Indian Law Commission has finally woken up and is considering to recommend hared parenting laws to Government for people going through separation or divorce. It has asked suggestions and views of civil society and NGOs regarding recommendations o 12 specific questions. SIFF -Father’s Rights Wing has the following responses to the law commission of India.
Q1. Whether shared parenting should be an option and/or a preference for the courts?
Shared Parenting must be the default arrangement of parenting if there is a separation or divorce. It must not be an option or a preference.
As India is a gynocentric society which puts the interests of women before those of men, we are observing a very high amount of discrimination against fathers wherein mothers are simply assumed to be the best parent ubiquitously and stereotypically in all cases. In such a bizarre scenario it becomes imperative on the legislature to enact such legal provisions that Shared Parenting becomes the standard default and not an option. It should neither be an option and/or preference.
It must be noted that Indian family courts are going out of their ways to become pro-women rather than focusing on justice. If courts are given an option or preference, then they will be used to just deny fathers the access to their children which will defeat the very purpose of shared parenting.
Q2. Should such a presumption be dependent on the age or gender of the child?
No presumptions must be made regarding shared parenting.
If a growing male child can stay with a mother, then a growing female child can also stay with the father. When one parent passes away, the other parent takes care of kids irrespective of age or gender. It will be ridiculous if any court stops a parent from parenting based on age or gender, when his or her spouse passes away.
This situation should also be considered analogous to putting restriction on every father from meeting his children based on age and gender of the child irrespective of the status of marriage.
It must be noted that today’s young men emotionally connect with their children and nurture them unlike the fathers of previous generation. It is cruelty on fathers, if age or gender of the child is used as excuse by courts to cut off or alienate fathers from their children.
It must also be noted that due to custody disputes even grandparents from the father’s side are most often cut off from their grand children and they suffer as a result.
When a man is expected to pay child support for a child irrespective of age or gender of the child, why cannot he have parenting rights for the child?
It must also be noted that children carry the risk of being sexually abused by mothers as many such cases are coming to forth wherein female sex predators have targeted children, especially young boys. There are several instances of maid servants sexually abusing male children; however our society and old fashioned legal system is not yet ready to see women as sexual predators.
Q3. Should such shared parentage arrangements be shared as physical custody or shared legal custody or some other derivative thereof?
The shared physical custody must be the default arrangement for parenting with involvement of child’s grandparents wherever possible.
The only exception to that is, when both parents mutually work out any other convenient way of custody.
A shared legal custody is a very technical term which allows the parent to participate in major decisions of the child’s life, education, career, orientation etc. However, parenting is much more than just making decisions or to enable the child to make decisions. It’s the quality time that a father spends with his children that leads to the fulfilling feeling of being a parent. Hence, from this standpoint, all efforts and endeavors must revolve around facilitating shared physical custody and legal custody should be adopted only in completely unavoidable circumstances.
It has been observed in Western Countries that many women deliberately move to another state at a distance to deny the father access to the children. Such attempts must be seriously discouraged by family courts. The courts must consider such attempts as hostile behavior, which can impact the future well-being of the child.
For example, if the parents are living in the same city or nearby cities/towns distant not more than 50 Kms, shared physical custody should be adopted in almost all cases. If they are living in the same country but travel is needed, in that case they can share the child over a 6 months period with each parent and also sharing important holidays and vacations. If the parents are residing in different countries then a suitable agreement can be worked out.
Q4. Should and how can the “best interest of the child”/”welfare of the child” standard be balanced against other factors (i.e. the wishes of the parents, other children, the wishes of the child)
As long as a child is safe and secure, shared physical custody must be the default parenting arrangement. The “best interest of the child” excuse is often interpreted as “best interest of the woman” by family courts and hence it is completely unacceptable.
The “best interest of the child” argument also opens the scope for brainwashing, poisoning the impressionable mind of the child to alienate father.
Family courts have often used “best interest of the child” as an excuse to deny the father’s the access to their children. This gives women enough motivation to poison the child’s mind against the father and such a child behaves in a disturbed manner, when he comes across the father.
It is to be understood that cutting any parent off from his or her children is extreme cruelty on the parent. Today’s young men are emotionally connected to children and they suffer for playing the role of nurturer rather than being just sperm donors. It sends a dangerous signal to the society if men who get involved in children’s lives are punished cruelly by separating them from children.
Hence, any attempts to balance out best interest child vis-à-vis the other factors like wishes of the parent, other children, etc. which lead to obstructions in the implementation of Shared Parenting defeat the very purpose behind “Best interest of the child”.
Q5. How and should the definition of guardian be expanded?
It is more important to realize the importance of Fathers as natural guardians of children than to expand the definition of guardian.
Women are not socially or biologically conditioned to be protectors like men. In an event of high risk or unsafe situation, a typical woman’s behavior is often counterproductive to situation. The panic, high emotions and hysterical behavior that women display actually worsens the situation.
Q6. How to create and implement mediation or conciliation institutions to be necessarily involved in the process of grant of guardianship and shared parentage?
Shared parenting must be default arrangement for parenting. The mediation or conciliation institutions must not play any role here creating uncertainty in the process.
Mediation and conciliation processes in courts are nothing but methods to threaten, coerce and insult men so that he coughs up large sums of money to the separated wife. These institutions have rarely acted in good faith showing any sensitivity to the serious family issues. There are enough occasions where mediators went to the extent of provoking the man by insulting his parents or mother.
Men working in mediation centers often believe that men are evil by nature and they need to bring chivalry to protect or impress the woman howsoever abusive she may be.
The current mediation process in India in matrimonial litigations needs a complete overhaul owing to its extreme gynocentric behavior which places a man’s needs inferior to those of a woman’s needs and the same argument gets extended to fathers and mothers wherein fathers are viewed as demons and mothers as goddesses.
Q7. Whether child welfare officers may act as information/ service providers?
Yes. The child welfare officers must act as information and service providers as not everything should be left to family courts, which are non-transparent and have often not shown any accountability or sensitivity.
Our experience of dealing with aggrieved fathers tells us that there is a huge discrimination of fathers going on in family courts especially around the area of child visitation and custody issues. This also highlights the lack of awareness of father’s rights in the society. Hence, before we institute child welfare officers as information/service providers, we must ensure they are sensitized enough to the concept of father’s rights.
Q8. Whether there should be physical or joint custody or should it be left to the discretion of the judge?
No. Nothing should be left to the discretion of the judge. Joint custody must be default arrangement for parenting.
The Indian family courts has shown absolutely no accountability when it comes to marital problems. People are made to run around multiple courts for years attending dates after dates giving a false hope that they will get some justice and some respite and for one issue, the courts have got 2 or 3 laws. There are multiple maintenance laws. There are also multiple cases opened under domestic violence allegations (under PWDVA and also section 498A). People have been cursing this judicial system for its apathy and insensitivity. The Indian Judiciary is still wrought with the colonial mindset that they can play with people’s lives and it is their birthright to do so. Men and fathers are uncalled for victims of the pathetic mentality of judiciary which considers accountability akin to impasse on freedom.
The basic question arises is, are judges being responsible here or are they even competent to deal with family court cases in a fair and just manner? When contested divorces are rarely granted unless 8 or 9 years pass by, why do judges and lawyers make people run around courts giving them a false hope? We have come across many people having lost mental balance, jobs or have gone into depression due to such false hopes created in family court system.
We have come across many cases wherein the courts have not ordered even basic visitation for fathers even though the petition has been lying in the courts for around 2-3 years. However, the courts have shown extreme amount of volition and discretion in ensuring that the father pays the child maintenance. This is akin to treating fathers as FREE ATM MACHINES and SPERM DONORS.
And these instances also highlight the plight of the father at the hands of a judiciary that is insensitive to father’s rights. It would be extremely preposterous to rely upon such an anti-male and biased judiciary to decide physical or joint custody. It would rather be imperative that the legislature sets down rules and guidelines to facilitate such physical or joint custody in consultation with organizations like SIFF-FRW.
Q9. In which circumstances must shared parentage arrangements be withheld? Eg: domestic violence, insolvency, mental illness
As long as child is safe and secure, no excuses or circumstances must be used to withhold shared parenting.
It is well known that older generation of men running the Government and judicial system do not believe in gender equality and they deny existence of domestic violence against men. They even go to the extent of refusing to conduct any surveys on domestic violence on men so that propaganda can be carried out that men rarely face domestic violence.
It is this set of powerful men who have allowed women to get away by leveling false and baseless allegations of domestic violence under Section 498A as well as Protection of Women against domestic violence act (PWDVA). In fact, this older generation of patriarchal men feels that the younger men have to be harassed using these tools as weapons or negotiation tools.
It is expected that women who do not want shared parenting rights for fathers of their children will use all these excuses to cut off men from their children.
Today men can expect very little from family courts, given the enormous bias and deliberate discrimination of men that is built into family court system. Under no circumstances, women must be allowed to delay the shared parenting.
It must be noted that most judges in family courts are highly conservative people with strong belief in traditional values. Such attitudes clash with modern outlook of many young people, men or women. Many judges even consider granting divorce some kind of moral sin and they tend to believe that people getting divorce or getting separated deserve to suffer. Such clash of two different cultures is harming young people going through separation.
Q10. Should and how does gender inequality (e.g. financial) affect establishing a shared parentage preference or option? E.G. the use of children as bargaining chips to secure maintenance
It is a well-known fact that mothers use children as bargaining tools for maintenance in matrimonial disputes and divorces. Even, to the extent that well-qualified and gainfully employed women are hiding their financial statuses just to make sure the father is made to pay through his nose in the name of the child. Unfortunately, courts are facilitating such behavior.
Well qualified women like CAs, doctors, engineers, graduates, bank executives, financial professionals, teachers etc. should be made to share the expenses of the child and also any payments being made by father should be on actuals only.
After regularizing the financial wherewithal of the child, efforts must be made to ensure shared parenting is adopted.
Q11. What should be the role of the court in matters of joint custody? Should the court be proactive in such matters i.e. a constant supervisor of such arrangements?
Nothing must be left to the discretion of the courts and shared parenting must be the default arrangement for parenting of the child.
Indian family courts are highly inefficient and are known to introduce delays deliberately. This has harmed millions of men, who have lost access to their children for months and years. Millions of children have even forgotten the face of their father. They call their own father as “Uncle” when they meet accidentally. Thanks to family courts, the children have suffered as they are suddenly cut off from a loving father at a tender age, experiencing immense and unspeakable trauma.
The family courts do not have time to deal with existing cases. This situation is unlikely to change even in next 10 years. So, it is obvious that under the excuse of constant supervision, delays will be introduced, litigation is just increased or men are endlessly threatened, coerced and blackmailed in the mediations centers of the courts.
Q12. What should be the nature or limit of discretion that judges can use while awarding joint custody decisions?
Judges should have no discretion at all in the issue of joint custody or shared parenting. Joint custody must be default mechanism for parenting of children during separation or divorce of parents.
Judges must get educated on guidelines of shared parenting and strictly implement the same and come down heavily on women, who take the father for granted and attempt to alienate or poison the child’s mind against him.
Unless a child is safe and secure, a judge must never intervene in the matters of joint custody arrangement.
Our past experience shows whatever law commissions have recommended, the law makers in the parliament have subverted those recommendations by being unduly influenced by the propaganda, lies and fake one-sided statistics by women’s NGOs, United Nations, USAID (of American State Department) and many such global organizations.
This has resulted in extremely one-sided biased unjust laws. One example of such a case is, the Sexual Harassment at Work Place Law. Government ultimately denied men any protection from Sexual Harassment at workplace under pressure from Feminists and global vested agencies, though Law Commission of India had recommended a gender neutral version of this law. Similar sinister attempts are now made to bring high handed discrimination and injustice into proposed Irretrievable Break down of Marriage Law (in the amendment to Hindu Marriage act).
So, it is obvious that whatever law commission recommends in the issue of shared parenting even that will be seriously subverted as many members of parliament have openly been anti-male and have advocated making men second class citizens by denying them basic human rights. Subjecting men to injustice by design seems to be agenda of most of the policy makers.
1. Courts must immediately deny maintenance and alimony to any woman, who opposes or indirectly attempts to prevent her separated husband from accessing and parenting the children.
2. Any attempts by a woman to alienate the child from father or poison the child’s mind must be used to deny her custody temporarily or permanently.
3. Any attempts by a woman to threaten her husband with false cases of Section 498A, Domestic Violence Act etc. must be taken as a serious attempt to alienate the child and the woman must be denied custody of her children.
4. Shared parenting arrangement must be default arrangement of parenting and ex-parte court orders have to be passed and executed if any parent attempts to delay or evade the shared parenting or court proceedings.
5. Under no circumstances the grandparents of the child must be denied access to the children.
6. As our NGO works in this domain being a support group for separated fathers, we have come across thousands of cases. There were situations where the wife and her parents selfishly denied the father and his old parents the access to the minor children. However, as karma takes its own course, the deaths of these wives due to illness or accidents, suddenly reversed the whole custody situation with father getting full rights over the child. Now, the selfish parents of the women have to beg for access to the children.
The lesson here is, blatant discrimination of young men/fathers by family courts, can create strange anomalies and reversals for women and their families, as the law of nature is ultimately much more powerful than any man-made law or any law implemented by a judge.
7. We, in India, are often fascinated by systems in the West and look to imitate them. However, the systems in the West have their own share of discrimination against fathers. Thomas Ball, an ex-army man of US had self-immolated himself in front of the family court after facing extreme discrimination and being alienated from his 4 year old daughter.
Thanks and Regards
Head, Father’s Rights Wing
Save Indian Family Foundation (SIFF)
Phone: 0-94102 17409