In a recent divorce proceeding before the Supreme Court (Himanshu Chordia vs Arushi Jain), it was reiterated, once again, that the child needs the love and care of both parents. The Supreme Court’s comments echo the Latin phrase, parens patriae, which means that the State can assume the role of the parent of a child in need of protection. The assumption of this role by the State/court is important because parents are often adversaries in divorce proceedings and, thus, none of them can truly represent the interests of the child. Their only motive in such situations is to win the child from the contesting spouse.
As much as the court is trusted with parental responsibilities in such situations, the real question is if the court is competent to second guess the child’s best interests. A much easier method of ascertaining the best interests of the child would be to give some agency to the child since he/she deserves to have a say in the matter. A lot of children blame themselves for parental separation. The trauma of parental separation can hinder a child’s overall development. The least that can be done is to ensure that the child gets some agency in deciding who his/her custodian would be post separation.
Article 12 of the Convention of the Rights of the Child argues that children have the right to express their views regarding everything that affects them. But the law does not do much to ensure this. Section 17 of the Guardians and Wards Act underlines the parameters that the court ought to consider while deciding the guardianship of a child. These factors include age, sex and religion of the minor, the character and the capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. The provision further states that if a minor can form an intelligent preference, the court may consider that preference. This provision, therefore, directs the court to ascertain what the child wants.
However, the wishes of the child cannot often be ascertained because a child can be too young to express them. A parent may also try to influence the child against the other contesting parent. Along with this is the problem of conventional morality that plagues laws. For instance, the Hindu Minority and Guardianship Act endorses the tender age doctrine that says that the child till the age of five is better off with the mother. This provision re-enforces gender stereotypes as per which women are supposed to be better at looking after children and fathers are not deemed ideal caretakers. Another manifestation of social bias can be seen in Section 6A of the Hindu Minority and Guardianship Act by which the natural guardianship of the child rests with the father. It is only after the death of the father, or when he has been declared unfit to be the natural guardian, that the mother becomes the natural guardian. This provision takes away women’s agency.
There is a need to have a guardian Ad Litem: that is a person who assumes the guardianship of the minor for the purpose of litigation. Such a person can represent the best interests of the child before the court. This concept has rarely been used in India even though it has fared well in the courts of the US. Archaic laws must also be reformed to crush gender stereotypes and serve the child’s best interests.
