Father's Day: A thought for fathers involved in legal battles over custody of their children

Updated Jun 15, 2024, 15:32 IST

Custody battles can be traumatic for fathers. For example, Kishan Chand, a 35-year-old father, shares his heartbreaking battle to gain custody of his daughter, whom he had not known since she was born. Just like him, many fathers go through an agonizing time trying to get custody of their children. If they lose custody in court, they are left with no choice but to rely on the mercy of the child's mother to get to know her children. This is true for those men who were forgotten on Father's Day and forced to be separated from their children.

Kishan Chand (35) last met his daughter when she was just one year old. His daughter is now seven and in second grade. He fought for custody of her for years, but lost. “The last few years have been terrible. They [ex-wife] three cases were filed against me – under the Dowry Prohibition Act, Section 125 of the Code of Criminal Procedure, 1973 (CrPC), Section 498, and the provisions of the Domestic Violence Act, 2005. While I was fighting these false cases, I was also fighting for the custody of my child, which I lost because the law says that a child below five years of age is normally given to the mother. They expect men not to cry, but I cried in court and at the police station because I knew my daughter was gone.”

He last saw his daughter in July 2023. “It was my last court hearing and when I left the premises, I saw my daughter sitting in the car. She has grown so big, was my first thought. She was just a baby when I last saw her,” he says. Although the court allowed him to visit his daughter, Chand claims that his ex-wife's family never allowed him to do so. “I tried to meet them a few times but they refused. Finally, I gave up because they threatened to file more cases against me.”

While on Sunday, 16 June, FatherWhen the 20th birthday comes around, people like Chand will have some memories of the time spent with their child. “I was not even invited to her first birthday. I did not give birth to her, but that does not mean I do not have feelings for my child or do not want to give her a good upbringing. My child was snatched from me. Unfortunately, she was used as a pawn to get whatever they wanted out of me. I have paid Rs 15 lakh as compensation and have to pay Rs 15,000 every month as maintenance for a child I have not seen for 6 years.”

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Even though there are legal provisions that can award custody to the father, the prevailing narrative in society is that a man cannot take on the role of a mother.

Rohit Singh* (name changed on request) has not been able to meet his child for two years as his divorce proceedings are pending in court. “This is so traumatic. The father should also be granted the same access to the child. He is my biological child and how can anyone think for a second that I have less feelings for him.”

A legal expert explains the Hindu Minority and Guardianship Act of 1956, which comes into play in custody disputes over one or more children.

Vishal Gautam, a lawyer from Delhi-NCR, says, “This law works according to certain sections laid down in it. Both parents have custody, but the court has the final decision-making power. The Guardians and Wards Act, 1890 states that the welfare of the minor is the primary priority.”

There are five types of custody of a child: physical custody, joint custody, legal custody, sole legal custody and third party custody. “Under Section 6 of the Act, the custody of a child below five years of age is usually awarded to the mother. So, in such cases, there is little scope for the father to get custody. In most cases, custody is awarded to the mother unless it can be proven that she is unable to care for the child. In 95% of cases, custody goes to the mother by default. It is then at her discretion. And in most cases, the father has to bear the maintenance of the child and the mother,” explains Gautam.

Custody of minor girls (under 18) is awarded to the mother. In such cases, the father may be granted visitation rights, but this depends on the cooperation of the child's mother. “They can deny the child contact with the father. Men, who often care deeply about their children, may end up giving in to the mother's unreasonable demands to see her child,” he adds.

Various men’s rights organisations in India are campaigning against abuse of child custody. During the lockdown caused by the COVID-19 pandemic, for example, men who were care In some cases, they were unable to contact their children. Groups like Save Indian Family Foundation (SIFF) had filed a public interest petition demanding virtual visits (WhatsApp, Skype) so that the children are not completely cut off from their fathers.

There have been some cases that have shown that fathers seeking custody of their children have not lost all. In one such case, a father was granted custody of his child after he filed an appeal in the Supreme Court. This decision overturned an earlier order of the Madras High Court that required him to hand over custody to the child's mother. According to a report published in the SCC Times, “A marital dispute arose between the husband and wife, prompting the husband to file a suit. divorce Petition in 2014 while the wife filed a suit for maintenance under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”). Further, it was requested that the wife be granted interim custody of the child which was granted by order dated 22.05.2014 and the husband was directed to give custody of the child to his wife. The husband applied for setting aside the said order giving custody of the child to the mother which was rejected. This rejection was challenged before the District Judge which was again rejected and the revision appeal before the Supreme Court also confirmed the orders of dismissal. Therefore, the father of the child approached the Court [Supreme Court] through immediate appeal.”

The SCC Times report said the court highlighted the fact that the child lived with his father from the beginning. “It was further stated, 'In any marital dispute, it is always the children who bear the brunt.' For a child's healthy growth, love and affection from both parents are necessary. In any matter of Custody of the childhis well-being is our top priority.”