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Report No. 133

4.5.1. Ordinarily a minor not to be obliged to stay with his or her step-mother.- Where the father of a minor child has obtained a divorce and has remarried, it is desirable that the custody of the minor irrespective of his or her age shall ordinarily be with the mother. If the custody of the child is awarded to the father, the child would be obliged to live with the step-mother. In the first place, the child will have to undergo the trauma of separation from his or her natural mother. In the second place, the child will have to make psychological adjustments in order to live with the step-mother.

While it is somewhat unfair to be sceptical about the treatment that a step-mother might mete out to the step-child, it has to be realized that a psychological fear has come to be associated with the status of a step-mother. Some step-mothers might be capable of treating the step-children with kindness, compassion and consideration. But many others may not be able to do so. In fact, treatment which a child may accept without much protest from the natural mother, the child may not be prepared to accept from a step-mother.

To oblige a minor to live with the step-mother is to make a child undergo a, traumatic experience and to make him or her suffer from a feeling of being oppressed. It is, therefore, necessary to provide that ordinarily the custody of a minor child should be entrusted to the natural mother and the child should not be obliged to live with his or her step-mother when the father has remarried.

4.5.2.1. Ordinarily a minor female child shall not be made to live with her step-father.- Where the mother has remarried, to entrust the custody of a minor female child to the mother would entail the consequence of the minor being made to live with her step-father. While she would be able to avail of the natural love and affection of the mother, she would also be facing the possibility of damaging consequences. The step-father cannot ordinarily be expected to have any real affection and emotional attachment to the child.

More often then not, the step-father is likely to consider the child as a necessary evil or nuisance arising on account of his marriage to the natural mother of the child begotten by her previous husband. Reports emanating from the western countries recording instances of the step-father perpetrating cruelty on the child are too numerous end too frequent to be disregarded. Apart from the physical punishment meted out to the child, so often the child is subjected to sexual harassment. The helpless mother is so often rendered a mute witness to such treatment meted out to the child.

What is happening in the western countries on a large scale is also likely to happen in India if it is not already happening. Under the circumstances, it is desirable to make a provision to the effect that ordinarily a female minor child shall not be made to live with her step-father. The court may consider whether the paternal or maternal grandparents should be entrusted with the custody of the female minor child in such cases. It is, therefore, necessary, to provide accordingly.

4.5.2.2. Where the mother alone has remarried.- In such an event, it would be desirable to provide that 'ordinarily' the minor, even if a male child, should not be made to live with the step-father. For, instances have been noticed where the step-father ill-treats the child or virtually treats him as an errand boy.

4.5.2.3. Where both 'father' and 'mother' have remarried.- The court may determine who shall have the custody of the minor as between the father and the mother or the paternal or maternal grand-parents depending on the assessment of the court as to what is considered to be conducive to the maximum welfare of the minor taking into account all the relevant circumstances of the particular case.

4.5.3. A mother not to be denied custody of the minor mainly on economic considerations.- It is no doubt true that in urban areas, there are more and more working women in the middle class Indian households. But in a large number of households, the woman plays the role of a house-wife, more so in non urban areas. The fact remains that by and large the husband is economically better placed in the sense that he is employed in a position where this economic rewards are far in excess of the income of the wife even in cases where the wife is a working woman. The husband is ordinarily in more affluent circumstances than that of the wife.

In applying the welfare principle, the mere fact that the father is in more affluent circumstances vis-a-vis the mother cannot be allowed to outweigh the sum total of the other circumstances. Besides, the court can always direct the husband to pay maintenance allowance to the children. The factor regarding the superior economic circumstances of the father should not, therefore, be accorded undue weightage. A provision in this behalf is, therefore, required to be made so that the paramount consideration regarding the welfare of the minor does not get distorted in favour of the father's claim to the detriment of the mother's claim on account of the superior economic circumstances of the father.

4.5.4. The minor's need for the emotional support and the warmth of the mother should be accorded prime consideration.- A mother is by nature endowed to impart love and affection to her minor child without having to make any effort. There is a physical bond between the mother and the child right from the time the child was conceived. The child lives on the flesh and blood of the mother till its birth. After its birth, the child is sustained by the mother who feeds the child and tends to it. When the child is in physical discomfort or agony, it is ordinarily the mother who looks after and comforts it. The mother is ordinarily better-equipped then the father to impart such emotion I support and warmth as are essential for the building up of the balanced personality of the child.

The father is ordinarily engrossed in his profession or employment or in his economic pursuits. A father would scarcely have the time for the child or be in a position to build up that emotional relationship with the child which the mother can build even if the mother is also a working woman. In order to enable the child to develop a well-oriented and balanced personality, it is essential that the child is not starved of emotional support; and warmth which are essential for its growth. Under the circumstances, this factor deserves to be accorded prime consideration in resolving issues regarding custody of the child and a provision in this behalf needs to be made whilst spelling out the ingredients of the welfare principle.



Removal of Discrimination against Women in matters relating to Guardianship and Custody of Minor Children and elaboration of the Welfare Principle Back




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