develop. An individual may be psychologically scarred by an unpleasant family. Children who experience divorce are nearly always traumatized. It makes youngsters more vulnerable to behavioural and psychological issues. The youngster will still experience the effects even though they are too young to verbally communicate what is going on in their lives. First of all, the children find it difficult to accept that their parents are no longer living together. A youngster may have to move to a new house and occasionally a new school as a result of divorce. It is challenging to quickly adjust to new circumstances.
When they witness their parents parting ways permanently, their sensitive minds can go into shock. Youngsters from broken homes typically experience more emotional problems than youngsters from other types of families. Divorce is still seen as taboo in India because of the nation's infamous social taboos and deeply ingrained cultural and religious beliefs. Compared to other children who come from a perfect home, children of divorced parents are treated differently and do not receive the same level of respect. As a result, the youngster develops an overall personality disorder that could cause a lot of issues down the road. In our society, a youngster from a broken home has to frequently face many questions. The child has trouble getting accepted to school. Teachers and friends frequently inquire about their parents, even if they are accepted to the school.
The child's academic performance is significantly impacted by the stress and disruption brought on by the divorce. Issues such as a general decline in the child's academic performance, trouble focusing on schoolwork, and a lack of drive may be observed. A child's low academic performance is one of the numerous issues that arise from the fighting and toxic surroundings they witness. Parents and teachers should collaborate to provide a supportive environment for the kids in order to help them overcome any challenges they may have in school. Aside from this, the child has a lot of issues. One parent is granted custody of the kid, while the other parent may or may not be granted visitation rights. The parent granted child custody will frequently disparage the other parent. Each will make an effort to instil in the child a dislike for the other parent.
As a result, the youngster will begin to develop animosity toward the other parent. Anger, rebellion, deviance, and rule breaking are the main issues that troubled youngsters are likely to experience. They are vulnerable to drug addiction because they receive care, attention, and guidance from one parent that is insufficient for them as individuals. The youngster no longer feels secure. The child will no longer have the same affection for both parents, and their life will not be exactly as it was. Parents are conveying a message that winning each other over is more important than the child's life when they fight or involve the child in the argument. There are legal concerns in addition to the social, psychological, and mental health ones that were previously covered. The laws in India doesn’t exactly defines "custody.
" Child custody is defined as protection, wellbeing, welfare and maintenance of a child awarded by a court to a responsible adult" in Black's Law Dictionary, 8th edition. Custody includes both physical and legal custody. The award of custody usually grants both rights. When parents file for divorce or separation, the court ordinarily gives custody to one of them, unless both are deemed unsuitable, in which case custody may be given to a third party, usually a family member. If no responsible relative or family friend is willing and able to care for the child in a case involving parental dereliction, such as abuse or neglect, the court may grant custody to the state, placing the child in foster care. WELFARE OF THE CHILD The kid's welfare is taken into consideration when deciding child custody for two reasons.
Making ensuring the youngster is growing up in the best environment possible should be the primary priority. The best interests of the child are given utmost priority. The second consideration is the public interest in regard to the child's healthy growth. The Court Vivek Singh v. Romani Sing1decided that as children are the country's future, their proper development is in the public interest. Therefore, when deciding child custody, the court takes into account two factors: i. Providing the youngster with optimal surroundings. ii. Making sure he develops healthily for the good of society. To decide who of the two parents is better competent to be granted custody of the kid, the court applies a positive test that was created by the Supreme Court in the case of Nil Ratan Kundu v. Abhijit Kundu2.
Since the criterion is not that one parent is unfit or ineligible, custody will be awarded to the other parent. Whoever can provide the child with the finest assistance is chosen. However, this does not mean that the courts completely disregard the disadvantages. They are perceived, therefore, as refusing custody to a parent who is unsuitable in this situation. A number of child welfare principles were recently reinforced by the Supreme Court in its landmark decision in Smriti Madan Kansagra v. Perry Kansagra3. The court held that all other considerations must be corelated to the welfare of the child. The Supreme Court further stressed that custody disputes should be resolved based on the "sole and predominant criterion of what would serve the best interest of the minor" rather than the parties' legal rights.
1 AIR 2017 SC 929
2(2008)9 SCC 413
3 CIVIL APPEAL NO.3559 of 2020
In the Gaurav Nagpal v. Sumedha Nagpal4 case, the Supreme Court further decided that the term "welfare" must be interpreted widely, implying that a child's moral and ethical well-being should be accorded equal weight with his physical well-being. To decide what is in the child's best interests, the court takes into account a variety of factors, including the child's age, the living conditions it has access to, the parents' financial status, etc. In the Nil Ratan Kundu case5, the Supreme Court laid forth the guidelines for child custody. Even while the "relevant statutes and the rights flowing therefrom" need to be considered, these disputes shouldn't be resolved solely by legal interpretation. As a "human problem" that needs a "human touch" to address, the court describes the custody conflict.
The Supreme Court always remained by the rule that a court is neither bound by statutes or by strict rules of evidence or procedure and nor by precedents while making custody decisions in order to assist the court in applying this human touch. The "child's ordinary comfort, contentment, health, education, intellectual development, and favourable surroundings," as well as or much more so, its moral and ethical ideals, must be taken into account by the court when rendering rulings. In addition to this, the court will assess how it has interacted with the child. In the Smriti Kansagra case6, the child whose custody was in question had mostly lived with his mother. Since the child tended to respect and appreciate his father during their contacts, the court understood the child's choice and gave it significant weight when deciding that the father should be given custody.
Another reminder that the child's nationality should be considered. If custody is granted to a parent whose nationality is different from the child's, the parent must obtain an order from the relevant national court acknowledging the custody order issued by the Indian court. This requirement was established by the Delhi High Court in the case of Navtej Singh v. State of NCT of Delhi7 and restated by the Higher Court in the case of Smriti Kansagra8. Aside from these factors, it should be clear that a parent's financial status is not the only factor that the legal system takes into account. In the Gaurav Nagpal v. Sumedha Nagpal case, the
4 AIR 2009 SC 557
5 Ibid at 2.
6 Ibid at 3.
7 W.P (CRL) 725 of 2017
8 Ibid at 3.
court awarded custody to the mother because it felt she was more suited to raise the child, despite the fact that the father made far more money than the mother. The Supreme Court lists a conclusive set of standards in Lahari Sakhamuri v. Sobhan Kodali9 and specifies the following standards that the courts must follow while deciding custody disputes: "(1) mental stability; (2) maturity and judgment; (3) the capacity to grant access to schools; (4) moral character; (5) the capacity to provide ongoing community involvement; (6) financial sufficiency, and factors involving the relationship with the child rather than the parent's personal traits.
" JOINT CUSTODY APPROACH There has been strong support for shared parenting as a common practice in India, despite the fact that the Principle of the Welfare of the Child is explained in the part above to determine which parent should be granted custody. In its 257th report, the Law Commission of India offered a thorough analysis of this idea and recommended certain changes to the laws governing joint custody parenthood. According to the Law Commission research, there are two common parenting approaches in India. One is shared responsibility parenting, when the noncustody parent is still in charge of financial management and decision-making. The second is shared access parenting, in which the parent who is now responsible for the kid's upbringing is also the one who has physical access to the child who lives with both parents at different times but is not granted custody.
In accordance with the International Council for Shared Parenting, it is to include both the decision-making parental authority and parental responsibility for the regular upbringing and welfare of the children, between the two parents. Always it should bear in mind children's age and stage of development. Although the concept is widely accepted in many other nations, India does not have any laws that support it. Nonetheless, it has been granted by Indian courts on multiple occasions. The idea that the parents' financial responsibilities are divided equally or in direct proportion to the amount of time they spend with their child is one of the most common issues that results from India's lack of regulations defining how shared parenting should operate.
9 (2019) 5 SCR 240
The Karnataka High Court has issued a landmark decision in the case of Smt. Savitha Seetharam v. Sri Rajiv Vijayasarathy Rathnam10, which explains this concept in light of the welfare principle and specifies particular requirements that permit parents to share parenting. The child's rights, not the rights of the divorced parents, must be considered in these circumstances, the court notes. It also highlights how crucial it is that this issue be treated on an individual basis at all times. Because of this, the parents must present the court with a parenting plan that addresses the child's best interests and welfare before they are allowed a divorce judgment. • In order to avoid any "instability or inconvenience" for the child, the shared parenting plan needs to be created.
• In order to help the court determine the child's needs appropriately, parents must provide the court with their personal profiles. The kid's interests must be the exclusive focus of the model, and parental responsibilities must be such that the child is treated as a person with suitable abilities, limitations, and independent opinions. As a result, the court in this case gave both parents equal access for six months at different times, considering his school days, the percentage of his vacation time, and the requirement that both parents celebrate his birthday together or in agreement while simultaneously sharing all of his information, including his health, extracurricular activities, etc. , regardless of who is in custody at any given time. This instance provides a good model for parental shared access, but it doesn't address how the parents should divide the child's costs.
Since both parents were earning a fair income, this was not a problem in KM Vinaya's case11. This begs the question of how the parents' financial responsibilities would be divided by the court if their incomes differ. The section of this work that follows answers this question. When it is possible, the courts must grant joint custody or shared parenting because of its importance for the child's long-term development. A presumption of shared custody should not
10 AIRONLINE 2020 KAR 1865
11 MFA.NO.1729/2011
apply in these circumstances, though, as doing so would be against the welfare principle for a number of reasons. For example, if a child stays with an abusive parent who has a history of domestic violence, they may experience serious psychological and, in more severe cases, bodily consequences. As a result, when resolving the custody issue, the courts must apply a standard that invalidates the rights of such parents. Aside from that, as was already noted, different courts may offer different ways to shared parenting because there is no legislation defining this concept. The Karnataka High Court ordered that both parents contribute an equal amount to the child's costs, much like it did in the KM Vinaya case12. There would be major problems if other courts embraced this concept or utilized it as a precedent because, in most cases, the two parents do not make the same amount of money.
Drafting laws that govern this concept is the first and most crucial step in resolving this issue, as it is in other countries. In reference to the matter of fiscal responsibility, A pro-rata spending paradigm is what I would want to suggest, where the financial load on each parent is proportionate to their income. In such a situation, the parents' financial obligations can be divided "equitably" as opposed to "equally". In order to submit a model, the parents must agree on other aspects of joint custody, like physical access to the child. Should they fail to do so, the courts might grant it in a manner akin to that which the Karnataka High Court did in the Savitha Seetharam case, allowing the kid to spend some months of the year and their holidays with each parent.
In my opinion, the child would greatly benefit from shared parenting or joint custody since there is no other way to keep the two parents' bond intact even after their separation. Marriage was not intended to promote friendship between two people, but rather to safeguard the child's paternity. The institution of marriage with children always aims at the welfare of children, and if it fails, the same must be safeguarded in every manner. Giving custody to one parent may help the child in some circumstances, but in others where the child may benefit from both parents' contact, this must be done to ensure the child's long-term growth. The concept of shared parenting is obviously beneficial for the child, but as was already said, there are some ambiguities that lead to problems because India lacks laws specifically
12 Ibid at 12.
addressing this. Legislation that completely removes the possibility of any potential problems, such as the parents' unequal income sharing expenses, is therefore crucial. Such regulations must prioritize the model the parents create and consider all relevant information about their individual profiles in order to assess each parent's ability to satisfy the child's needs and provide joint custody in an appropriate manner.