In divorce should the father have equal custody rights to his children?
When we look at the topic rather superficially, we will come up with an answer instantaneously, since all are equal before the eyes of law, a father should have equal custody rights to his children, in divorce.
But such questions when they are considered from a legal perspective, it requires a careful examination, still giving due credit and recognition to the father, as the father of his children.
Let us first of all consider the context. The marriage between the spouses has been broken down irretrievably. The couple has got two children aged about 3 and 1.Father wants equal custody rights over his children. We don’t question or doubt about father’s love and affection towards the children. But there is no scope for him to have equal custody rights to his children because the Hindu Law on Maintenance and Guardianship Act, 1956, a child which is below the age of five, will normally be with the mother only. Again the custody in the case of an illegitimate boy or an illegitimate unmarried girl, the mother is the natural guardian and after her, the father.
Apart from the legal impediments mentioned above, there are certain other physical and psychological factors that prevent the father having an equal right of having the custody of his children. It is quite difficult to hand over the custody of a girl child to a father, when she is between the age of 10 and 12 and is at a stage of attaining puberty. At this stage, the girl child should be with her mother, because of her peculiar physical condition the girl child will be more at ease with her mother than her father, because the girl child cannot speak freely about her physical problems especially the problems pertaining to her menstruation, periods etc and the child will be more at home when she is discussing such problems with her mother than her father. Again the mother will also be more helpful in offering her valuable advice in tackling the physical problems of a girl child than her father.
However, in divorce, a father can avail a right of seeing his children periodically at a place that is agreeable to both.
But, in divorce, a father cannot have the equal custody of his children because the court has to take into consideration the age of the child and in case of a girl child, her actual stage in life, her physical features etc and accordingly decide the question of conferring equal custody rights to the father over his children. Such restrictions are necessary in the interest of the child rather than harping on the rights of a father to have equal custody rights over his children.