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Custody vs guardianship

Custody vs guardianship

By: Lubna Jerar Naqvi

Like most mothers, Aasiya stayed in a bad and abusive marriage for several years because her husband threatened to take away her children. Until one day her husband tried to snatch her children and that was the last straw; Aasiya not only stood up to him but left him, took her children and moved to her parents’ house. Though her parents wanted her to patch things up with her husband, nothing seemed to change her mind. Aasiya knew she couldn’t go back to him and she would rather die than give her children to her husband; she knew he didn’t really want them but would take them away from her only to prove that he was stronger.

Aasiya went from one lawyer to the next, and all of them told her that her case was extremely weak. She couldn’t bear the thought of being separated from her children. She was under constant pressure. A friend told her of a lawyer who could help her in this matter. And there she found out that not only did she have complete rights over her children, but her husband could not take them from her, unless she decided to give them up.

Even then the kids would not go to the father; they would be handed over to the maternal grandmother for care. As the lawyer explained the whole scenario, she was surprised to hear that the mother has way more rights than the father – something the previous lawyers, whom she approached, were not telling her.

According to her new lawyer, the custody of the children is seldom given to the father. He told her that the father is responsible for all their needs as he is the natural guardian. He has to provide his children the best within his means as maintained by the court based on the demands of the mother.

In our misogynist society, it is very easy to mislead a woman. Therefore, the misconception that the father will take away the child from his/her mother is accepted as the truth. And if the father is financially stronger he will snatch the child whether he wants the child or not – this is supported by the social norms, as well as lack of information of the lawyers. Seldom does a lawyer explain it to the mother that she has more rights.

The truth is that the father has to pay welfare i.e. health, education etc of the child and does not have custody, while the upbringing of the child is the duty of the mother, as the child is in her custody. This has been set mainly because the law sees what is beneficial for the child and sets the rules accordingly. Taking a child away from the mother is extremely painful for the child and maybe detrimental on various levels, therefore the child remains with her.

The law is based on the nature since no one can nurture and care for the child as the mother, the court will not allow the child to be deprived of this.

The only way the father can get custody of the child is to prove in the court that the child will be given a better environment at the father’s house. Another reason why the custody of the child might be given to the father is: if it is proved that the mother is of a bad character. Unfortunately, due to the social fabric of our society, people consider and accept it to be a woman’s fault if she is abandoned by her husband. And many husbands take this plea and are usually successful in portraying their wives as immoral without any difficulty.

If the mother is disqualified to take custody of the child on the basis that she remarries for example, the child is handed over to the nani (maternal grandmother) – who is the first preference of the court; if the maternal grandmother is not available then the child goes to the dadi (paternal grandmother). In case there is no maternal or paternal grandmother, the child’s custody is given to the mother’s sister – and in the end if no one is available to the father’s sister.

The father is not considered for custody mainly on the logic that the father is away for a large part of the day to earn and it is not possible for him to nurture the child properly. Therefore, the mother and then the nani are preferred to do this. This is because the basic welfare of the child is the most important thing for the court.

According to the Guardians and Wards Act (VIII of 1890) Section 25, the determining factors of the custody of a minor are based on the welfare of the minor while considering essential factors relating to the child’s welfare including upbringing, education, health care, congenial domestic atmosphere. The court’s judgement regarding the custody should not be based on whether the father or mother had more love for the child or if the minor is associated with the mother or father.

The Guardian Ward Act 1890 says, there is a difference between the Guardian and Custodian. The natural guardian is always the father. If the mother wants to be the guardian of the child she will have to apply for legal guardianship, otherwise she cannot claim this status.

Since the father is the legal natural guardian, all the expenses of maintenance of the child has to be borne by him, regardless of anything.

The mother has the custody of the child and therefore it is up to her to decide what is good for the welfare of the child – like good education, residence, health, clothes etc. – and the father has to pay the amount as fixed by the court and he cannot dictate anything to the mother.

Despite this, the mother cannot stop the father from meeting the child. If the mother proves that the father is abusive, the father is given legal visiting rights to meet the child in the court premises.

The only cases in which the mother is deprived of her child’s custody is when the mother marries a stranger who is not related to the child; if she goes and resides at a distance from the father’s place of residence; if she is leading an immoral life or is a prostitute or if she neglects to take proper care of the child. But this is also done after minute study of the situation and not taken haphazardly because the child’s welfare is a priority for the court.

Maintenance cases can take years to be resolved but after an amendment of the Family Law in 2002 it has made it necessary for the father to pay a tentative amount that is payable without delay so the child is not deprived of basic things like education and health. This amount is fixed prior to the audience – the parties appearing before the court – and paid immediately without any hitches.

The father has to pay this amount even if the mother’s and her family’s financial position is strong; he cannot take this excuse to withhold payment because the child is his responsibility and not the mother’s or her family’s responsibility. He cannot say that since the mother and/or her family is financially strong, he will not pay.

According to this amendment to the law, the father pays the amount of the maintenance of the child; in case of default the court will immediately give a decision against him.The other guardians of the child are the State or an appointed guardian: someone who desires to be guardian and applies for the legal guardianship or the collector (government official). It is not easy to take the child away from the mother as is the common belief; the court will not allow this unless the father provides concrete proof.

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