Welfare of Child is of Prime Importance 2018

Submitted to: Submitted by:

Dr. Sangita Laha. Dhairya Choudhary.
Associate Professor, Law. Semester: 3rd. Section: B
NUSRL, Ranchi. Roll no. 803

RESEARCH PAPER: HINDU LAW.

RESEARCH TOPIC:

WELFARE OF CHILD IS OF PRIME IMPORTANCE: A CRITICAL APPRAISAL.

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ABSTRACT:
Today’s children are tomorrow’s future, and in order to secure and make that future bright
wellbeing of children is important. Family and state plays an important role in raising the child
as a responsible citizen. The Indian constitution accords rights to children as citizens of the
country, and in keeping with their special status the state has even enacted special laws. Children
also have rights as equal citizens of India, just as any other adult male or female. Beside this still
there are many deformities prevailing in the system which requires amendment. The paper
reviews recent evidence concerning the relative importance of family and parents for child
health, especially child survival in developing countries. In this research, assumptions underlying
adultist ideology are examined and on alternative paradigm which considers children as having
conceptual autonomy and a right to be heard in child protection and social policy form is
discussed. The paper discusses an overview of the wellbeing of children within the child welfare
system considering health, economic and social characteristics. The paper also examines the
changes made in Hindu Law on divorce, custody and maintenance of children including
historical background of divorce and its origin through legislation.

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INTRODUCTION:
At the beginning of the century child welfare writers and policy makers predicted that the
century would be marked as the ‘century of the child’. The twentieth century has been notable
for the study and conceptualization of age of child as a specific stage of life. The
conceptualization has laid emphasis on a perspective which considers childhood as a period of
dependency, requiring protection and development of state system to ensure that protection and
development of state system to ensure that protection. The research deals with the vulnerability
of children in the society and the extent to which the child empowerment and protection system
which are meant for welfare, themselves frequently increase abused child vulnerability to further
abuse. The research paper deals with the role of parents and state in the welfare and upbringing
of the children. It has focused on how state has laid down certain guidelines for the upliftment
and for the wellbeing of the children in the form of various laws. Article 39(f) 1 of the Indian
constitution provides a responsibility on the state to frame policies for safeguarding the interest
and rights of the children. Article 15(3)2 and Article 51.A (k)3 also voice the rights of the
children. Under the Convention on the Rights of the Children the primary obligation to safeguard
the rights of the children is on parents and then on state. The state authorities are empowered to
take all possible measures to ensure protection of child against all forms of discrimination due to
status of parents and family.

The research paper has also tried to reveal the evidence which has indicated that on occasion
children have been victimized within the protection system as a direct consequence of disclosing
abuse. The powerlessness of children in those systems which are designed for their protection
reflects the weakness of children more generally.

1
Indian Constitution, art. 39 (f) –The state shall in particular, direct its policy towards securing that children are
given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against moral and material abandonment.
2
Indian Constitution, art. 15 (3).

3
Indian Constitution, art. 51 A(k)- It shall be duty of every citizen of India, who is a parent or guardian to provide
opportunities for education to his child or, as the case may be toward between age of 6 to 14 years.

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EXISTING LEGAL PROVISIONS CONCERNING WELFARE OF CHILD.

1. SECTION 16 OF HINDU MARRIAGE ACT,1955.

According to the original notion children of void were illegitimate whether the marriage was
declared null or void or not and children of voidable marriages became illegitimate as so on as
the marriage got annulled. After the amendment Marriage Laws, 1976, which has laid down that
children of annulled voidable marriages, which are void under Section 11 of Hindu Marriage
Act,19554, and children of void marriages to be considered as legitimate children. However of
children of only those marriages which are void under Section 11 of Hindu Marriage Act will get
the status of legitimate children and if the marriage is void for some other reasons such as for an
account of lack of proper ceremonies then such children will continue with the status of
illegitimate child. In a case Ramkali v. Mahila Shyamvati5, it was laid down that for the
application under Section 16 of Hindu Marriage Act, 1955, marriage between the parties(parents
of the child) is the condition precedent. The inheritance rights of the children are same as that of
prior to the amendment. 6They are not entitled to inherit property of their grandparents. This also
means that child of void marriages are not entitled to an interest in which his father is a
coparcener.

In a case, Parmanad And Anr. v. Jagrani And Ors7., the question that arose for consideration
before the apex court was with regards to inheritance and further question that was raised
pertained to the constitutional validity of Section 16 of Hindu Marriage Act, 1955. The Court
took note of the legislative intention for incorporating the said provisions and Section 16 which
was amended by the Act 68 of 1976 which says that the said clause seeks to substitute Section 16
so as to clarify the intention and to remove the difficulties in interpretations. The court laid down
that Hindu Marriage Act is beneficient legislation and therefore it has to be interpreted in such a
manner to advance the objective of the legislation. The act intends to bring social reform,
conferment of social status of legitimacy on a group of innocent children, who are otherwise
4
Section 11, Hindu Marriage Act, 1955.
5
AIR 2000 MP 208.
6
Laxmibai v. Limpubai, (1983) Bom 222.
7
AIR 2007 MP 242.

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treated as bastards, is prime object of Section 16. In Gurnam Kaur(Smt) v. Puran Singh 8, the
question raised is whether the appellant is a legitimate child of her father . Section 16(1) of
Hindu Marriage Act,1955, as amended by the amendment act 68 of 1976 laid down that-
Notwithstanding that the marriage is null and void under Section 11 of Hindu Marriage Act, any
child of such marriage who would have been legitimate if the marriage had been valid, shall be
legitimate, whether such child is born before or after the commencement of Marriage Laws
(Amendment) Act, 1976 (68 of 1976) and whether or not decree of nullity is granted in respect of
that marriage under this act and whether or not the marriage is hold to be void otherwise than a
petition under this Act. Thus it would be clear that declaration of voidity of marriage on a
petition of either party or, in other words, declaration of marriage as nullity under a decree which
were preconditioned under Section 12 of this act, is done away with. Consequently as if the
marriage had been valid, the child shall be legitimate whether such child was born before or after
the commencement of Amendment Act 68 of 1976.

2. SECTION 25 &26 OF HINDU MARRIAGE ACT, 1955.

Custody of children is a very important matter and a vital question affecting the children and
parents emotionally, economically and socially. Under Section 26, matrimonial court any be
called upon to decide questions and pass order relating to custody, education and
maintenance of children. In a case Niblett v. Nibelett9, it was held that in all matters including
custody and access, the welfare of the children is the paramount consideration. A divorce is
often followed by a prolonged conflict over the custody of the minor child. Hence, it is
essential to analyse the aspect of the child custody and how the children are affected largely
through custodial arrangements. Custody means the obligation to control, care for and
supervise a child. There is a conflict among the social principles which to be has followed in
a custody case 1) whether to treat child as a detached individual, apart from his blood ties.
2)to emphasize the family unit from the standpoint of the parent. As law cannot compel
harmonious human relationship it cannot prevent all damages and harms to the child
interests. It can only lessen the damage or can provide the means for reducing the harm by
ensuring the child interest are not being neglected. Childs interests are protected by the courts

8
1996 SCC (2) 567.
9
1953 Oudh 153.

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as parent patria. However, within the rigors of the adversary proceedings, without the
separate representation for the child, there are chances that the court may neglect important
interest of the child in both the outcome and process of proceedings. It is therefore important
that the child must be represented by the guardian ad liem whose central responsibility is to
assistance of the court to determine the best interest of the children. At present court often
delve upon the questions of custody of children looking into matters like mental health,
financial status etc of the parents and interest of the child rather than moving on to the prior
notion. Facts of each case should be a matter of anxious consideration for the courts as to
where the welfare of children.

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THE CONCEPT OF PARENTAL RESPONSIBILITIES.

In India, the responsibility of care and protection of children has been with families and
communities. In present era, where joint families rarely exist, with higher percentage of
breakdown of marriages and increased number of divorce all these issues has a direct impact on
the lives of the children. Indian Constitution guarantees many Fundamental Rights to the
children. The approach to ensure the fulfillment of these rights in the family framework is more
needs based rather than rights based. The transition to the rights based approach in a civil society
and government is still evolving. There is a huge need to bring in laws regulating the
responsibility of their parents towards their children.

For the wellbeing of a child parent plays a most important and crucial part. Parent is most
important person in the life of the children. He protects the child from the evils of the society and
nurtures and care s for the child. Parent is important in shaping and horning the child personality
as a good human being and also as a responsible citizen of a society. Hence, emphasis must be
laid upon good and responsible parenting. Parents are responsible for the conception and birth of
a child and hence are automatically responsible for their children wellbeing in a biological,
sociological and economical manner. In common parlance, a parent is father or mother of a child
who takes care of his/her child, raises him/her and provides him/her with love care and affection.
In legal sense the term parent has been defined in following points: A ‘parent’ may be a a).Either
natural mother or father of a child. b). Either adoptive father or adoptive mother of a child. c). A
child’s positive blood parent who has expressly acknowledged parenting. d). An individual or a
agency whose guardian has been established by a judicial decree. In English Law parental status
based on any criteria can be terminated by a judicial decree. In other words the status of parent
on a person can be terminated by legal proceedings. The concept of deducing who is a parent is a
very vast and subjective issue. In a legal sphere the classification of parents will help in deciding
legal cases and understanding the scope of percentage in better manner.

The concept of ‘Parental Responsibility’ is not defined in any family law statutes. The present
understanding of responsibilities and obligation of parents per se is what is socially and
culturally understood to be or is ordained by customary and religious practices. Where the law
does concern itself with the responsibilities and obligation of parents, it is mainly concerned with

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the custody and guardianship of children in case of broken marriages. The concept of (Parental
Responsibility) is not defined in any law statutes. The present understanding of responsibilities
and obligations of parents per se is what is socially and culturally understood to be or is ordained
by customary and religious practices. Where the law does concern itself with the responsibilities
and the obligations of the parents, it is mainly concerned with the custody and guardianship of
children in case of broken marriages. The closest welcome to the concept of parental
responsibility in that if guardianship and custody as provided for in the Guardians and Wards Act
1890, the Minority and Guardianship Act 1956, the Juvenile Justice (Care and Protection of
Children) Act 2000 and Muslim Personal Law. The term ‘custody’ as given in Section 25 of
ward of the Guardians and Wards to work in the best interest of the child guardian of the person
of a minor for custody (Lizanat), guardian of the property and guardian for purpose of marriage
in case of minor. Legal doctrine followed by the Courts in India is ‘best interest of child’
doctrine. In case of custody matters the three parameters should be rightly observed. These
parameters are ‘doctrine of welfare of child’, ‘doctrine of care and protection’ or on basis of the
evidence furnished by or on behalf of the child, if the child is grown one , or is capable of
submitting his/her evidence. It is nowhere seen that court has satisfied all three parameters.

SHARED PARENTAL RESPONSIBILITY.

Shared Parental Responsibility in most jurisdictions across the world is defined as a court
ordered relationship wherein both the parents retain all the parental rights and responsibilities
with respect to their minor child and in which both parents discuss the major decisions affecting
their child’s welfare jointly. The responsibility can vary from making day to day decision
regarding the child’s care, maintenance and welfare of taking decision, on question of religious
upbringing, discipline, financial, social, recreational and legal matters, school and educational
program, changes in social environment and non emergence, educational environment in making
future plans consistent with best interest of the child in custody matters the paramount
consideration has been welfare of the child. The existing laws on the Shared Parental
Responsibilities in India only cover separated divorced couples.

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NEED FOR LEGISLATING THE CONCEPT OF PARENTAL RESPONSIBILITY.

With the increase in urbanization, modernization and changes in society the divorce rate has
increased dramatically. With the increase in the sense of equality among the individuals financial
independence of women is now at par with men. Different from that of earlier times when
women has to stay within the four walls of the house now, society and its people has matured,
the situation is different now and women no longer seek to mean for financial support. The
concept of Parental Responsibility has acquired importance in this background and there is a
need to enact a proper legislation or need of amending the existing laws which are governing the
custody and guardianship matters to fill the vacuum created in the society and must provide new
norms towards Shared Parental Responsibility. In absence of social norms to care, protection and
shared responsibility for the children, law needs to interfere and protect the rights of the child
and determine the rights and responsibilities of the parent. In the light of present situation where
there is no extended family support for child care anymore; having a legal framework defining
the rules and the responsibilities of parents is essential to safeguard the welfare principle and the
interest of the children.

FRAGILE FAMILIES AND CHILD WELLBEING.

The topic is concerned with the question of why does the children who grow up under a single
parent and cohabiting families fare worse than children who grow up under intact households. It
has been found that there are few pathways which might influence child wellbeing such as
parental resources, parental relationship quality, parental mental health and father involvement.
Family stability and role of selection of different types of men and women into different family
types are also needed to be considered. Family instability seems to matter more than family
structure for cognitive and health outcomes, whereas growing up under single parent seems to
matter more than instability for behavior problems. Children who are raised by stable single or
cohabiting parents are at less risk than those raised by unstable single or cohabiting parents.
Certain policy reforms can improve the outcomes for children. The first way is to reduce the
share of children in fragile in families (for example reducing the rate of unwed births or
promoting family stability among unwed parents.). The second way is to address the pathways
that place such children at risk. The third is to address directly the risks these children face.

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Traditional families with two married parents tend to yield the best outcomes for the children.
The specific pathways by which growing up in traditional families lead to this advantages is still
being debated. The mechanism which is considered to underline the links between family
structure and child wellbeing includes parental resources, parental mental health and relationship
quality and father involvement.

NEED OF CHILD WELFARE.

The phrase ‘children rights’ is not definitive. These rights can only be broadly enunciated with
the help of Indian constitution and the Convention of the Right of the children relating to the
present situation. Indian constitution has given the status of person to a child hence all
fundamental rights are given to them, hence child rights may be limited but they cannot be
ignored or eliminated. Article 39(f)10 of the Indian constitution provides a responsibility on the
state to frame policies for safeguarding the interest and rights of the children. Article 15(3) and
Article 51.A (k)11 also voice the rights of the children. Under the Convention on the Rights of the
Children the primary obligation to safeguard the rights of the children is on parents and then on
state. The state authorities are empowered to take all possible measures to ensure protection of
child against all forms of discrimination due to status of parents and family. The most relevant
Article which pertains to separated parents provides for the best interest of the children to be
taken into consideration while deciding the residence of the child. Further both parents are
responsible for the development of child and for necessary assistance. Thus broad varieties of
rights are present to ensure the welfare of child.

The paper analyzes the traumatic experience faced by children by the divorce of their parents. It
is distressing and stressful for a child who is facing a situation in which his family is
disintegrating and is sensing vulnerability. It is a situation where family rips apart and so does
the child both emotionally and psychologically. However, long term effects are determined by

10
Indian Constitution, art. 39 (f) –The state shall in particular, direct its policy towards securing that children are
given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against moral and material abandonment.

11
Indian Constitution, art. 51 A(k)- It shall be duty of every citizen of India, who is a parent or guardian to provide
opportunities for education to his child or, as the case may be toward between age of 6 to 14 years.

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the behavior on the part of the parents, which determine good adjustment for children, whose
parents are going through divorce. It is an extremely disturbing experience for everyone
including the children depending upon the age or maturity level. In India family is considered as
first line of defense; however it serves as a source of stability, when family is ripping apart.
Divorce raise the need of definitive articulation of child’s right in the present context and the
manner in which they must be represented in a judicial proceeding. Divorce is extremely
distressing for the child. Child is going through a harsh and tough situation a he is attempting to
be accepted by a conservative society. In social and economical attainments it has been revealed
through a study that children, who face their parent divorce, have lower educational prospects
than children from intact homes. According to a report about 35% of children of divorced parents
live in poverty.12 Child support payments and financial assistance when not paid put much
pressure on the custodial parent. Wealth affects the lives of the children as it paves the ways for
positive opportunities and lowers down the likelihood of negative traumas like improper
education facilities, serious illness without proper medical care etc.

Even though children are not directly involved in the divorce proceedings, it is important to note
that children are affected and interested parties in a divorce action.

THE BEST INTEREST OF CHILD ‘RULE’.

State courts also have suffered from ignorance poor draining, and, on occasion bias in deciding
Indian child custody disputes. The ‘best interest of the child’ standard, widely used in custody
determinations, relies heavily on subjective judicial conclusions about child welfare. Many
observers have blamed frequency of Indian child removals in part on procedural irregularities of
state procedures. The key operational definitions in the Indian Child Welfare Act are ‘custody of
child proceedings’ and ‘Indian child’. These two phrases determine the general state of the Act’s
safeguards. Under the act, a ‘child custody proceedings’ maybe either a foster care placement, a
predoptive placement, on adoption, or a termination of potential rights. The scope of Indian child
welfare act is further restricted by its definition of ‘Indian child’. An Indian child is defined
under the act as “any unmarried person under age of 18 years” who is either (a) a member of
12
NAESP, Staff report, One Parent Families and their Children, 60 Principle 31, 33(1980) at 31.

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Indian tribe or (b) is eligible for membership on an Indian Tribe and is a biological child of a
member of a Indian Tribe.

IMPLICATION FOR CHILD WELFARE AND PROTECTION POLICY

Despite the clear strong infringement on a child’s interest implicit on divorce, the present system
of laws does not consider children as affected parties except in the matters involving custody.
There is no special legislation to treat children on a larger platform and to seek their individual
interest and to accord them a special status. There is a huge need for such rights which will work
in a combined effect for the welfare of the child. These rights must include that parents must be
jointly and severally liable for care and maintenance of their child and to establish a stable home
for the child close to the pre-divorce standard of living. Such situation requires specific
articulation of child rights. It should be further noticed that the policy of mediation should be
employed rather than use of solicitors because mediation is seen as more effective way of
reducing hostility encouraging cooperation. The difference lies in recognizing autonomous ‘child
rights’ rather than just ‘rights to be protected’. Many of the problems are still not considered by
the Indian Child Welfare Act protection because they do not involve child custody proceedings
or Indian children as definition in the act.

In questioning that dependency is a satisfactory justification for paternalistic decision making,

the alternative paradigm of childhood challenges child protection policy makers to give direct
voice to children. By giving a chance to raise the voice and to address their concern by
themselves, giving voice to children will involve altering adult institutionalized way of behaving
to accommodate the difference inherent in contribution of children. There is a need to broaden
child protection policy not just to those children who are traditionally highlighted. There is a
need of developing child protection strategies that acknowledge and reinforce children’s own
strategies, so that they would be about talking openly with children on issue of straight and
thinking in terms of oppression rather than vulnerability and liberation rather than protection.
Child protection practices would be about joining with children in a struggle to augment their
safeguarding and proactive option and to transform the social and political world of the society
into a society in which the institution of childhood exists.

REFERENCES:
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1. Frusternberg, F & C.W Nord. “Parenting Apart: Pattern of Child Rearing after Marital
Disruptions.” Journal of Marriage and the Family, vol.47, pp.893-904(1995).
2. Desai, M. “Towards Family Policy Research.” Indian Journal of Social Work, pp.225-
231 (1995).
3. Balancing Children Rights Into Divorce Decision, 13 Vermont Law Review, 531(1989).
4. Waldfogel, Jane & Terry-Ann Craige(2010). Fragile Families and Child Wellbeing.
20(2), 87-112.
5. “Lawyering the Child: Principle of Representation in Custody and Visitation Dispute
Arising from Divorce.” Yale Law Journal, vol.87, pp 1126-1190
6. www.Manupatrafast.com.
7. www.scconline.com

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