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Fathers Are Not Second-Class Parents: Addressing Bias in the Child Custody System Towards Fathers

When it comes to children, fathers always are viewed as second-class people, and this is true outside of the courtroom as well. Leaving everything aside, let's start with a truthful fight. The only thing left to do is to enforce the terms you and your ex have agreed upon after the court wants you to reach an agreement. As long as both parents are sensible and both agree, that is as ideal as it gets.

If you are not, the court will decide what it deems reasonable based on what "it believes," which might vary from judge to judge, is in the child's best interest. And in this process of custodial fight, fathers or the male parent are often on the receiving end, while the mother gets the alimony and the custody of the child along with monthly child support pay, the father gets often left with bills to pay and might get to see his offspring once in a week for a few hour. Despite recent trends in rulings, courts have a lot of latitude when it comes to custody decisions.

Any order that they judge appropriate and reasonable may be passed. As a result, real change can only come from the bottom up and requires changing the thinking of the judges. This paper aims to look into how and why fathers or male parents are discriminated in custody matters.

"When by birth a child is subject to a father it is for the general interest of children and really for the interest of the particular infant that the Court should not, except in extreme cases interfere with the discretion of the father but leave to him the responsibility by exercising that power which nature has given by the birth of the child."[1]

When a marriage fails or the partners divorce, it is the children born of the marriage who suffer the most. So, while parents have the right to custody of their children, Indian law prioritizes the welfare of the child when selecting who gets custody of a young child. For a very long time, custodial fathers had to limit their parental rights to weekends or some other arrangement. But the new family dynamic has dramatically changed the way custody disputes are resolved.

The reality of today's world can frequently clash with lingering societal stereotypes from earlier generations. Usually, people naturally think that a woman would get favorable consideration when it comes to child custody . Even though dads have the legal right to have a role in what happens to their children, they frequently get counsel to not fight for greater rights.

In the event that the father appears in court, he will probably be interrogated about just how close he is to his kid and will need to demonstrate that he is involved in every aspect of his child's life by knowing the child's interests, hobbies, and other specifics but generally the same does not apply in the case of mother.

Mothers replaced dads as the "primary and irreplaceable caregivers" as a result of the "feminization of the Homefront", according to "law and custom," resulting in a "progressive loss of substance of the father's authority and a diminution of his power in the family and over the family." The stereotypes of moms as domestic caregivers and main childrearing and males as the family's principal provider were developed.[2]

The obvious paucity of statistics covering family court rulings hinders attempts to draw inferences from observed data. As with other low-level courts, one of the ostensible causes is the absence of family court rulings in different legal databases. The fact that procedures take place in secret is another reason why family courts are unique. As a result, the case's facts are frequently hazy. It is typically not possible to obtain Family Court rulings online, which makes it more difficult to create databases and make verdicts more public.

History Of Gendered-Biased Child Custody

Historically, dads provided for their families while moms took care of their children. As divorce rates increased in the middle of the 20th century, these conventional gender norms crept into the legal system. The general consensus was that dads were better suited to pay child support than they were to have custody of the kids since they were too busy working and weren't innately nurturing.

The development of husband-wife relationships and the shifting attitudes toward children are both reflected in the history of child custody after divorce. Children were seen as economic assets whose labor was useful to their parents and other adults throughout the colonial era and the early Republic. The father, who was the head of the family in those days, had unrestricted access to his children both throughout the marriage and in the uncommon case of divorce. The significance of the kid as a worker declined during the course of the nineteenth century, and greater focus was placed on child nurturing and education.

There was a legal provision known as the "tender years doctrine" that favored the mother in trial. According to this regulation, children should not be with their mothers because of the inherent affinity that young children have to them. This rendered the father's ability to influence child custody all but impossible.[3]

Even though this statute is no longer in effect, instances of gender prejudice and child custody still occur today. Mothers appear to gain the most from child custody disputes, whether this is as a result of society's own classification of women as housewives and childrearing personnel or the prejudice of individual judges.

During the first century of the USA, changes were made to the legal and social standing of children. The colonial concept of children as labor-scarce helping hands gave way to a romantic, emotional picture of children who were no longer viewed as being similar to servants under the entire control of their fathers or masters but were instead thought to have interests of their own. These hobbies were increasingly associated with the protective mother.

The causes of this change are complicated and mirror the growing middle-class society, where parental emotional and educational investment has replaced the previous children's economic usefulness to the parents. The right to child custody was a key tenet of the newly organized women's movement around the middle of the 20th century. The Seneca Falls Convention Declaration of Rights and Sentiments, which served as the foundational text for the women's rights movement, has the following statement that exemplifies this priority:

"He [the legislative and judicial patriarchy] has so framed the laws of divorce as to what shall be the proper causes, and in the case of separation, to whom the guardianship of the children shall be given as to be wholly regardless of the happiness of women�the law in all cases going upon the false supposition of the supremacy of man and giving all power into his hands."[4]

Judges were still conflicted on whether to apply the father's common law rights or the more recent standard of the child's best interests. However, the tendency eventually benefited kids. In especially for very young or female children, the mother of the kid was increasingly seen as having the child's best interests at heart. The tender years theory refers to this inclination of courts to give newborns and young children to their mothers. In People ex rel. Sinclair v. Sinclair[5], the court declared the following in order to give a four-year-old kid to his mother:

"Nature has devolved upon the mother the nurture and care of infants during their tender years, and in that period such care, for all practical purposes, in the absence of exceptional circumstances, is almost exclusively committed to her. At such periods of life courts do not hesitate to award the care and custody of young infants to the wife as against the paramount right of the husband where the wife has shown herself to be a proper person and is able to fully discharge her duty toward the child."

When the mother was deemed unsuitable, there was an almost uniform exception to the expanding trend of giving young children to their mother. Courts in the nineteenth century held mothers to very high moral standards, which made them more appealing to them in custody cases but also made judges harshly penalize them when they deviated from accepted morality. According to the court, infidelity and leaving their husbands without good reason were the two offenses that led to mothers losing custody of their kids the most frequently.

In essence, the Hindu Guardianship and Minority Act, which is based on the Guardians and Wards act of 1890[6], may be traced back to English law as the principle of custody and guardianships as it is codified in the Indian legal system. Mothers received autonomous legal recognition for the first time when divorce was made mandatory in England by the Matrimonial Causes Act of 1857, as opposed to their former legal position being created with their husbands upon marriage.

As a result, the idea of divorced wives contesting their husbands' natural guardianship entered public attention. The notion that marital litigation is not to punish the guilty but merely to safeguard the wellbeing of the kid has been adopted by courts in England. The idea that "the welfare of the child is paramount consideration in custodial matters" emerged as a result. This paper will examine in depth what is meant by "welfare" and the gender prejudices that are ingrained in how it is interpreted.

Reason Behind Bias

One of the most frequently debated topics when it concerns child custody is the prejudice of family courts towards dads. While it's sometimes implied that a father's legal rights would always be violated in court, However, the child's best interests come first and are what ultimately determine custody arrangements. Custody judgments often reflect the value of having both parents involved in their children's life as long as it's safe. Nevertheless, family court participants such as judges, attorneys, and others may have personal prejudices.

"Neither the father nor the mother of a minor can, as of a right, claim to be appointed by the court as the guardian unless such an appointment is for the welfare of the minor," Despite the fact that custody decisions are made in the best interests of the kid, the phrase "best interest" is fairly open-ended and leaves room to the discretion of the judges.

In most circumstances, all parties concerned assume that the mother is the sole caregiver. It is thought, especially for small children, that the mother will take care of their daily requirements. And, while this is not often the case, fathers must jump through hoops to show otherwise. Another difficulty is that when a couple divorces or a kid is born outside of a marriage, the kid usually lives predominantly with the mother.

Children often reside with their mother and visit their father, despite the fact that father provided the same level of care for the children as mother did while the two of them were together, because of assumptions and prejudices that have been established in both parties.

This is especially difficult for dads of newborns and preschoolers. They are frequently restricted from spending the night with their kids without the assistance of a court, and even when the court is engaged, the burden is on them to demonstrate that it is safe for the kid to stay overnight at their house.

Because the court wishes to maintain the status quo wherever feasible, finding the primary caregiver is a significant aspect in evaluating the best interests of the child. Despite the fact that many men care for their children equally, the mother is frequently seen as the "primary caretaker," which is unjust to devoted fathers. "Men and women aren't the same. And they won't be the same. That doesn't mean that they can't be treated fairly" [7]

System In India

In 2016, High Court of New Delhi Set aside 3 orders passed by family courts in a child custody case on the ground of 'reasonable apprehension of bias' while giving fathers only right to visit his offspring only on" every Wednesday and Friday, and overnight stay of the minor on every second and fourth Saturday".[8]

Do courts have a prejudice against fathers? No. In India and other growing and developed nations, the rules governing custody do not expressly prohibit entirely gender-based custodial judgements. Legally speaking, the criteria of what is in the child's best interests applies to all parents, irrespective of gender.

If there is bias, it arises from those who work for the courts. A judge with a more traditional outlook can be harsher on dads than on moms. If you have a girl, they'll be more critical of your parenting skills and desire to spend time with the kids. Additionally, these judges are more inclined to grant dads restricted parenting time, like as weekends only.

Both parents or guardians are entitled to the same child custody, as stated in the Guardians and Wards Act of 1890. However, the court still has the last say in who gets to raise a child. To analyze gender discrimination by the court, we must first understand how it perceives preconceived stereotypical gender roles work inside a family structure.

Parents often face a number of preconceived gendered stereotypes. Women are thought to take more care than males, according to a common belief. Another prejudice comes from the notion that the courts are initially always biased in favor of women during custody. Given that moms appear to be built to support excellence, they are frequently able to administer to the children, which naturally goes for them.

These are typical tasks for women, such as caring for children on a daily basis, providing for others, working on schoolwork, or attending doctoral meetings for kids. But it's just untrue that dads are less capable than mothers of raising their own children.

Joint legal custody, commonly referred to as joint parenting, is centered on the philosophy that both parents should remain active in their offspring's upbringing following their divorce. As joint legal guardians, both parents have equivalent decision-making authority over their children's lives and are equally accountable for meeting their needs.

However, at the moment, India's custody laws primarily ignore parental shares, and disputes between parents over who gets exclusive custody of the kids end up being nasty battles against the best interests and well-being of the kid. The majority of times, cases come to a conclusion when the court names one of the parties as the primary guardian and permits the other generally father to visit once a week or once every three months.

To address the stigma against fathers The Law Committee Report proposes to repeal the Wards and Guardians Act of 1890 and the Hindu Minorities and Guardians Act of 1956 in two legislative portions in order to improve their positive outlook. It is advised to alter these sections, which are often used in lengthy cases, "amending to eliminate the supremacy of one father over the other mother and to equally treat both father and mother as the natural guardians."[9]

Not just in Hindu personal law but in other personal laws as well, for instance, the Muslim Personal Law (Shariat) of 1937, which allows the application of Shariat law to custody issues, serves as a clear illustration of how prevalent gender discrimination is in Islam. It states that as long as the mother is judged to be innocent of any crime, her primary right to custody of young children is recognized as the right to "hizanat"[10]

Though it would seem that India is claiming to be a more gender-neutral country when it comes to custody laws, the many judgements tend to differ, while they are busy giving the mother the title of custodian.

The Law Commission advises the government on custody that "Financial resources of parents, and the standard of living of the child must be considered when fixing such amounts (child support)" but the problem is that in India, after a divorce, a divorced wife's financial situation greatly depends on the alimony[11] she is apparently entitled to receive from her ex-husband. In this circumstance, where the law assumes that it is the man's responsibility to provide for food, clothing, and shelter and it is the man who is liable to pay for both alimony and the child support even the part which is supposed to be paid by the mother (indirectly).

"Running two homes costs more than running one, and work obligations may conflict with child custody." Fathers who work long hours may find themselves at a disadvantage since Best Interests-based courts may be reluctant to wake up kids too early or allow other annoyances,"...our courts are turning this society into a fatherless society. If you see how fathers are made to literally beg for a few hours to spend with their own children. No parent deserves to suffer like that."[12]

Further In the case of Ms. Githa Hariharan & Anr v. Reserve Bank of India & Anr[13], Apex Court recognized that gender equality is one of the fundamental principles of the constitution, making this move clear for the first time, however the same attitude, was misread by the Karnataka High Court, which found that growing up with one's mother is the most essential and natural phase in a kid's life, when "a child gets the best education and protection."

However, the Supreme Court ruled in Dr. Ashish Ranjan v. Dr. Anupama Tandon (2010)[14] that a woman is not beyond using the kid as her pawn either. It was determined in the aforementioned case that the minor child's mentality had been shaped in such a way that he had no regard for or affection for the father. Similar to this, the Karnataka High Court held that a kid receives the best upbringing and protection from their mother in the case of Chethana Ramatheertha v. Kumar V. Jahgirdar (2002)[15]. The Supreme Court rejected this broad generalization in an appeal (AIR 2004 SC 1525). The Supreme Court's assertion that a mother's custody would always be preferable to a father's was explicitly rejected by the Apex Court.

In the historic ruling addressing child custody in Roxann Sharma v. Arun Sharma[16], where the court ruled that the father should receive custody if the mother cannot demonstrate her appropriateness for the kid and the father can demonstrate that the mother is unsuitable for the child, and he is the best person to raise the child. The court ruled that in order to get custody of the kid, the father must establish that giving the child to the mother would not be in the child's best interests. According to this ruling, if the circumstances are suitable, the father may also get custody of his kid.

It is clear from the aforementioned cases that the mother is always the court's first choice for custody while the father must always display his commitment to the child's development. This violates the father's right to equality and shows that the judiciary is ignorant of the fact that most mothers who want custody of their children are much more interested in the child support payments that go along with it, together with alimony that's a useful assumption.

Indian judicial institutions, especially Family Courts, function within a larger social framework. A family unit with a male and female parent and biological children is preferred by traditional gender norms. They see the mother as nurturing the child and the father as providing for them financially. Fathers are not expected to spend as much time with the kids as mothers do. Their main responsibility is to pay for them to live comfortably. The mother, on the other hand, is to take a direct interest in every element of their lives.

The number of facts compels us to reconsider the appropriateness of traditional custody. It is difficult to defend a custody arrangement that consistently and unavoidably shatters the bond between a divorced father and his children, unless you think that fathers are less valuable to their children after a divorce. It's time to remove the myth that women are the only ones who matter to their children from custody laws because it's untrue.

In many situations, these preconceptions may even be true. Men are frequently discouraged from being overly active in their children's lives by social expectations of a father's role. Most of the persons who will be impacted by a law are considered while drafting it. This legal idea has long been accepted.

Therefore, it is plausible to say that laws in India merely reflect the fact that it is a traditional society and that stereotypes are frequently used. The purpose of legislation, however, is to promote social change. Where does this looping relationship between laws reflecting society's bigotry and laws reflecting society's prejudice end?

Instead of merely maintaining the existing quo, the law must act as the trigger for this transformation. That is how the cycle may be broken. Discrimination shouldn't be used as justification for further discrimination. The same gender prejudice that results in this is maintained through such stereotyped judgements. We must prevent these gendered assumptions about marital responsibilities from skewing legal judgments, after al fathers are not second-class parents.

"I don't have children that I've lost in a bitter custody dispute. But I see an enormous wound in kids due to a lack of their dads." - Warren Farrell

  1. Lorna Mckee & Margaret O'brien Eds., The Father Figure 28 (1982) (quoting In Re Agar-Ellis, 24 Ch. D. 317 (1883) (England)).
  2. Robert, Krisztina. "Constructions Of 'Home,' 'Front,' And Women's Military Employment In First-World-War Britain: A Spatial Interpretation." History and Theory, vol. 52, no. 3, 2013, pp. 319�43. JSTOR,
  3. Warshak, Richard. (2005). Gender bias in custody decisions. Family Court Review. 34. 396 - 409. 10.1111/j.174-1617.1996.tb00429.x.
  4. Declaration of sentiments and resolutions, Seneca Falls (1848) CPTL (no date). Available at:
  5. People ex Rel. Sinclair v. Sinclair, 91 A.D. 322, 86 N.Y.S. 539 (N.Y. App. Div. 1904)
  6. The Guardians and Wards Act, 1890
  7. Jordan Peterson, "Jordan Peterson debate on the gender pay gap, campus protests and postmodernism", Interview by Newman ,Cathy, Channel 4 News, Jan 16, 2018.
  8. 'apprehension of bias': HC on judge Conduct in child custody case (2022) The Indian Express. Available at:
  9. law commission of india (no date) Report No.257 On "Reforms In Guardianship And Custody Laws In India", Indiakanoon. Available at:
  10. The Muslim personal law (Shariat) application act, 1937 - Legislative (no date). Available at:
  11. In the case of Ruma Chakraborty vs. Sudha Rani Benarjee, it was noted that maintenance would be clear from a reading of Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956, that the legislature intended to provide real maintenance, not just basic or starving maintenance, by including provisions for food, clothing, and housing. The legislature's intent is further evident from the words "also the reasonable expenses of" found in clause (ii) of Section 3(b) of the Hindu Adoption and Maintenance Act, which clearly indicates that an unmarried daughter is also entitled to the costs associated with an incident to her marriage in addition to the expenses of food, clothing, residence, etc.
  12. Bhardwaj, D.N. (no date) Glaring bias against giving fathers custody of child underlines need to review marital dispute laws, Swarajyamag. Available at:
  13. Ms Githa Hariharan and another v. Reserve Bank of India and another (AIR 1999, 2 SCC 228)
  14. Dr. Ashish Ranjan v/s Dr. Anupama Tandon & Another, Contempt Petition (Civil) No. 394 of 2009 IN Transfer Petition (Civil) No. 195 of 2008
  15. Kumar V. Jahgirdar vs Chethana Ramatheertha, 9 January 2004, Special Leave Petition (civil) 4230-4231 of 2003
  16. Roxann Sharma vs Arun Sharma on 17 February, 2015, Civil Appeal No. 1966 OF 2015, (Arising out of SLP No. 31615 of 2014)

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