The Supreme Court has recently lent its voice to a crucial issue affecting the lives of many families across the country. The case in question involved a plea by a man for the custody of his child, who currently resides with the mother. The court’s ruling indicated that a child has the essential right to affection from both parents. Although the court did not disrupt the family court’s order which favored the mother with the child’s custody, the man was given the option to seek enhancement of his visitation rights.
The Supreme Court’s Observations
The Supreme Court highlighted the importance of putting the child’s interest first in custody battles between separated parents. The court also suggested that family courts should consider the love and care of both parents while deciding upon visitation rights, ensuring that the child is not deprived of either parent’s affection.
Issues related to the Custody of a Child
Existing legal provisions under several personal laws preferentially entrust the custody of children to one parent in case of separation. This results in a discriminatory distribution of custodial rights based on gender, adversely affecting the non-custodial parent and the child, who gets deprived of the care and love of both parents. Critics argue that modern family laws lack a child-centric approach, promoting shared parenting instead. In response to these concerns, the Supreme Court has signaled its willingness to review provisions that grant exclusive custody to one parent following a marital separation.
Divorce and Article 142
A recent case resulted in the Supreme Court using its inherent powers under Article 142 of the Constitution to dissolve a marriage that had been emotionally dead and beyond repair for over two decades. Despite repeated pleas from the apex court to the Centre to amend the law introducing irretrievable breakdown as grounds for divorce, the statute remains unchanged. This leaves couples in broken marriages without an opportunity to move on legally, even if their relationship is irreparably damaged.
An Insight into The Facts
| Fact | Detail |
|---|---|
| Legal Provision in case of separation | Children’s custody is entrusted to one parent |
| Approach Needed | Child-centric approach promoting shared parenting |
| Article 142 | Empowers the apex court to pass necessary orders for doing complete justice |
| Laws surrounding Divorce | Irretrievable breakdown not considered a ground for divorce |
The Role of Law Commission and Article 142
In its reports from 1978 and 2009, the Law Commission recommended that the Centre takes immediate action to amend laws related to irretrievable breakdown of marriage, where the relationship has reached deadlock. However, with the Centre’s failure to act on these suggestions, the apex court has occasionally invoked Article 142 to dissolve a marriage when it is found to be unworkable, emotionally dead, and beyond repair, even disregarding the absence of legal grounds for divorce.