Is there a gender bias in India in how we perceive the parents’ role in a child’s custody?

At a time when parenting is gradually moving out of rigid gender roles, we attempt to understand how courts in the country navigate the hazy area of parenting and custody

Akshat, a 33-year-old textile designer based in Dehradun, was only eight years old when his parents separated. He doesn’t remember much except the days leading up to the filing of the divorce, which created an unstable environment at home, characterised by banging doors, shouting matches between his parents, and nights when they would tire themselves to sleep after an intense argument, forgetting to even cook him dinner. 

“To this day, I don’t know what it was exactly that separated them,” he says. “Maybe one of them cheated on the other or they were just too annoying for each other.”

But what Akshat does remember is living through an ugly custody battle. Each parent tried their best to upstage the other, to the point where his welfare didn’t really matter. The custody battle had become a major ego tussle for them, and winning Akshat was that tight slap they anticipated to the other. 

“Eventually, the judge figured out that neither of them was fit to have my custody because I told him in so many words and awarded my custody to my maternal aunt whom I loved,” he says. “I’d stay with anyone except my parents; they have ruined my life and I blame them for the laundry list of mental health conditions I’m still grappling with.” 

But how do the courts in the country measure love and welfare? Akshat’s case is certainly an exception in the grand scheme of things, at least in India. Over the years, such exceptions are only growing. The idea that a mother is the natural guardian of her child is being challenged, leaving room for a wider interpretation and understanding of parenting as a whole. 

Beyond gender roles 

Recently, the vague area of a child’s custody was brought to focus once again when the Karnataka High Court ruled in favour of a father as a “natural guardian” for the minor child—moving away from the general perception that a father cannot be the natural guardian for a minor child. The court added that if the child is more than five years old, a father's right cannot be denied unless the court is of the opinion to the contrary in the interest of the child's welfare and growth.

The decision was made after the court found reasonable grounds to determine that the mother did not have the best interests of the child, as she was away from the girl with her new partner in Bengaluru. Additionally, the parents of the mother had expressed their unwillingness to look after the child. 

But how reasonable is the five-year limit? Section 6 of the Hindu Minority and Guardianship Act, 1956 provides that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. According to Bombay High Court advocate Bahraiz Irani—who has worked with cases involving the custody of a child—the key word in this section is “ordinarily”, which means that it’s not a binding clause. 

“There is no set precedent in the way a judge decides a custody case and the only benchmark is the welfare of the child, nothing else is given precedence,” Irani explains. “But we’re also aware that India follows an ultra-traditional mindset where the mother is considered the homemaker and the father is the provider. This is changing.”

However, Irani does acknowledge that mothers are relatively given more importance when it comes to the custody of the child. Even the five-year limit, he says, comes with the biological constraint that fathers cannot breastfeed when the child needs nutrition in the form of the mother's milk in the first few years. 

“We see cases such as the Karnataka HC one where the father wins custody because the courts saw merit that he will be best suited for the welfare of the child, so there is a variance in how these cases are decided on the basis of the case itself, the state and other factors.”

When it comes to queer parents who have separated but have adopted a child, Irani says that it will become difficult for them to fight it out in the courts because, unfortunately, same-sex marriage is not legally recognised and there are no provisions in the custody laws that take care of such a scenario. 

The burden of parenting 

The assumption that women are naturally meant to be mothers is one that has always unsettled Nishtha Satyam, the former deputy country representative for UN Women in India, Bhutan and the Maldives. According to her, women are seen to be suited by default to be mothers because they had no choice but to be mothers, and naturally got better at it. 

“The biological ability to give birth is constantly associated with the ability to nurture but those are two separate things and not always mutually exclusive,” she says. “Ninety per cent of women, even in urban households, don’t choose to be parents because motherhood is thrust upon them by society, laws and the larger stereotypes around.”

The world of parenting has as many reluctant mothers as it does reluctant fathers, if not equal then in fair share. This is a thought that Zehra Naqvi explores in what she describes as her “anti-mother memoir” book titled The Reluctant Mother: A Story No One Wants To Tell. 

"I had always seen in movies that women break into tears of joy and men swing their wives up in their arms on learning that they have a new life coming. I do break into tears. But they are tears of shock, of dread, of dismay,” writes Naqvi. “And they are the tears of wrath—the wrath that I unleash on the man that I love the most in the world. Wrath of having my dreams washed over, having my carefully magical universe destroyed.” 

Satyam agrees that while it is true that the percentage of alcoholic and abusive fathers far surpasses mothers, it does not make the notion of a caring father absurd. “We know that there have been men who have fought and won cases for their child’s custody,” she says, adding that it’s patriarchy that defines and reinforces gender roles and biases in how parenting is perceived and followed. 

“This has kept women as caretakers of unpaid care. They are better at it because they are sometimes forced to be better at it. You need the mother for the first three years of the child for biological reasons but the problem comes when you extrapolate those three years to ten by default,” says Satyam.

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