TIMES OF INDIA- 27th July,2008

Mum, it seems, may not always be the word when it comes to child custody. It has always been believed that the mother is the natural caregiver of a minor child, unless there is a compelling mental or financial reason. But as some recent court verdicts – like the ones quoted in the box – show, the mother may now lose the custody battle due to a new set of emerging social factors too. “It is a fact that certain principles like the ‘tender years doctrine’, which presuppose that it is in the child’s best interests to be with the mother, are now being challenged,” says Sarasu Esther Thomas, assistant professor, National Law School of India University, Bangalore.

Such a challenge may come from different quarters. Last week, a Delhi court awarded custody of a nine-year-old girl to her grandparents because her widowed mother was a working woman. The court is reported to have said that there is a need to review the approach adopted by the judiciary which has often leaned in favour of the mother as a natural guardian, while deciding matters related to the custody of a minor child. In 2005, Bombay High Court denied child custody to a divorced woman on similar grounds. In this case, while granting child custody to her former husband, the court ruled that even though the mother earned more, she did not have time to devote to their eight-year-old.

So the mother, it appears, can either earn her bread or keep her kids. “It depends upon how old the child is, and what’s the nature of the mother’s work,” says Mehak Sethi, senior legal officer with Lawyers’ Collective, a Delhi-based organisation that deals in human rights advocacy, legal aid and litigation. “If, say, the child is above nine and the mother works in a call centre, how does she take care of him/her? So you bring in the grandparents. As long as the mother has visitation rights, it’s only fair.”

Not everyone subscribes to the logic though. “I wouldn’t agree with such a judgement,” says Supreme Court lawyer Geeta Luthra, who works on human rights issues. “Judgements have earlier said that the fact that a mother is working can never be a ground to deprive her of child custody. At the same time, courts won’t give her custody when she is not economically independent. Now you say she can’t keep the child because she is working. You can’t damn a mother both ways.”

Women activists also feel that such judgements may worsen the tussle between a divorced woman and her in-laws. “I don’t support it at all,” says Ranjana Kumari, director, Centre for Social Research, which works on women’s rights issues. “Does it mean that all single mothers should give away their children? It’s unfortunate that so many court cases these days are retrogressive.” She points out that the risk of such verdicts increases when male children are involved. Thomas too says that “there is the patriarchal notion that a child ‘belongs’ to his father’s family. Again, the child may have been living in a joint family set-up, with grandparents who are also caregivers until the breakup of his/her parents’ marriage.”

It’s obviously a tough call for the courts. But not always so. Sometimes the child may just tilt the balance strong and clear. In May this year, Bombay High Court removed an 11-year-old from his mother’s care after he told the judges that although he loved both parents equally, he wanted to live with his father because he was “extremely rich and offered him a very good lifestyle”.

And this, it seems, is not a one-off case. “Mothers often have softer jobs, so the child may not get the financial comforts that the father could provide,” says Luthra, who has seen this trend increase over the years.

Unfortunately, at least for the mother, there is little the court can do when children specify this in front of the judge. “The court does not go beyond the fact that this is what the child wants. In many circumstances, the court may not realise the commercial reason behind the child’s preference,” says Luthra. “It shocks the conscience. But today’s children, especially 9-14 year-olds, are becoming creatures of not love, but of comfort.” Not a comforting thought, that. But then few things can be as disturbing as custody battles.