TABLE OF CONTENTS

PREFACE i-ii ACKNOWLEDGEMENT iii-iv ABBREVIATIONS v-ix LIST ·oFT ABLES X LIST OF CASES
xi-xvii CHAPTER-I INTRODUCTION 1-8 1.1 Introduc on 1 1.2 Scope of the Study 8 1.3 Review
of Literature 9 1.4 Objec ves of the Study 15 1.5 Hypotheses 15 1.6 Research Methodology
and Sources of Data 16 1.7 Limita ons of the Study 17 1.8 Plan of the Thesis 17 CHAPTER-II
FAMILY AS A SOCIAL INSTITUTION: STRUCTURAL AND FUNCTIONAL CHANGES 19-44 2.1
Introduc on 19 2.2 Family as a Social Ins tu on 21 2.2.1 Towards forma on of the Concept
of Family: The Ini al Phase 22 2.2.2 Emergence of Agrarian Society and Reshaping of the
Family Ins tu ons 23 2.2.3 Racial and Ethnic Stra fica on 24 2.2.4 Influence of Chris anity 31
2.2.5 Nuclear Family and the Sex Roles Paradigm 33 2.2.6 Post-Industrialism: Changes in the
Ins tu on of Family 34 2.3 Family Structures and Wellbeing of Children 36 2.4 Indian Family
System: The Debate as to Tradi onal v/s Modem Families 37 2.5 Conclusion 39 CHAPTER-III
THE INSTITUTION OF MARRIAGEA CONCEPTUAL ANALYSIS 45-78 3.1 Introduc on 45 3.2
'Marriage' Defined 46 3.3 Theories of Marriage 48 ' 3.3.1 Symbolic Interac on Theory 48
3.3.2" Social Exchange Theory 49 3.3.3 Structural Func onalism Theory 49 3.3.4 Conflict
Theory 50 3.4 Concept of Marriage: Global Scenario 50 3.4.1 Concept of Marriage in the
Western Sphere 50 3.4.2 Concept of Marriage in the Asian and African Spheres 54 3.5 The
Na onal Percep ons 56 3.5.1 Under Hindu Tradi on 56 3.5.2 Marriage under Islam 59 3.5.3
Ins tu on of Marriage under Chris anity 62 3.5.4 Ins tu on of Marriage under Parsi Law 65
3.5.5 Ins tu on of Marriage under Jewish law 66 2.6. Conclusion 67 CHAPTER-IV DIVORCE-
CAUSES, DESIRABILITY AND PERMISSIBILITY 79-114 4.1 Introduc on 79 4.2 Concept of Divorce
79 4.3 Factors Responsible for Divorce 80 4.4 Hindu Law on Divorce 85 4.4.1 Hindu Law on
Maintenance 89 4.5 Muslim Law on Divorce 92 4.5.1 Muslim law on Maintenance 98 4.6
Chris an Law on Divorce 101 4.6.1 Chris an Law on Maintenance 104 4.7 Parsi Law on Divorce
105 4.7.1 Parsi Law on Maintenance 105 4.8 Divorce under the Secular Law 106 4;9 Conclusion
106 CHAPTER-V CONSEQUENCES OF DIVORCE 115-146 5.1 Introduc on 115 5.2 General
Consequences 116 5.3 Impact of Parental Breakdown on Children 120 5.4 Effect of Divorce-
Cri cal Areas 128 5.4.1 Social and Emo onal Func oning in Childhood 128 5.4.2 Educa on
and Socio-Economic Outcomes in Adulthood 128 5.4.3 Physical Health and Development in
Childhood and Adulthood 129 5.4.4 Mental Health and Wellbeing in Adolescence and
Adulthood 130 5.4.5 Family and In mate Rela onships in Adolescence and Adulthood 132
5.4.6 Economic Func oning 134 5.5 Conclusion 135 CHAPTER- VI 'RIGHT TO FAMILY LIFE'-
PROTECTION UNDER INTERNATIONAL AND REGIONAL LEVELS 147-163 6.1 Introduc on 147
6.2 'Right to marry' and 'Right to family life' dis nguished 147 6.3 Interna onal Conven ons
147 6.3.1 Universal Declara on of Human Rights, 1948 148 6.3.2 Interna onal Covenant on
Civil and Poli cal Rights, 1966 149 6.3.3 Interna onal Covenant on Economic, Social and
Cultural Rights, 1966 150 6.3.4 Conven on on the Rights of the Child, 1989 150 6.4 Regional
Arrangements 156 .· 6.4.1 European Conven on on Human Rights, 1950 157 6.4.2 European
Social Charter, 1961 158 6.4.3 American Conven on on Human Rights, 1969 158 6.4.4 African
Charter on Human and People's Rights, 1981 158 6.5 Conclusion 159 CHAPTER- VII
PROTECTION OF 'FAMILY LIFE' OF CHILDRENCOMPARATIVE PERSPECTIVE 164-224 7.1
Introduc on 164 7.2 The Polish Law 165 7.3 The Law in Bri sh Virgin Islands 172 7.4 The
Australian Law 173 7.5 Law of the People's Republic of China 175 7.6 The Japanese Child
Support Law 179 7. 7 Family Law in Israel 182 7.8 The Law in the United States 187 7.9 The
Law in England and Wales 192 7.10 Law in Canada 195 7.11 The French Law 198 7.12 South
African Jurisprudence 199 7.13 The Law in Netherlands 202 7.14 Posi on in Thailand 203 7.15
Law in Singapore 204 7.16 The Law in Kenya 207 7.17 Conclusion 208 CHAPTER- VIII LEGAL
PROTECTION OF CHILDREN- THE POST-DIVORCE SCENARIO IN INDIA 225-267 8.1 Introduc on
225 8.2 Child Rights vis-a-vis Parental Rights 226 8.3 Custody and Guardianship -Indian Legal
Framework 228 8.3.1 The Guardians and Wards Act, 1890 228 8.3.2 Hindu Minority and
Guardianship Act, 1956 229 8.3.3 Hindu Marriage Act, 1955 231 8.3.4 Islamic Law 231 8.3.5
Parsi and Chris an Law 231 8.3.6 Statutory Provisions v. Best Interest of Child Judicial Trends
233 8.3.7 'Best Interest' of Child: Decisive Factors 238 8.3.8 Child Custody - Specific Issues 239
8.3.9 The Concept of Joint Custody 241 8.4 Post-divorce Maintenance Law 244 8.4.1 Provisions
under the Secular Law 244 8.4.2 Provisions under the Hindu Law 246 8.4.3 Muslim Law of
Maintenance of Children 250 8.4.4 Maintenance under Parsi Law 252 8.4.5 Maintenance
under Chris an Law 252 8.5 Illegi macy of Children 252 8.5.1 The Islamic Law 254 8.5.2 The
Hindu Law 256 8.5.3 The Parsi and Chris an Law 259 8.5.4 The Secular Law 260 8.6 Conclusion
260 CHAPTER-IX EMPIRICAL STUDY 268-286 9.1 Introduc on 268 9.2 Scheme of Empirical
Study 268 9.3 Objec ves of the Empirical Study 268 9.4 Methodology Adopted 269 9.5
Distribu on of Respondents 270 9.6 Analysis of data collected from court records 272 9.7
Analysis of Disposal Records at Family Courts 276 9.8 Major Findings 277 9.8.1 Divorce and
Custody cases are increasing at an alarming rate 277 9.8.2 Impact on children is beyond
explana on 278 9.8.3 Family is the back bone ins tu on for the care and protec on of child
279 9.8.4 Tradi onal family concept is healthier for child 280 9.8.5 Rights of Children remain
dead le er 281 9.8.6 Neglect by Judiciary 282 9.8.7 Neglect by Parents 284 9.8.8 Lack of
Effec ve Counselling and Infrastructure 285 9.8.9 Delay Tac cs and Unethical Advocacy 286
9.9 Major Findings- Summary 286 CHAPTER-X CONCLUSION AND RECOMMENDATIONS 287-
322 Conclusions 287 Recommenda ons 317 BIBLIOGRAPHY 323-364 APPENDICES Appendix I
Ques onnaire for Parents/ Grand Parents Appendix II Ques onnaire for Children Appendix III
Ques onnaire for Judicial Officers Appendix IV Ques onnaire for Academicians/ Counsellors
Appendix V Interview Schedule

PREFACE
Marriage is a man-made ins tu on based upon various considera ons. The primary goal of
marriage is preserva on of human race. Any society not dedicated to the social purposes of
marriage is likely to ex nct. Success of marriage depends upon the harmonious and happy
rela on between the spouses. Unhappy marriages not only affect the spouses, but also the
innocent children of such par es. The idea of doing research on the rights of divorced children
was conceived as there was a need for research in this area because children being the
na onal assets and divorce on increase causes irreparable harm to children involved in it. An
individual's right to have his established family life respected, and to have and maintain family
rela onships form part and parcel of almost all interna onal and regional human rights-
instruments. The right to family life predominantly refers to an individual's right to create and
maintain his family rela onships. This right is of great importance as far as a child is concerned,
but this right of the child is being violated when their parent divorce. A child for the full and
harmonious development of his or her personality should grow up in a family atmosphere, in
atmosphere of happiness, love and understanding. The main aim of the -study suggest ways
and means to reduce the impact a divorce will have on the rights of children. Study is focussed
on how to reduce the impact of divorce on the rights of children and to· suggest ways to
consider the welfare principle while taking decisions affec ng children. Various provisions of
the statutes which safeguard the rights of spouses and children are discussed. The decisions
of the High Courts and Supreme Court have been discussed. The researcher has tried to deal
with the subject in a simple language. A empts have been made to avoid errors, but
perfec on is the providence of Almighty. When marital conflict escalates, the nega ve impact
on children is pervasive and persistent. Divorce causes irreparable harm to the children
involved in it. The hardships faced by children consequent to divorce is the subject ma er of
this study. The researcher has put in certain sugges ons in her study to handle the situa on.

ACKNOWLEDGEMENT
I offer myself to God Almighty without whose blessings I would not have achieved anything in
my life. I have felt his presence throughout my life and especially in my research work. The
study was carried out under the guidance of Dr R. Ravi Kumar, Professor, Centre for Advanced
Legal Research and Studies. It was his scholarly guidance that made this work possible. I take
this opportunity to place on record my gra tude and indebtedness to him for his constant
encouragement shown throughout this study. I would like to thank Dr Narayanan Nair,
Director, Centre for Advanced Legal Research and Studies for the support rendered by him. I
would like to thank my colleagues, Assistant Professors of Law, Mr. Saji Kumar N.L. and Dr
Hameem for providing their valuable sugges ons during each stage of my work. I offer my
special thanks to Dr K.C. Sunny, Dean, Kerala University; Dr Bismi Gopalakrishnan and Dr
Sindhu Thulasidharan, Department of Law, University of Kerala. My thanks are due to
Advocate Nagarajan and Dr Lakshmi Nair without whose coopera on my study would have
been difficult to complete. I thank Parvathi Shaji, Saji Sivan and Navya for their mely
assistance given to me in course of this effort. I remember my friend and colleague Asst. Prof.
Saleena at this me for her inspira on. I offer my thanks to former Principals Government Law
College Thiruvananthapuram- Dr A. Prasanna, Dr A. Saroja, Dr K.R. Raghunathan and current
Principal Dr Biju Kumar for their support. I acknowledge the help rendered towards my
empirical research by- Honourable Family Court Judge, Sri. P.D.S former Family Court Judge,
Sri. E.M. Muhammed Ibrahim; · and Family Court Staff, Thiruvananthapuram. iii I appreciate
all my respondents who shared with me their personal experience which was helpful in
materializing this study. I thank my typist Sri. Rajesh for the sincere and du ful care he has
taken for digi zing my efforts. I offer my thanks to the staff of Government Law College
Thiruvananthapuram and Centre for Advanced Legal Studies and Research. I also thank my
fellow colleagues, students and all my friends for their mely help and encouragement. I
would like to men on my gra tude towards Shri. G. Anil Kumar, Associate Professor, Kerala
Law Academy Law College and Ms. Beena, Kerala University for their mely help. I express
special thanks to my loving husband E. Baiju and family members, Roshni, Allen, Sooraj and
my father in law Sri. Ebenezer; without their support this endeavour would not have bore
fruit.

ABBREVIATIONS
Appeal Case Anno Domini All India Reporters Andhra Pradesh Law Digest Allahabad Allahabad
Law Times Andhra Pradesh Bombay Law Review Bombay Bombay Law Reports Civil Appeal
Calcu a Weekly Notes The Children Act Canadian Dollar Child & Family Court Advisory &
Support Service Calcu a Child Arrangement Orders Custody Cases The Civil Code Commercial
and Civil Code of Thailand Children and Families Act Commonwealth Knowledge Network v
CLRA CMS CPA CR Cr. PC CRC Cri LJ Cri Mise CRLJ CRP CSA DC DCC Del. DMC EC ECHR ECLJ ed.
Eds. EHRR EU EWCACiv EWHC FGC Children's Law Reform Act Child Maintenance Service Civil
Partnership Act Clinical Records Criminal Procedure Code Conven on on the Rights of the
Child Criminal Law Journal Criminal Miscellaneous Chha sgarh Law Journal Cons tu on of
the Republic ofPoland Child Support Agency District of Columbia Dutch Civil Code Delhi
Divorce and Matrimonial Cases European Commission European Conven on on Human Rights
European Centre for Law and Jus ce Edited Editors European Human Rights Reports European
Union England and Wales High Court Civil England and Wales High Court Family and
Guardianship Code vi FLA FLR GLR GWA HAMA HSA HCJ HIV/AIDS HLR HMA HMGA ICCPR
ICESCR I’d. ILCS ILR IVF Ker. L.J Ker. KLT L.R. Lahore Mad Family Law Act Family Law Reports
Gujarat Law Review Guardian and Wards Act Hindu Adop on and Maintenance Act Hindu
Succession Act High Court of Jus ce Human Immunodeficiency Virus Infec on and Acquired
Immune Deficiency Syndrome Haryana Law Review Hindu Marriage Act Hindu Minority and
Guardianship Act Interna onal Covenant on Civil and Poli cal Rights Interna onal Covenant
on Economic, Social and Cultural Rights Ibidem Illinois Compiled Statutes Indian Law Reports
In Vitro Fer liza on Kerala Law Journal Kerala Kerala Law Times Law Reports Lahore Madras
vii MCA MCP MH. L.J MP Mys. NGO Pat. PCCP PMDA RSC sic sec SCJ Sec. SGCA SGDC SGHCF
SLR STis TLB Trav. LR U.N.T.S u’s UDHR UK Ministry of Corporate Affairs. Magistrate's Code of
Procedure Maharashtra Law Journal Madhya Pradesh Mysore Non Governmental
Organiza on. Patna Polish Code of Civil Procedure Parsi Marriage and Divorce Act Revised
Statutes of Canada Supreme Court Supreme Court Cases Supreme Court Journal Sec on
Singapore Court of Appeal Singapore District Court Singapore High Court Singapore Law
Reporter Sexually Transmi ed Infec ons The Living Bible Travancore Law Review United
Na ons Treaty Series United States Universal Declara on of Human Rights United Kingdom
viii UKHL UN USA WLR WR United Kingdom House of Lords United Na ons United States of
America Weeldy Law Reports Weekly Reports
 LIST OF TABLES

LIST OF CASES

1. A v. B, ILR (1896) 21 Born 77 ............................................................. 98

2. A. G. Ramachandran v. Syconia Bibi, AIR 1977 Mad. 182 ............ 256
3. Ahmed Kasim v. Khatoon Bibi (1932) 59 Cal. 833, 141 I.C. 869 (33) A. C. 27
........................................................................................................ 96
4. Airey v. Ireland (Applica on No. 6289/73, Judgment of9 October 1979)
............................................................. 160
5. Amardeep Singh v. Harveen Kaur, 2017 (9) JT 106 ........................... 108
6. Amitav. Rathore, (2000) 1 HLR 588 ..................................................... 87
7. Ammini Joseph v. Union of India, AIR 1995 Ker. 252 ............... 102, 103
8. Amriyhamal v. Vallimangal Ammal AIR 1942 Mad 693 ...................... 56
9. Andrzej Piotrowski v. Poland, No. 8923/12- Judgment dated 22"d November 2016
................................................................ 170 10. Anis Begum v. Mohammad Istafa, (1993) 55
APP 743;(1933) ILR 55 ALL 743
...................................................................................................... 60 11. Anonymous v.
Anonymous, 6802/04 (19 .12.2004) ............................. 183 12. Anonymous v. Anonymous,
9182/06 (10.4.2007) ................................ 184 13. Anonymous v. The Rabbinical Court of
Appeals, HCJ 7395/07 (21.1. 2008) .................................................................. 183 14. AQL
vAQM [2012] 1 SLR 840 .......................................................... 206 15. Ashish Ranjan V.
Anupama Tandon, (2010) 14 sec 247 ................... 234 16. Ashok Samjibhai Dharod v. Neeta
Ashok Dharod, (2001) II DMC 48 Born ..................................................................... 237 17.
Asraf Ali v. Ashad Ali, (1871)16 WR 260 (Cal.) ................................. 255 18. ATE v. ATD [2016]
SGCA 2 .............................................................. 205 19. Athar Hussain v. Sayed Siraj Ahamed,
AIR 2010 SC 1417 ............... 234 20. AZB v. AZC [2016] SGHCF 1
............................................................ 207 xi 21. Babiarz v. Poland, No.l955/10-Judgment
dated lOth January 2017 ........................................................... 170 22. Baindail v. Baindail
[1946] P (CA) 122· ...................................... 64 23. Baldeo v. Dhannaram, AIR 1927 Nag. 314
....................................... 241 24. Bavli v. High Rabbinical Court, et. al., Bagatz 1000/92, P.D( 2)
221 ......................................................................... 184 25. Belgian Linguis cs case (No. 2)
(1968) 1 EHRR 252 ........................ 157 26. Benjamin v. Benjamin, AIR 1926 Born. 169
........................................ 66 27. Berrehab v. The Netherlands, (311987/126/177; 10730/84)
ECHR 28 May 1988 .................................................................................................. 147 28.
Bhagat v. Bhagat, (1994) 1 SCC 337; AIR 1994 SC 710 ..................... 87 29. Bhagwa Singh v.
Parmeshwari Nandan Singh (1942) ILR 52 ............ 56 30. Bhagya Lakshmi v. Narayan Rao, AIR
1983 Mad 9· ........................... 237 31. Bharatha Matha v. R Vijaya Renganathan, AIR 2010 SC
2685 .......... 19 32. Bipin Chandra v. Prabhawa , AIR 1957 SC 176 ................................ 87 33.
Budhan v. Bahadur Khan, AIR 1942 Pesh 41 .................................... 241 34. C. A 353/62
Muhammad Alfakir v. A orney General of Israel, 18 P.D. 2() 200
.................................................................................................... 186 35. C.A 1880/97 Katan v
.Katan, 39 P.D.( 1) 215 .................................... 186 36. C.A. 411/76 Sher v. Sher, 32 P.D.(l) 449
........................................... 185 37. CA (Civil Appeal) 210/82 Gelbar v. Gelbar, 35 P.D.( 2)14,
Supreme Court of Israel ............................................................................................. 185 38.
Chandbi v. Bandesha (61) A.B. 121 .................................................... 96 39. Chandra Prabha v.
Prem Nath, AIR 1969 Del. 283 ........................... 241 40. Chandra v. Nanak, 1975 Del. 175
...................................................... 247 41. Charman (2007) EWCA Civ 1791..
................................................... 193 42. Chinboy v. Chinboy (Family Appeal2433/04)
................................... 187 43. Cooper-Hahn v. Hohn [2014] EWHC 4122 (Fam)
............................. l93 xii 44. CXv. CY [2005] 3 SLR 690 ..............................................................
206 45. D. Velusamy v. D. Patchaiammal, AIR 2011 SC 476 ........................... 19 46. Dalton v.
Clanton, Del.Supr. 559 A.2d 1197, 1202-09 (1989) ........... 131 47. Dania! La fi v. Union of India,
2001 (7) SCC 740 ......... : .................. 100 48. Dastane v. Dastane, AIR 1970 Born 312
............................................. 87 49. David Sasson Ezekiel v. NajiaNoori Ruben, 33 BLR 725
..................... 66 50. Dev Ram Bilve V. Induma , (2000) 10 sec 540 ·································· ·87
51. Devinder Singh Natula v. Meenakshi Nangia, AIR 2012 SC 2890 ..... 108 52. EM (Lebanon)
(FC) v. Secretary of State for the Home Department, [2008] UKHL 64, [2008] 3 W.L.R. 931
........................................................ 157 53. F. v. Switzerland, no. 11329/85
................................................ 171 54. Findlay v. Findlay, BVIHMT 2006/0070 (ECSC HC, Nov.
13, 2009) ................................................................ 172 55. Furzund Hussain v. Janu Bibi, (1878)
4 Cal 588 .................................. 80 56. Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42
....................... 234 57. Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228 ............. 229
58. Goode v. Goode (2006) Fam. CA. 1346 ............................................. 173 · 59. Goodridge v.
Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003) .... 51 60. Gopal v. Sitharamma, AIR 1965
SC 1970 ......................................... 248 61. Hederson v. Heders'on, AIR 1970 Mad 104
......................................... 87 62. HG v. CG, 2010 3 SA 352 (ECP)
....................................................... 202 63. Homeshwar Singh v Smt. Misra Singh, AIR 2007
Chh. 27 ................... 87 64. Hyde v. Hyde [1866] 1 P&D 130
......................................................... 64 65. Indra Sarma v. V.K V Sarma, 2013(l5) SCC 755
................................ 19 66. Ish war Singh v. Hukam Kumar, AIR 1965 All. 464 .............................
80 67. Jacob Mathew v. Maya Philip, AIR 1999 Ker. 192 ............................ 239 68. Jamshed Irani
v. Banu Irani, 1967 Mh.L.J. 33 ..................................... 66 xiii 69. Jigneshkumar Dilipbhai Patel
v. Principal Senior Civil Court, 2014 (1) GLR 556
............................................................................................ 108 70. Johnston et al. v. Ireland,
(INSC)ECHR 17 ................................. 160, 171 71. Johnston v. Ireland, (9697/82) ECHR 18
........................................... 147 72. Jorden Deigndeh v. Chopra, AIR 1985 SC 935
................................. 103 73. Joubert v. Joubert, 2008 JOL 2192
.................................................... 201 74. Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee
Nandy, AIR 2017 SC 2383 .................................................................................................... 91
75. Kim Chun Ahe v. Ng SiewKee [2002] SGDC 276 ............................... 207 76. KM Vinaya v. B
Srinivas, MFA No. 1729/2011 ................................ 242 77. Kumar V. Jahgirdar v. Chethana
Ramatheertha, AIR 2004 SC 1525;2004 (1) HLR SC 468
................................................................. 236, 239, 240 78. L. Chandran v. Venkatalakshmi, AIR
1981 AP 1 ............................... 233 79. Lachman Utam Chand Kripalani v. Meena, AIR 1964 SC
40:66 Born. LR 297 ...................................................................................................... 87 80.
Laxmi v. Krishna, 1986 Mys. 228 ...................................... , ................ 247 81. Laxmikant Pandey
v. Union of India, AIR 1984 SC 469 .................... 268 82. Lekha v. P. Anil Kumar, 2007(1) ALT
35(SC) ................................... 239 83. Lini Mohan John v. Mohan John, 2001(1) Ker. L.J 809
...................... 87 84. Manisha Sandeep Gade v. Sandeep Vinayak Gade, AIR 2005 Born. 180
............................................................................. 87 85. Marckx v. Belgium, 2 EHRR. 330
.............................................. 147, 157 86. Mary v. Varghese,2008(4) KHC 374
................................................. 104 87. Matlji Lal v. Chandrama ,ILR (1911) 3 8 Cal 700
............................... 56 88. Mausami Ganguli V. JayantGanguli, (2008) 7 sec 673 ....................
233 89. Md. Jameel Ahmed Ansari v. Ishrath Sajeeda, AIR 1983 AP 106 ...... 234 90.
Meleparambil Shan @ Eliyamma v. Panakkachalilthamasikum Amba a Joy@ Mathew,
2000(1) Ker. L.J 754 ................................................ 103 xiv 91. Miller v. Miller [2006] 2 WLR
1288 .......................................... 172, 193 92. Molly Joseph v. George Sebas an, AIR 1997 SC
109 ....................... 103 93. Mt. Rahim Bibi v. Chirag Din, AIR 1930 Lah. 97 ..............................
256 94. Mumtaz Begum v. Mubarak Hussain, AIR 1986 MP 221 ................... 234 95.
Murarilalsidana v. Anita, AIR 2013 Raj. 100 .................................... 234 96. N C. Dass v. C.M
Dass, AIR 1982 MP 120 ........................................ 87 97. Nikhil Kumar v. Rupali Kumar,(2016)
.13 SCC 383 ........................... 108 98. Nithya Ananad Ragavan v. State ofNCT of Delhi, AIR 2017
SC 3137 ............................................................................ 234 99. Nova Sco a [A orney
General] v. Walsh, 2002 SCC 83 ..................... 51 100. Ghana v. Ghana (Family Appeal5750/03)
........................................ 187 101. Olsson v. Sweden, (10465/83) ECHR 24 March 1988
........................ 147 102. Padmaja Sharma v. Ratan La! Sharma, AIR 2000 SC 1398 ...............
236 103. PailyJoseph v. Union oflndia, 1988 (2) KLT 867 ............................ 233 104. Palani v.
Sethu, AIR 1929 Mad. 77 ................................................... 255 105. Palsing v. Jagir, 7 l.L.R.
Lahore 369 ................................................ 255 106. Parva v. Ganpat, 18 Born. 177
........................................................ 24 7 107. Patayee Ammal v. Manickam, AIR 1967 Mad. 254
.............................. 87 108. Praga Varghese v. Syryl George Varghese, AIR 1997 Born. 349 .....
102 109. Pre y v. UK, [2002] ECHR 423 (29 April 2002) ....................... 171 110. Priyanka
Chawla v. Amith Chawla, 2016(3) SCC 126 ....................... 108 111. Pun noose v. Koruthu Maria,
10 Trav. LR 95 ..................................... 23 3 112. Raanmoni Dedi v. Rajendranarain Singh ,(1944)
48 C.W.N. 698 ........ 56 113. Radha Bai v. Surindra K Mudaliar, AIR 1971 Mys. 61 .....................
241 114. Raj Kumar Gupta v. Barbara Gupta, AIR 1989 Cal. 165 ................... 241 115. Ram
Narain Gupta v. Rameshwari Gupta (1988) 4 SCC 247,253: AIR 1988 sc 2260
............................... : ...................................................... 88 116. Rasa/a v. Rasa/a, 1992 A.P. 234
........................................................ 258 XV 117. Re Kamal Rudra, 1LR (1949)2 Cal 3 7 4
.............................................. 241 118. Rina Roy v. Sa sh Chandra, AIR 1982 Cal. 138
.................................. 88 119. Rohini v. Narendra, (1972) 1 SCC 1: 1972 SCC (Cri) 1: AIR 1972
SC 459 .................................................................... ~ ........... 87 120. Rosy Jacob v. Jacob A
Chakramakkak, AIR 1973 SC 2090 ............... 237 121. Saiyed v. Anisa 1932 PC 25
................................................................. 96 122. Saji T Varghese v. State ofKerala, AIR 2011
Ker. 119 ...................... 108 123. Salema v. Sheikh, AIR 1973 MP 207
................................................... 96 124. Samuel Stephen Richard v. Stella Richard AIR 1955
Madras 451 ...... 239 125. Satyandra Nath v. B. Chakraborthy, AIR 1981 Cal 701 .....................
233 126. Saumya Ann Thomas v. Union oflndia,2010 (1) ILR Ker. 805 .......... 104 127. Savitri
Devi v. Ramesh Chan and Ors, 2003 Cri LJ 2759 ..................... 87 128. ShaikMoidin v. Kunhadevi,
AIR 1929 Mad. 33 ................................. 239 129. Shakil Usman Ansari v. Afsana Bano and
Ors.2017 CRLJ 834 .......... 100 130. Shamim Bano v. AsrafKhan, (2014) 12 SCC 636
.............................. 100 131. Shamima Farooqui v. Shahid Khan (2015) 5 SCC 705: (AIR 2015 SC
2025) ................................................................................................. 100 132. Shayara Bano v.
Union of India & Ors WP(C) No. 118 of2016 ......... 97 133. Sheikh Fazher v. Aisa (1929).8 Pat.
690 ............................................... 96 134. Shobha Rani v. Madhukar Reddi (1988) 1 SCC 105,
108: 1988 SCC (Cri) 60: AIR 1988 SC 128 .................................................................... 47, 87 135.
Shoharat v. Jafri Bibi, (1915) 17 Bom.LR13 ....................................... 60 136. Sibi Mohammad v.
Muhammad, (1926) 48 All. 625 ........................... 256 137. Siraj Mohmed Khan v. Hafizunnisa,
AIR 1981 SC 1972 ...................... 61 138. Smt. Prana Cha erjee v. Shri Goutam Cha erjee,
AIR 2006 Ca1196 ................................................................................ 87 139. Smt. Rekha v.
Harish Ramalingam, Cri Mise .No. 316/2012 ................ 87 140. Smt. Shantabai Alias Gouribai
v. Tarachand, AIR 1966 MP 8 ............ 87 xvi 141. Soon Peck Wah v. WoonCheChye [1997] 3
SLR(R) 430 .................... 207 142. Soora Beddi v. Cheema Reddy, AIR 1950 Mad 306
........................... 233 143. Suharabi v. D. Mohammed, AIR 1988 Ker 36 ...................................
234 144. Sura Reddy v. Chenna Reddy, AIR 1950 Mad.306 ............................. 240 145. Swapna
Ghosh v. Sadananada Ghos, AIR 1989 Ca,l. 1 ...................... 103 146. Swa Abhishek Binaykia
v. Abhishek Madanlal Binaykia, AIR 2016 SC 1730
.................................................................................................. 234 147. The Na onal Parents
Organiza on (Registered Society) v. The Ministry of Educa on, Culture and Sports et., AI HCJ
6914/06 (14.8. 2007) ........ 183 148. Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka.
AIR 1982 SC 1276 ................................................................ · .................................. 239 149.
Uday Gupta v. Aysha, 2014 KLT 476 .................................................. 19 150. Vegesina Venkata
Narasiah v. Chintalpa , AIR 1971 AP 134 ........... 233 151. Veliappa v. Natarajan, 58 I.A. 407
.................................................... 248 152. Venkatcharyalu v. Rangacharyalu (1840) 14 Mad.
816 ....................... 58 153. Villianatos and Others v. Greece, (29381/09 & 32684/09) [2013]
ECHR (7 November 2013) .................................................................................. 47 154.
Vilogeny v. High Rabbinical Court, Bagatz, 323/81, P.D. 36(2)733 ... 183 155. WajidAli Khan v.
Jafar Hussain, AIR 1932 Outh 34 ........................... 80 156. Winata v. Australia
............................................................................ 149 157. White (2000) 2 FLR 981
.................................................................... 193 158. Wong Phi/a Mae v. Shaw Harold [1991] 1
SLR(R) 680 ..................... 207 159. Wong Ser Wan v. Ng Cheong Ling [2006] 1 SLR(R) 416
................... 206 160. Y. Varalakshmi v. KantaDurga Prasad, (1989) 1 DMC 379 .............. 239
161. Youth Welfare Federa on v. Union of India, 1997(1) ALD 347 ......... 103

Chapter-! INTRODUCTION
1.1 Introduc on In the history of mankind, 'family' has been regarded as the most prominent
child care ins tu on where children are expected to develop fully. In Chris anity, family is
more sacred than the State and it is the nucleus of civiliza on. The Universal Declara on
of Human Rights (UDHR), 1948 has also recognized family as the 'natural and fundamental
unit of society.' The significance of families in maintaining social order and stability is
discernible from the following func ons: family teaches children to read, worship their
God, and care for each other in sickness and in old age. It is a workplace, a school, a
voca onal training agency and a place of worship; and it carries the heavy burden of
responsibility for maintaining social order and stability. As far as an individual is concerned,
family exists prior to his birth and survives his death; and while living, it con nuously
regulates his behaviour. This has been the pa ern in all organized socie es. Family as a
social ins tu on has emerged in response to basic human needs. Since ancient mes,
family has been the most important "child-care ins tu on" in India. In course of me,
many structural and func onal changes took place in the family system due to the
altera on of the basic social needs in tune with the change in the socio-economic
circumstances. Consequently, the tradi onal concept as well as the role of family have
undergone unprecedented change and have no universality at all. Live-in rela ons,
decriminaliza on of homosexuality, gay marriage, medical advancements including 'In
Vitro Fer liza on' (IVF) and assisted reproduc on have brought about a sea change in the
ins tu on of family: a shi from joint family s'ystem to nuclear family system; natural
reproduc on to ar ficial reproduc on; hetero- sexual unions to homosexual unions;
indissolubility of marriage to dissolubility of marriage, formal 1 marriage to living together
etc.; a ribu ng adverse impact on the family generally; and the children par cularly.
Nevertheless, family remains as one of the main socializing ins tu ons in the society. At
the same me, divorce con nues to be a life transi on that affects a substan al number
of adults and children each year. Only a few genera ons ago, divorce was rejected as
scandalous. Today, law, behaviour and culture embrace and even celebrate it. In addi on
to the impact that divorce can have on adults involved, the impact is augmented when
children are involved. A debate over how harmful divorce is to children has been raging
for several decades. Before divorce rates began climbing rapidly in the 1970s, it was
assumed that children from "broken" homes suffered serious emo onal harm. That view
changed as more divorce brought more research, most of it concluding that although
divorce did have some nega ve impact on children, they were worse off growing up in an
unhappy and conflict-ridden environment. Unhappily married couples were assured that
a divorce, handled civilly and with the children always foremost in everyone's thoughts,
would be the best solu on for everyone involved, including those children. There are
posi ve as well as nega ve results that come from divorce. One point frequently noted by
those who claim that children are indeed seriously harmed by divorce is that children from
divorced homes have more academic and behavioural problems than do children from
"intact" families. Another factor that the majority of researchers point out is that marital
conflict has serious nega ve effects that are being under es mated as the effects of
divorce are over es mated. Intense, overtly hos le parental conflict occurring frequently
within a marriage predicts childhood psychological problems more strongly than either
divorce itself or post-divorce conflict. A high degree of marital conflict undermines the
parent-child rela onship and impairs effec ve discipline, thereby indirectly affec ng child
development. When marital conflict escalates to violence between parents, the nega ve
impact on children is pervasive and persistent. 2 Divorce causes irreparable harm to all
involved, but rela vely greater in the case of children. Though it might be shown to benefit
some individuals in some individual cases, over all it causes a temporary decrease in an
individual's quality of life and puts some "on a downward trajectory from which they might
never fully recover." Unlike the experience of divorced former spouses, a child's suffering
does not reach its peak at the divorce and then level off. Rather, the effect of the parents'
divorce can be played and replayed throughout the next three decades of a child's life. For
instance, an Australian parliamentary study tracked children whose parents divorced in
1946, and tested them two and three decades later. Even a er three decades of divorce,
nega ve long-term repercussions get reflected in the income, health and behaviour of
many of the children. Some adults and children adjust rela vely quick to divorce; others
exhibit long-term deficits in func oning. Children's well-being over the long term is
determined by circumstances both prior to and a er their parents' divorce. Divorce has a
profound intergenera onal effect as well: one study demonstrates that parental divorce
has consequences for children and subsequent genera ons; and that "parental divorce
doubled the odds of divorce" in the child's own life. Of special note is the finding that
children of divorce are less likely to think they should support their parents in old age. The
major issue for researchers is no longer to learn what the ill effects of divorce are, but to
understand the extent of these effects on children and grandchildren and to iden fy ways
of reversing their intergenera onal cycle. In the context of socio-psycho implica ons of
divorce, many per nent ques ons crop up: What are the predic ve factors for nega ve
effects of divorce on children? Can divorce rates be minimized to restore the "perfect
family" image? What are the effects of divorce on the children trapped in the dissolu on
process? Do the hardships faced by children consequent to parental divorce translate into
adjustment problems? The legal implica ons of divorce also warrant immediate a en on
and detailed discussion: An individual's right to have his established family life 3 respected,
and to have and maintain family rela onships form part and parcel of almost all
interna onal human rights instruments. The rela onship between husband and wife,
unmarried partners, parents and children, siblings, and 'near rela ves' such as between
grandparents and grandchildren represent "family" as required under the right to family
life. The "existence of family life is, however a ques on of fact" which must be decided
subjec vely under each factual situa on. The 'right to family life' predominantly refers to
an individual's right to create and maintain his family rela onships. This right is of great
significance as far as a child is concerned. The family, being the fundamental group of
society and the natural environment for the growth and well-being of children, should be
afforded the necessary protec on and assistance. The child, for the full and harmonious
development of his or her personality, should grow up in a family environment, in an
atmosphere of happiness, love and understanding. The child should be fully prepared to
live an individual life in society. He should be brought up in the spirit of the ideals
proclaimed in the Charter of the United Na ons; and in par cular, in the spirit of peace,
dignity, tolerance, freedom, equality and solidarity. The United Na ons has been keen in
devising and incorpora ng key provisions m interna onal conven ons in order to
safeguard the interests of children. The major interna onal human rights instruments
contain specific provisions that directly or indirectly facilitate the 'right to family life' of
children. The Universal Declara on of Human Rights (UDHR),. 1948; the Interna onal
Covenant on Civil and Poli cal Rights (ICCPR),1966; the Interna onal Covenant on
Economic, Social and Cultural Rights (ICESCR), 1966 and the Conven on on the Rights of
the Child (CRC), 1989 underline that the best interests of children must be the primary
concern in making decisions that may affect them. At the regional level, the European
Conven on on Human Rights and the European Social Charter stand as founda onal
human rights instruments within Europe. The American Conven on on Human Rights is
yet another regional human rights treaty that similarly provides for the right to family life.
The protec on of the 4 family and vulnerable groups is specified under the African Charter
on Human and People's Rights, as well. Research studies which aim at providing a general
overview on the different prac ces of several European countries on the subject of
protec on of children's interests, shows that there are s ll very different concep ons of
children's protec on, varying from country to country; contrary to the medical world
where shared and common guidelines usually exist; and there is also a global inadequate
percep on of the importance of co-paren ng principle: in most cases, one of the parents
is originally marginalized as a consequence of judicial disposi on. An interven on of the
European Union (EU) ins tu ons aimed at guaranteeing the protec on of children's rights
and harmonizing exis ng good prac ces as would happen in medical science seems
therefore urgently needed. There is also a clear need for switching from a formal-legal
language to a scien fic language, which could be understood and applied by all Member
States as well as introduced into the relevant legal systems to avoid discrimina on based
on children's na onality. Usually, researches in this area turn out to be very complex due
to lack of official data in many countries. The European Commission (EC) itself admi ed
that it has actually no informa on and data about studies and best prac ces regarding
joint custody of children or/and co-paren ng. The EC also stated that the defini on of
''joint custody" is to be determined by na onal family law since it does not concern the
spectrum of competences of the European Union. It shall therefore be regulated according
to Member States na onal norma ve framework. This clarifies why there are s ll
remarkable differences among na onal legal systems regarding the defini on of the
concept of "joint custody" and its actual applica on in real situa ons. As far as India is
concerned, children are, in fact, "persons" under the Cons tu on of India who are en tled
to all fundamental rights. Further, the 5 Cons tu on directs: "The State shall direct its
policy towards secunng that children are given opportuni es and facili es to develop in a
healthy manner and in condi ons of freedom and dignity and that childhood and youth
are protected against exploita on and against moral and material abandonment." The
excep on clause under Ar cle 15(3) and Ar cle 51-A (k) dealing with fundamental du es
of Indian ci zens also voice the rights of the child. The Conven on on the Rights of the
Child (CRC) requires the State par es to take all appropriate measures to ensure that the
child is protected against all forms of discrimina on due to the status of parents or family.
This essen ally means that a child of divorcees shall not be discriminated anywhere and
anyhow. The Conven on further requires that the State par es shall ensure that a child
shall not be separated from his or her parents against their will, except when competent
authori es subject to judicial review determine, in accordance with applicable law and
procedures, that such separa on is necessary for the best interest of the child. Such
determina on may be necessary in a case such as one involving abuse or neglect of the
child by the parents, or one where the parents are living separately and a decision must
be made as to the child's place of residence. Moreover, both parents are responsible for
the development of the child and for the necessary assistance. Un l the la er half of the
20th century, judiciary a ributed a gender biased defini on for 'child's best interests.' In
England and the United States, fathers were given custody as children were the property
of the father. This rule had an economic basis: only men had access to resources to support
the child; and mothers who had no independent economic existence, were the property
of their husbands. By the end of the 19th century, this gender bias flipped. Now courts
developed the "tender years" doctrine; and presumed that the mother was to be the more
appropriate custodial parent for young children. Court decisions of the me referred the
transcendental importance of mother's love, something seen as more important than the
father's involvement with the child. 6 This judicial switch from father to mother reflects
the influence of contemporary thought on the importance of the mother-child bond in the
child's emo onal development. It also reflects the reali es of the increasing
industrializa on and division of labor within the family. Even then, some gender bias in
favor of father con nued. Fathers typically had superior economic resources, so boys of
teenage years could be placed with the father largely because he had the ability to support
the adolescent child and prepare him for an occupa on. Subsequently, the doctrine was
challenged by the large-scale entry of women into the work place. The influence of the
campaign to eradicate gender bias against women in the workplace had the opposite
effect in custody disputes. If mothers could not be denied access to jobs and economic
opportunity basis on gender, fathers could not be denied custody on the same basis. ·
Many States and courts began to move away from this doctrine and toward a more gender-
neutral decision process for custody, maintenance, visita on and other related aspects.
India, being signatory to almost all interna onal human rights instruments including the
CRC, has a duty to ensure these rights which are applicable in the case of children during
the parents' divorce. However, present Indian law does not consider children to be
'affected par es' except in the issues regarding custody: there is no special legisla on to
treat the rights of such children on a larger pla orm; and to accord them special status
and to treat them as different from others. In the absence of a uniform civil code in India,
the legal provisions rela ng to the maintenance of children are contained in the personal
laws (including statutory) of the various religious communi es; and in the Criminal
Procedure Code, 1973. There is, therefore, no uniformity in this ma er except to the
limited extent to which the provisions of the Criminal Procedure Code apply. Moreover, it
is evident from the analysis of the Indian case laws that the welfare principle has quite
o en not been properly appreciated or has been overlooked by the trial courts and the
mother has had to approach the higher courts at considerable cost of me and money.
Many cases do not reach the higher 7 courts for lack of resources and in these cases the
interest of the child suffers. Due to long legal ba les, the custody of the child remains with
a person with whom it should perhaps not remain. The right of the child to speedy trial is
also violated. Therefore, some of the cri cal areas warrant immediate legisla ve a en on:
custody, guardianship, maintenance illegi macy and adop on. The ques on as to how far
the trial courts in India are sensi zed to the rights of the child (i.e., child friendly), also
requires a detailed probe. An in-depth analysis of the exis ng legal regime in this regard
in different jurisdic ons, in a compara ve perspec ve, seems helpful to iden fy novel
concepts that could be incorporated in Indian law, with or without modifica ons. 1.2
Scope of the Study Today, there are many different types of families. Some include intact,
non-intact, single families, stepfamilies and a variety of others. Along with these different
varie es of families there is one common incident that can cause the family structure to
change. Divorce is an unplanned event in a family's life. It is something that affects each
member of a family at different mes and in different ways. Divorce is becoming a
common event in the lives of many people. It is now easier to dissolve marriage, and fewer
s gmas are a ached to divorced people. For many, divorce remains a nega ve and
trauma c experience. Not only do the divorcing couples suffer, but the children are
affected as well. In the past, concern has been focused on the problems of the parents,
but lately there has been a growing interest in the effects of divorce on children. A
generally accepted belief is that divorce produces nega ve consequences in the lives of
children as shown in their behaviour. Recently many studies have suggested that divorce
need not be a nega ve experience; at least to the degree most people feel it. Research in
the subject suggests that children of divorce may experience a variety of problems ranging
from psychological disturbances to diminished social rela onships, the type, severity and
persistence of these problems may be moderated by many factors. Some of the factors
researchers have iden fied include: child characteris cs, such as gender and age at the
me of divorce; 8 family characteris cs, such as socio-economic status of the custodial
household, race, and childrearing skills; and, situa onal characteris cs, such as parental
absence, length of me since marital dissolu on, conflict, support systems, divorce
proceedings, custody arrangements, remarriage, and environmental changes. Considering
the above-men oned issues, a comprehensive study is needed to understand the effects
of family breakup on children, assumes sociolegal significance. In India, very few studies
have been carried out to understand marital dissolu on. Consequently there is scanty of
literature available in India over the marriage dissolu on issues. Despite the s gma
a ached with divorce in Indian families, divorce rates are on rise. VariO\lS studies have
been carried out in other countries on causes and consequences of divorce. Many studies
have examined the link between parental divorce and subsequent wellbeing of children.
Therefore, it is essen al to study the recent changes in marriages pa ern and dissolu on
among the Indian couples, along with its impact upon children. 1.3 Review of Literature
Once the topic has been decided upon, it is essen al to review all relevant material which
has a bearing on the topic. In fact, review of literature begins with a search for a suitable
topic and con nues throughout the dura on of the research work. Since a research report
is supposed to be study aiming contribu on to knowledge, a careful check should be made
such that the proposed study has not previously carried out. The review aims at evalua ng
research studies done both in western countries and in India in the past few decades.
Numerous studies in the sociological literature in the west have examined and analyzed.
The study also examined the concept of divorce and its implica ons on family and society.
In India, considerable research on divorce has been documented, albeit on lesser scale
compared to the west. The main reasons for the limited number of empirical studies on
divorce in India were the lower divorce rates and lack of adequate data. It has been found
that various studies related to marriage, family and divorce have been conducted at
various periods of me. These studies, despite 9 offering vital insights into the subject,
circumscribed their scope to the demographic and causa ve factors of divorce; the impact
of divorce upon children, which a crucial issue in "divorce process", has not received
adequate a en on. The present study is concerned with family, mamage, divorce and
children. As a background, and to help in the analysis of data; the researcher examines the
family as an ins tu on, as well as changing a tudes toward divorce. The research
concerning possible nega ve behavioural changes in children due to divorce is central to
the present study. Li le is known about family organiza on before the beginning of wri en
history. The variety of familial structures found in earlier mes or among non-industrial
people provides many insights but does not men on about the origins of family. Since the
1970s, a significant amount of research has focused on the impact of divorce on children.
Research has shown that divorce can have both nega ve and long-term effects for
children. For example, research indicates that children of divorce struggle in areas related
to school behaviour, academic achievement, self-esteem, health, and interpersonal
rela onships. A study by Browning of delinquent and non-delinquent boys in Los Angeles
led him to the conclusion that "delinquents are as likely to come from homes where a
great deal of conflict exists but are structurally unbroken as they are from broken homes."
These results point to the fact that the nega ve impact of divorce upon children may be
no greater than would be the effects of parents con nuing to live together in an unhappy
marriage. Several studies have shown that unhappy unbroken homes may have more
deleterious effects upon children than do broken homes. The divorce itself is o en not the
most stressful part of the marriage. O en it has been preceded by years of turmoil and
hos lity. The divorce process in fact, is o en a relief to par cipants, an end to the conflicts
and confusion. Divorce can be processes that end unhappily. Divorce as an act o en
publicize of discussed because of personal and social reasons. 10 There has been an
overwhelming effort throughout history to protect marriage and to limit divorce. Religious
and social ins tu ons along with legal complica ons formed a combined barrier to
divorce. What may have been started by the church was con nued by the newspapers.
There has been a pervasive and posi ve image of marriage and a nega ve image of divorce
portrayed by the mass media. Even in the early twen eth century, public a tudes on
divorce were deeply affected by newspapers, magazines, and popular books. The state, a
silent partner to marriage, has been another opposing force of divorce. Un l recently,
chao c, and inconsistent divorce laws were widespread. Although divorce was permi ed,
it was surrounded by inhibi ng nega ve associa ons. More recently, marriage has been
viewed as "no longer a stable situa on held together by the consensus of a society that
sees the lifelong union of man and wife as a desirable ins tu on." It is apparent that
general societal a tudes are changing, becoming more accep ng of the ins tu on of
divorce. This may be observed by relaxing legal codes on divorce, or hearing the decrease
in public outcries at the rate of divorce. There seems to be a changing a tude that divorce
can be. a poten ally libera ng experience which restructures family life, and is not
necessarily detrimental to those involved. The number of divorces is rising every year.
Numerous reports have maintained that the broken family leads to a variety of problems,
including crime, delinquency, mental illness, and a heterogeneous mass of ills afflic ng
individuals and societal ins tu ons. However, others reflect reserva on about asser ons
that divorce per se is bad for children. One author state that it may be true that children
from happy marriages are be er adjusted than children from divorced homes. However,
children from divorced parents are happier than children coming from intact unhappy
homes. Menard's study presents parental divorce from the perspec ves of children who
have lived in either joint custody with equal me-share, or in the custody of their fathers.
The reported experiences are compared to those in the research conducted with children
who were in the custody of their 11 mothers. This study follows a qualita ve research
design. Interviews were informal using semi structured open-ended ques ons. Data was
analyzed following an emergent design based on the constant compara ve method. The
par cipants were between the ages of 13 and 23; their family life experiences were very
different with the one common factor being that their parents were divorced. The leading
researchers on the subject, Mark Cummings, and Patrick Davies, through their recent
trea se present important advances in understanding how growing up in a discordant
family affects child adjustment, the factors that make certain children more vulnerable
than others, and what can be done to help them. It presents a new conceptual framework
that draws on current knowledge about family processes; paren ng; a achment; and
children's emo onal, physiological, cogni ve, and behavioural development. Innova ve
research methods are explained and promising direc ons for clinical prac ce with children
and families are discussed. Alison Clarke-Stewart's Families Count: Effects on Child and
Adolescent Development is concerned with the ques on of how families ma er in young
people's development - a ques on of obvious interest and importance, which has serious
policy implica ons. A series of key cutTent topics concerning families is examined by the
top interna onal scholars in the field, including the key risks affec ng children, individual
differences in their resilience, links between families and peers, the connec ons between
parental work and children's family lives, the impact of childcare, divorce, and parental
separa on, grandparents, and new family f01ms such as lesbian and surrogate mother
families. The latest research findings are brought together with discussion of policy issues
raised. Ques ons about how children fare in divided families have become as perplexing
and urgent as they are common. In their landmark work on custody arrangements, the
developmental psychologist Eleanor Maccoby and the legal scholar Robert Mnookin
consider these ques ons and their ramifica ons for society. They followed a group of more
than one thousand families for three years 12 a er the parents filed for divorce. Their
findings show how different divorce agreements are reached, from uncontested dealings
to formal judicial rulings, and how various custody arrangements fare as me passes and
family circumstances change. Numerous examples of joint custody and father custody are
considered in this account, along with the mother-custody families more commonly
studied; and in most cases the point of view of both parents is presented. Among families
in which children spend me in both parental households, the authors iden fy three
different pa erns of co-paren ng: (i) co-opera ve; (ii) conflicted; and (iii) disengaged.
They find that although divorcing parents seldom engage in fom1al legal disputes, they
are generally unable to cooperate effec vely in raising their children. Unfortunately, most
of this research is primarily centred on parents' and teachers' accounts of the func oning
and adjustment of children a er experiencing parental divorce. Without having more
direct accounts from the children affected by divorce, the literature is deficient in
understanding the impact of divorce on children. Parental divorce can also have long-term
effects and may influence children's rela onship sa sfac on, trust, commitment in
in mate rela onships, and op mism. Star ng in the early six es, a great deal of research
has been conducted on the effects of marital disrup on on children and it is perhaps not
surprising that the social sciences have had more impact in this area of the law than in any
other. During the fi ies and six es, the dominant discourse in the literature constructed
the mother as vital to the child's wellbeing and this was associated with legal and policy
shi s that emphasized the 'tender years doctrine.' Beginning in the late seven es and
par cularly since the eigh es, however, a shi has occurred. The welfare of the child has
become the central and determining metaphor in family law and we are witnessing an
emphasis on the importance of the role of the father as an instrument of that welfare.
Moreover, rights to equality between parents have been used to bolster that role. There
has been an emphasis on consensual joint paren ng a er divorce and on agreement
rather than conflict between 13 parents. Fatherhood has achieved a new status and policy
shi s seek to maintain rela onships between men and children. Effec ve paren ng is
essen al for the proper growth of an individual, which will be lacking in a family where
parental, conflict is frequent. Through a review of the literature, the researcher a empts
to examine how one might best understand the concept of 'best interests of the child' by
examining studies which a empt to ease out the effects of marital disrup on on children.
Research gaps iden fied from the review are enumerated below: 1. There is paucity of
literature in India on the impact of divorce on children. ii. Most of the studies are
conducted either in rural or urban areas. iii. Most of the researchers interviewed only one
group. IV. In many of the researches, techniques and tools of data collec on were not
sa sfactory because in a delicate and intricate phenomenon like divorce personal
interview of the respondents should have taken to understand the reality in divorce-
issues. v. Most of the studies focused mainly on ins tu onalized approach of divorce like
age at marriage, polygamy, cause of divorce etc. Socio- psychological and legal aspects,
post-divorce situa ons, possibility of interven on to reduce the increasing divorce rate or
assis ng the be er se lement of the divorcees have not been given importance. vi. In
some of the studies the sample s1ze was very small to come to any realis c conclusion. In
view of the above research gaps, the researcher taking up all the gaps iden fied into
considera on has come up with a specific methodology which has been clearly and step
by step explained in Chapter IX of this research report, dealing with the empirical study.
14 1.4 Objec ves of the Study The broad objec ve of the study is to iden fy the overall
consequences of the family break up on the children. To fulfil this objec ve, the following
specific objec ves were iden fied: • To trace out the evolu on and relevance of family as
a social ins tu on; and to elicit out the changes that took place in the concept of family •
To probe into the causes of divorce; and its desirability and permissibility • To examine and
document behavioural changes in children consequent to divorce of their parents • To
inves gate whether enhanced social support boost up the morale and confidence level of
such children. • To ascertain whether the present Indian law is in tune with the
interna onal norms and Cons tu onal philosophy. • To compare the law in this regard in
different jurisdic ons, to ascertain whether the present Indian law lags behind such laws.
• To examine the feasibility of the enactment of a uniform legisla on in India, as in many
advanced countries. 1.5 Hypotheses The present study has been preceded with the
following hypotheses: • The unprecedented change that took place in the concept of
family sha ered the founda ons of the society. • Marital conflict and divorce have serious
nega ve effects upon the children. • The present family law in India is incompa ble with
the Cons tu onal philosophy in general. • The Indian law lags behind the interna onal
norms. 15 • The judicial a tude in India is not effec ve in protec ng the rights of children.
• The proceedings m the family courts cannot be regarded as "childfriendly." • Compared
to the legal posi on and social status of children under various legal systems, legal
protec on in India is dismal. • Discrimina on, oppression and subordina on against the
'li le' ci zens of India remain the hallmark of personal laws. 1.6 Research Methodology
and Sources of Data Use of appropriate methods and techniques are sine qua non for a
scien fic enquiry. In addi on to doctrinal research, a compara ve analysis of the concept
of family and its working in different legal systems has become inevitable. With the
objec ve of arriving concrete solu ons, the researcher employed historical, analy cal,
compara ve, cri cal and sta s cal methods. In the absence of rigorous theore cal and
empirical work on the subject, the researcher approached the task through a set of
deliberate steps: Firstly, the researcher contextualized the work within the broader
academic literature on the subject. Bri sh and American literature on this topic is relevant,
because Indian courts have o en looked into Anglo-American jurisprudence in the ma ers
pertaining to children. Scholars from other jurisdic ons have also contributed. Secondly,
the researcher has focused the interna onal norms, Indian cons tu onal philosophy,
statutory provisions and the judicial trend in this regard. A compara ve research has also
been undertaken to analyze the legal posi on and status of children under other legal
systems. The researcher examined the present status of children in India in the light of
Dharmasastras, authori es on Muslim, Jewish and Roman law, interna onal instruments,
Cons tu ons of countries, works of eminent scholars and various statutes enacted by vast
majority of countries to protect the interest of children affected by parental divorce,
Finally, based on the major findings of the empirical study, the researcher offer 16
recommenda ons that could put an end to the present debacle that could help to reduce
the adverse impact of divorce on children. The primary and secondary sources include
interna onal instruments, Cons tu ons, Statutes, Law Commission Reports, reports of
various commi ees, judicial pronouncements, text books, research ar cles from reputed
na onal and interna onal journals; and from websites. 1. 7 Limita ons of the Study One
of the major limita ons- of the present study is that Muslim law is en rely based upon
customary principles, which is different for Sunnis and Shias that cannot be easily
ascertained and codified. Moreover, non-availability of authen c sta s cal data on the
subject in India and hesita on on the part of some of the respondents to co-operate
rendered the empirical study difficult. 1.8 Plan of the Thesis The en re thesis is spread out
in ten chapters. Chapter I is introductory. The scope and objec ves of the study, review of
the literature, limita ons of the study, hypotheses, research methodology, sources of data
etc. are specified there in. Chapter II tled "Family as a Social Ins tu on: Structural and
Func onal Changes" describes the theore cal framework of family; and a empts to
provide insight into the structural and func onal changes which took place within the
family system prevailing in India. Chapter III tled "The Ins tu on of Marriage - A
Conceptual Analysis" a empts to analyze the meaning of marriage; the nature and
concept of marriage under different personal laws in India (Hindu, Muslim, Chris an, Parsi
and Jewish); various theories rela ng to marriage; and the transforma ons that took place
in the concept of marriage. Chapter IV tled "Divorce - Causes, Desirability and
Permissibility" examine in details, the concept of divorce; factors causing divorce; and the
grounds on which divorce is permi ed under different personal laws in India. Chapter V
focuses on various "consequences of divorce." Under Chapter VI 17 tled "Right to Family
Life"- Protec on under Interna onal and Regional Levels," provisions under various
interna onal and regional conven ons are cri cally analyzed. The legal posi onlsta:tus of
children under various legal systems forms the subject ma er of Chapter VII tled
"Protec on of 'Family Life' of Children- Compara ve Perspec ve."This Chapter a empts
to analyze the legal regiine in this regard in different jurisdic ons, in a compara ve
perspec ve. This exercise is done to iden fy novel concepts that could be incorporated in
Indian law, with or without modifica ons. The socio-legal implica ons of the present
Indian law rela ng to children affected by parental divorce, together with the judicial trend
are cri cally evaluated under Chapter VIII tled "Legal Protec on of Children- The Post
Divorce Scenario in India."ln the absence of a uniform civil code in India, the posi on of
children under various personal laws- Hindu; Muslim, Chris an etc. are analyzed
separately under this chapter. Chapter IX incorporates the major findings of the empirical
study conducted by the researcher. Chapter X recapitulates conclusion and offer
sugges ons. 18

Chapter- II FAMILY AS A SOCIAL INSTITUTION: STRUCTURAL

AND FUNCTIONAL CHANGES
2.1 Introduc on The renowned sociologist, George Murdock has lucidly spelt out the
tradi onal concept of "family" thus: "Family is a social group characterized by common
residence, economic co-opera on and reproduc on. It contains adults of both sexes, at
least two of whom maintain a socially approved sexual rela onship and one or more
children own or adopted, of the sexually cohabi ng adults." 1 However, today this
defini on has undergone unprecedented change and has no universal applica on. Live-in
rela ons 2, decriminaliza on of homosexuality, gay marriage, medical advancements
including 'In Vitro Fer liza on' (IVF), assisted reproduc on etc., have brought about a sea
change in the ins tu on of family. Nevertheless, family remains as one of the main
socializing ins tu ons in the contemporary society. Since ancient mes, family has been
the most prominent child care ins tu on wherein children are expected to grow under
the glory of a family where a sa sfactory rearing of child is ensured. As far as Chris anity
is concerned, family is more sacred than the state, 3 and family is considered as the
nucleus of civiliza on.4 The Universal Declara on of Human Rights (UDHR), 1948 has also
recognized family as the natural and fundamental unit of society. 5 The family, in brief, is
characterized by cultural forms and prac ces which tend to keep opposite sexes in
permanent union and regulate their behaviour. These pa erns have been acquired by man
during social life and have been transmi ed across genera ons. In this process, the family
has been standardized, ins tu onalized; and thereby invested with a sense of propriety. 6
As far as an individual is concerned, family exists prior to his birth and survives his death;
and while living in this ins tu on con nuously regulates his 19 behaviour. This is a pa ern
which has been found in all organized socie es. The family as an associa on of sexually
cohabi ng adults with their off-springs is universal; though family appears in specific forms
in different socie es. For instance, a single pair of spouses with their own/adopted
children cons tutes a 'nuclear family.' A nuclear family consis ng of a pair of spouses with
such children has been the most widely distributed form being found across the world.7
Family, which is the basic unit of social structure, is not suscep ble to any precise
defini on. It varies across me, place and culture. How a society defines family and the
func ons it assigns to families are by no means constant. There has been great amount of
discussion the world over regarding nuclear family, which consists only of parents and
children. But the nuclear family is by no means universal. The majority of America's 73.7
million children under the age 18 live in families with two parents ( 69%) · according to
new sta s cs released on November 2016 from U.S Census Bureau. The second most
common family arrangement is children living with a single mother (23%). Between 1960
and 2016 the percentage of children living in families with two parents decreases from 88
to 69%. During 1960 to 2016 period, the percentage of children living only with their
mother nearly tripled from 8 to 23%; percentage of children living only with their father
increased from 1 to 4%; and the percentage of children not living with any parent
increased slightly from 3 to 4 %. All these data indicate that there is breaking down of
families affec ng children. 8 In pre-industrial socie es, the es of kinship bind the
individual both to the family of orienta on (into which he is born) and to the family of
procrea on (which he finds at marriage) and which o en includes his spouse's rela ves.
In the case of 'extended family,' the nuclear family may be extended through the
acquisi on of more than one spouse, or through the common residence of two or more
married couples and their children or of several genera ons connected in the male or
female line. 9 In some socie es there exist extended families instead of nuclear families.
This divergence in family types is further enhanced by the fact that in each society 20 the
family constantly undergoes changes as condi ons of life alter in the process of life. The
reason as to why a society possesses a form of family system rather than another is
ordinarily not capable of explana on. The culture, environment or history of a society can
be the reason. Families develop in response to basic human and societal needs. Its forms
get changed when needs are altered by change in circumstances. Families provide for self-
maintenance of each individual and survival of their growth by establishing stable
associa ons and keeping social order in their communi es. The social func ons of family
are numerous: it socializes children, provides emo onal and prac cal support for its
members and helps to regulate sexual ac vity and reproduc on. Its provides its members
with a social iden ty. However, a sudden and far reaching change in the family structure
and processes threatens its stability thereby weakening the society. Success of family is a
precondi on for the civiliza on to succeed. Stronger families are sine quo non for stronger
schools, stronger religious sects and stronger communi es with less poverty and less
crime. Thus, the family is the linchpin of society, both economically and socially. The
importance of family lies in bringing up the child to a fully developed man in the family
atmosphere. It is believed that the child is a gi of God and he should be nurtured with
care and affec on within the family and society. According to Confucius, strength of a
na on is derived from the integrity o omes. 10 A comfortable home is definitely a great
source of happiness. "It ranks immediately a er health and good conscience," as aptly
remarked by Bryon. 11 The purpose of the present chapter is to describe the theore cal
framework of family and to provide insight into the structural and func onal changes
which took place within the family system. 2.2 Family as a Social Ins tu on As said earlier,
family performs various social func ons which make their existence indispensable and
inevitable. The func ons which the family performs are fundamentally the same in all
socie es 12 irrespec ve of the structural differences that exists between different types
of families. The main characteris c 21 .t:'. f.t:'. ·1 · 1 d · z· 13 · Zb · 14z· ·t d · 15 1eatures o
1arm y me u e umversa zty, emotwna aszs, zmz e szze, 'fi orma . ve m . ifluence, 16 nuc l
. . . . I t 17 "b"l"ty if b 18 d ear posztwn m socza structure, response z o mem ers an . I l t"
19 socza regu a wn. With passage of me, socie es grow and become more complex and
stra fied. Together with this, the nature and quality of life among families become
differen ated based on varying economies and the posi on of the family within the
economic system?° Families of some form or the other existed and con nue to exist in all
socie es as social ins tu ons and perhaps as old as mankind. Marriage, on the other
hand, is a more recent ins tu on. Since hun ng and gathering socie es existed for
millennia, it is quite likely that some form of marriage, or at least temporary partnering
between women and men, emerged in the early versions of these socie es. In foraging
socie es, however, marriage as a stable partnership between men and women probably
took a backseat to family es. Indeed, it was membership in the family that best ensured
physical and economic survival.21 2.2.1 Towards forma on o he Concept of Family: The
Ini al Phase Early foraging socie es predated the discovery of agriculture. All members of
the group- men, women, and children- were expected to contribute to the produc on of
food. In subsistence economies, suppor ng non-producers o en threatened the survival
of the group. The size of popula on was restricted predominantly by means of abor on
and infan cide; and some mes even by the abandonment of the elderly. Many of the
scholars believe that a rela ve degree of social equality existed in foraging socie es mainly
because most of them lacked surplus resources, the concept of private property, 22 or the
knowledge of biological patemity.23 Marriages or male-female partnering was generally
informal, easily dissolved, and secondary to kinship es. There was li le emphasis on
female virginity, paternity, or lifelong unions. Hence there was no real incen ve for men
to dominate women. 24 Nomadic hun ng and gathering socie es were some mes 22
matrilocal. Polyandry was allowed as a marital rule: women could take several husbands;
and the children retained the clan name of their mothers. Polyandrous marriage and
matrilocal families were found in Hawaii and na ve popula ons in America, Southeast Asia
and West Africa.Z5 Un l recent decades, it was a common tendency among social
scien sts studying families in the cross-cultural context to u lize a development paradigm
which saw all families as evolving from the simple, primi ve en es that existed in
foraging socie es to the modem en es that emerged with industrializa on.Z6 This
perspec ve s ll holds sway in some circles wherein the developmental paradigm is laden
with ethnocentric assump ons because it contends that the diverse family forms found
among non-Europeans are proof that they are spiritually or morally depraved.Z7 The
premise that the earliest economies, such as those based on hun ng and gathering, are
invariably evolved into modem economies is erroneous. Economies based mostly on
hun ng and gathering s ll exist today, with levels of technology and cultural prac ces that
are diverse and have changed over me. Many of such socie es are no longer nomadic,
and they have gained considerable control over their environments and created complex
poli cal, social, and kinship systems. 2.2.2. Emergence of Agrarian Society and Reshaping
of the Family Ins tu ons Inequali es were prevalent in simple hun ng and gathering
socie es. Economic inequali es between people began to emerge 9,000- 12,000 years ago
in the Middle East, when the cul va on of plants led to the development of agrarian
economies, based on farming and land ownership. The crea on of agrarian economies
marked the advent of civiliza on. It can be defined as se led socie es that became
increasingly complex as for instance, based on wri en law and on hierarchal rela onships
between people.Z8 With plant cul va on and the domes ca on of animals turning into a
major, and o en scien fic, enterprise, small-scale agrarian economies paved the way for
larger agricultural economies. The concept of personal ownership of labor and other
natural resources, 23 inheritance rights, the rise of serf and slave labor to plant and
harvest crops, and the crea on of poli cal and economic laws to protect wealth came into
existence with such economies?9 Se led economies led to popula on growth, surplus
produc on, and specialized occupa ons and ins tu ons. All of this created the basis for a
hierarchy among people based on wealth and status. The number of occupa ons
increased among those in agrarian and agricultural economies. The most basic divisions
were basically between two polarized groups: governing elites and peasants, landowners
and the l~ndless or aristocra c/royal elites and the masses. 30 Warfare and standing
armies also emerged with agrarian and later large-scale agricultural economies, and
became a significant tool for subordina ng and stra fying popula ons. Social divisions
between people in medieval Europe were o en reflected in estate systems of
stra fica on. An individual's legal status, rights and privileges were derived from family of
birth. With the advent of agricultural opera ons, the ins tu on of family started ge ng
gradually reshaped. For example, the right to own land and pass it on to heirs meant that
childbearing abili es of women and domina on of males became more important. During
the middle ages, economic factors influenced marital choices more than affec on, even
among the poor. Women's sexuality was treated as a form of property.31 Inequali es with
regard to wealth and power meant that marriages among the elite and/or governing
classes were based largely on crea ng poli cal alliances and producing male children. 32
Ensuring paternity became important in transferring property to legi mate heirs. Rights
and sexuality of women were circumscribed through marriage. Ideologies of male
domina on prevailed, and women, especially those who were married to powerful men,
were typically treated like cha el and provided only very few rights.33 2.2.3. Racial and
Ethnic Stra fica on The concept of race and racial stra fica on systems also emerged with
agricultural socie es. Surplus produc on and expansionist tendencies created an almost
insa able demand for raw materials, labour and new markets. The 24 development of
agricultural economies bought with it brutal forms of cha el, slavery and colonialism. For
instance, by the tenth century some Middle Eastern na ons had ins tuted a race-based
slavery notably by trafficking black Africans. By the 151 h century, Europeans evolved a
pa ern of interna onal travel and trade that exploited and colonized people of color in
India, Asia, Africa and South America. They were later used as both cheap labor and
markets for Western products. 34 Through colonialist policies, Europeans gained control
over the economies m many less developed na ons including India, thereby placing
themselves in posi ons of power and endowing a handful of locals- usually those who
were willing to embrace Western behaviours- with power over other members of the
na ve popula on. 35 In the process, Whites were socially construed as a racial category.
The most basic division which came into existence was that between white and non-white,
or European and non-European.36 Europeans' contact with people of color on other
con nents - many of whom lacked sophis cated technologies and weapons and had not
been exposed to Chris anity - fostered ethnocentric a tudes among Europeans, most
held themselves and their culture to be naturally superior. Their ethnocentric a tudes
provided the ra onale for exploi ng people of colour, who were o en seen as less than
human. These views were reinforced during the 191 h century by the studies in social
science that placed the European ideal of monogamy and nuclear families at the apex of
civiliza on and assumed that all other families were "primi ve" or lacking development.
37 This racial division resulted in nega ve and even puni ve images of most non-
Europeans, which in tum were seen as having backward and primi ve cultures, and such
images jus fied excluding them from enlightenment doctrines of natural rights, ra onality
and freedom. 38 The Europeans who began to se le in the Bri sh colonies of North
America in the 161 h century came in pursuit of greater economic opportunity and
religious freedom. They brought with them an implicit faith in the rec tude of their own
cultural heritage. By the mid of 161 h century the acceptance of social inequali es was
part of that heritage, and the class system that emerged. During 25 the seventeenth and
early eighteenth centuries, more than half of the colonists came as servants, many of them
forced into exile from Europe in its effort to rid itself of rogues and vagabonds. Colonial
society was not democra c and certainly not egalitarian. It was dominated by men who
had enough money to make others work for them. Populist resentment against the
wealthy and elite, which o en led to rebellions and riots, was common, and by the 18th
century, poor houses were being created to quell the unrest. 39 Although there was some
amount of racial and ethnic diversity in the early colonial popula on, the majority of three
million white Europeans who came to the colonies from the early 16th century un l 1790
were from England. They set the tone for poli cal and cultural life in the New World. Many
who le Englandespecially the Puritans who migrated voluntarily- were fleeing from a
place where industrializa on and moderniza on was in its early stages and producing
unprecedented economic and social changes. One of their goals was to pursue tradi onal
or old-world ideas about marriages and families that were on the decline in England. They
not only wanted to create godly families, but also wanted to extend the rights and benefits
of marriage to more people (e.g., certain groups of people in England could not marry or
inherit property).40 Many rejected the rising status of women that had emerged with the
industrial economy in England, because of the view that married women owed their
husbands loyalty and obedience. Thus, in early America, husband had nearly absolute
authority over his wife including the right to administer physical correc on".41 In the New
World, patriarchal ideologies were mi gated by the fact that produc ve and reproduc ve
labor of women was in great demand. Women played an important role in establishing
the American colonies and endured immense hardships in helping their husbands build
and furnish homes and provide for families.42Since men were more likely to immigrate
and women had a high rate of maternal mortality, shortage of women increased the value
of women. The familybased economy of the agricultural era required the labor of all able-
bodied family 26 members. It is here that the women played an essen al role in the
survival of families. The func ons of families during that era have been described as
follows: "The family raised the food and made most of the clothing and furniture for early
se lers. It taught children to read, worship their God, and care for each other in sickness
and in old age. It was a workplace, a school, a voca onal training agency and a place of
worship; and it carried the heavy burden of responsibility for maintaining social order and
stability." 43 Thus, the role of family in maintaining social order and stability was felt as an
important func on. Marriage was o en considered an economic partnership between
men and women, formed primarily to ensure that the material needs of families were
supplied. This extended the type of work women were able to perform. In fact, some
scholars have held that colonial women could perform any kind of work they wanted to as
long as it was acceptable to their husbands and was understood as helping the family. 44
As the colonial popula on grew, the rigidity of patriarchal rules in families varied regionally
and weakened over me. It was especially compromised as the economy transi oned
from agriculture to industry. Women in urban areas typically had more freedom than
those in rural areas. Unmarried females had more freedom than married women.
Patriarchal rules also influenced the lives of children in colonial period because fathers
were the sole guardians of their children and determined their educa on, religious
training and marriages. The prevailing childrearing philosophy, at least among Chris ans,
was that parents needed to rid children of their innately sinful nature. Hence, severe
discipline was common; and the laws in most eastern colonies supported the penalty of
death for unruly and obs nate 27 children.45 This has raised the ques on of status of
children not just in colonial America, but historically. Some historians have traced a long
history of abuse and - neglect of children in many socie es and have argued that parents
were not emo onally a ached to their children. Children were o en seen as economic
burdens or economic assets, and in the la er case, they were expected to work and
contribute to the support of families. 46 In colonial America, there was the view that
children were innately sinful. The high rate of childhood mortality had created an
emo onal distance between parents and children. As Coltrane and Adams explain, before
the 20th century, more than half of all parents had lost at least one child, and childhood
death did not usually result in long periods of grieving.47 Other scholars have contended
that parents have always loved and valued their children, although this pa ern of parent-
child rela onship may have been more evident in some regions and me periods than
others. By the 19th century, European visitors to America observed that parents were
overly permissive and failed to properly discipline their children.48 Social class and
regional differences probably resulted in differences in how parents reared their children.
The pa erns of childrearing also changed over me as the economy became more
industrialized. Parents who did not rely on children to contribute to the support of the
family were likely to be more emo onally indulgent and less strict than those who did. As
early as in the 15th century, European explorers had contact with na ve popula ons in
various parts of the world, o en in the context of trade. The decision to se le in areas
occupied by na ve popula ons, posed a new set of challenges. This is because it brought
compe on for land and natural resources and exposed groups to immense cultural
differences. Europeans defined basic morality largely in terms of their understanding of
proper family rela ons. Yet they found themselves in a land inhabited by as many as two
million na ve peoples, or Na ve Americans, who did not embrace those values. Na ve
Americans had ·lived in North America for centuries before the arrival of 28 Europeans
and were organized in tribes that were extremely diverse: they spoke at least 200 different
languages and had followed a variety of cultural prac ces.49 Many of these prac ces
deviated from European concepts of Chris an morality or proper gender rela ons. Na ve
American tribes had a variety of family systems. They o en married during early
adolescence, some mes without ceremony, and many prac ced polygamies. Among quite
a few tribes, descent was traced through mothers, and women were producers who
owned property and held high-status posi ons. 50 Despite their view of Na ve Americans
as deficient, whites maintained that it was possible to civilize the tribes by spreading
Chris anity and the virtues of European culture. Efforts were made to convince Na ve
Americans to accept monogamous marriage, a conven onal sexual division of labor, the
concepts of private property and inheritance. 51 Many Na ve Americans complied with
these efforts, while others who were engaged in warfare resisted, and eventually were
decimated. 52 During the early 17th century, Africans were already beginning to arrive in
the New World, some as indentured servants. Indentured servitude for Africans, however,
was gradually transformed into perpetual servitude, or a system of slavery based on race
and heredity. Winant argues that the investment in slaves was the first and largest capital
investment of the era, and slavery was the "motor" of early capitalist
development.53Enslaved blacks brought with them a variety of family prac ces from pre-
colonial West African socie es. Some of these prac ces paralleled those found in the New
World (e.g., patriarchal ideology, economically produc ve roles for women, high rates of
fer lity) and others which were different (e.g., polygamy, early sexuality and marriage,
extended kin rela ons). Slavery priori zed the labor roles of Africans over their family
roles and, in the process, reinforcing African family prac ces that did not resonate with
Chris an or mainstream American values. Indeed, many aboli onists argued that the
worst abuse of slavery was its "outrage upon the families" of black people and accused
Southern slaveholders of breeding slaves like oxen and of maintaining "black harems" of
sexually exploited black women. 54 29 Slavery inherently undermined the ability of
Africans to form stable families: this was because slaves were considered as property; and
the slave owners could treat them and sell them as they saw fit. The family life of slaves
varied over the dura on of slavery and from region to region. The size of the planta on
and the economic solvency of slaveholders shaped the stability of family life. Overall,
slaveholders owning smaller, more economically marginal planta ons offered a limited
supply of poten al partners for marriage. As Mintzand Kellogg explains, most of slave
owners in the South had fewer than 20 slaves, most of them related to each ·other. 55 In
addi on, slaveholders with only a few slaves w.ere more likely to have to sell slaves.
Separate families were more likely to engage in sexual liaisons with enslaved blacks. Even
when enslaved families achieved stability, marriages tended to be more difficult to enter
into and sustain. During the early decades of slavery, a skewed sex ra o- considerably
more men than women- made it impossible for all men to find marital partners. But even
on larger planta ons, at least one-third of husbands had wives who lived elsewhere and
were o en restricted to weekend visits. 56 When it came to create stable marriages and
families, enslaved Africans in Northern areas o en did not fare much be er. Northern
slaveholders usually owned fewer slaves. By 1790, half of them owned only one slave. 5 7
This scarcity of blacks was compounded by the fact that many Northern slaveholders
preferred to own enslaved women who were single and childless, or at least whose
children were living elsewhere. This culminated in lower rate of marriage among black
women. Equally important in undermining marriage was the fact that slave marriages had
no legal sanc on, and couples could be separated or sold at the discre on of slaveholders.
58 Even when marriages existed, the property status of blacks and the arduous labor
demanded of men and women made it impossible for them to create families that adhered
to mainstream values. Enslaved Africans accepted the ideology of patriarchal families,
even though it was difficult for men to achieve authority in their families. When they lived
on other planta ons, they had li le 30 control over their wives and children. They could
not protect them from the abuses of slavery. Like men, enslaved women were defined first
and foremost as laborers. They typically found extended kin networks a more reliable
source of help. Most enslaved black women worked in the fields and counted on others to
watch their children. Those who were domes c workers garnered a certain social status
from their close associa on with white families, and usually such workers were women.
This further undermined male domina on among enslaved Africans and elevated the
status of black women who performed domes c work. They o en had access to be er
food, which they shared with other family members, and were privy to vital informa on
about events and issues. 59 As women were more likely than men to be free, a significant
number of free blacks lived in single-mother families. Studying the family life of free blacks
who lived in Norfolk, Virginia, prior to aboli on of slavery, Bogger reported that families
were almost equally likely to be headed by men as women, although this may have been
because free men commonly le the area in search of work. Those who stayed held a
variety of occupa ons and, with a bounty of women to choose from, o en had wives who
were much younger than they were. These families performed the same func ons as other
colonial families, with the added responsibility of helping friends and family members gain
their freedom.60 2.2.4 Influence of Chris anity The growing emphasis on formal marriage
contracts and patriarchy was reinforced in Western socie es by the influence of
Chris anity and the law. Chris anity· was ini ally seen as a sect of Judaism. But with the
conversion of Emperor Constan ne in AD 313, it became the established religion and rose
to dominate European social life for centuries.61 Chris anity may have helped foster
monogamy. But it dis nguished itself from its forbearer, Judaism; by breaking away from
Jewish tradi ons-which had celebrated married life, marital sexuality, and especially
procrea on-and provided a more circumspect view of marriage. Exposure of early
Chris ans to the overt sexuality and ero cism was common in Rome along with the
Apostle Paul's denuncia on of marriage. The 31 belief that the return of Jesus was
imminent led church leaders to eschew marriage and teach that celibacy was a higher and
more exalted way of life.62 For many, there was an inherent conflict between pursuing the
spirit and sa sfying the flesh, and marriage led to the la er. Marriage was allowed, but
commonly seen as a union created as the result of original sin. Thus, in most cases,
marriage ceremonies had to be held outside the church doors, and a sense of impurity
surrounded even marital sex and childbearing. 63 The marginaliza on of family life and
marriage by early Chris anity reinforced tradi ons that were unique to Western Europe
and enhanced the wealth of the Church. Bilateral kinship, consensual marriages,
singleness as a viable op on, and the nuclear family structure were common in Western
Europe even before the influence of Chris anity. This restricted sense of kinship helped
the Church become immensely wealthy. This was because its teachings discouraged
marriage and stated that Chris ans should put the needs of the Church before family
loyal es, and encouraged them to leave their property to the Church rather than to
rela ves.64 Around AD 1200, however, there was a reversal of this doctrine. Both Chris an
leaders and the State began to assume a larger role in defining and governing marriages.
Within a century they declared marriage a sacrament of the Chris an Church and an
indissoluble union. 65 Not all Chris ans accepted the no on of marriage as a sacrament,
which essen ally placed entering and dissolving marital unions under the control of the
Church. Protestan sm especially rejected this teaching. The numerous sects fostered drew
on the Bible to jus fy a variety of marriage prac ces, including polygamy. Over me,
however, mainstream Chris an teachings suppor ng monogamy, non-marital chas ty, and
marital fidelity were seen as strengthening the nuclear family. But it did li le to elevate
the posi on of women. 66 As the State and Church ini ated efforts to regulate marriage,
it became the core of the family. However, the debate over how one entered a legal
marriage con nued in most Western na ons through the early 20th century. People o en
32 rejected the idea of religious and State control over marriage. They simply ignored such
rules about licenses and ceremonies because they lived in remote areas that made it
difficult for them to avail themselves o ureaucra c procedures. The long tradi on of
informal marriages described as "self-marriages" or "living tally" con nued. It was
common for poor people to live as married without benefit of legal ceremony. 67 The
federal government had few ways to enforce its views on marriage, and state laws varied,
o en only specifying that marriages could not be bigamous, incestuous, or ·easily
terminated. 68 Thus, although States and religious authori es had been given the
authority to perform marriage ceremonies, there was ambiguity over exactly what
cons tuted a legal marriage. The most common basis for declaring marriages valid were
mutual consent, cohabita on, and sexual · consumma on of the rela onship, although
not these criteria had to be met for a legally recognized marriage to exist. The property-
like status of women was evident in Western socie es like Rome and Greece. In these
countries, wives were taken solely for bearing legi mate children and, in most cases, were
treated like dependents and confined to ac vi es such as caring for children, cooking, and
keeping house. 69 The focus on legalizing marriage and male domina on became common
among all classes. Among the less affluent}here was less property to transfer to legi mate
heirs, and patriarchy was mediated by the contribu ons of women to the family income.
2.2.5. Nuclear Family and the Sex Roles Paradigm Following the footsteps of early
anthropological studies, sociologists extended the logic of structural-func onalism to
family prac ces in industrial socie es. Drawing on Weber's concept of "elec ve affinity,"
Winllaim J. Goode saw a ri between the emergence of a worldwide market economy
requiring a socially and geographically mobile labor force and a family system organized
around an autonomous married couple freed from parental control and able to respond
to economic opportuni es. He called this "the conjugal family."70 Func onalists such as
Talco Parsons and Robert Bales focused on a process of "structural differen a on." Here,
the family specialized in emo onal 33 support and childhood socializa on as other tasks,
such as the produc on of goods and educa on of the young, moved from the home to the
factory and school. Parsons and his colleagues used a "sex roles" paradigm. 71 Husbands
contribute to a family's survival by performing "instrumental" func ons including earning
income. Wives specialize in the "expressive" func ons associated with rearing children
and mee ng their family's emo onal needs. These theories provided an influen al
framework for analyzing family life in industrial socie es, especially following the Second
World War. During this period, almost 60 percent of U.S. households consisted of a
married couple with a single (male) earner. Cri cs argued that the func onalist framework
prescribes how families should be organized rather than explaining the diverse ways that
modem families are organized. Feminist historians noted that the rise of the industrial
system did not predetermine gender differen a on, detailing how the ideology of
feminine domes city rose to jus fy rather than explain women's relega on to the private
sphere. Feminist economists examined how men's efforts to secure a "family wage" le
women segregated in occupa ons with lower pay and less job security.72 Some cri ques
rejected the argument that industrializa on inevitably required a family structure based
on a gender division between paid and unpaid work. They instead argued that the model
of separate spheres and priva zed nuclear families emerged from a protracted process of
poli cal and social struggle: 2.2.6. Post-Industrialism: Changes in the Ins tu on of Family
The last three decades of the 20th century witnessed interrelated worldwide trends
including rapid rise in women's employment, marital separa on, cohabita on, delayed
marriage, and single parenthood that undermined the hegemony of the two-parent,
gender differen ated household. As the 21st century arrived, alterna ve forms, such as
two-income couples, single-parent households, and unmarried single adults, out
numbered "tradi onal" families in the U.S. and most other affluent socie es. Rather than
sta c family types, today's families are increasingly fluid, with most households changing
their composi on and 34 organiza on over me. Indeed, the image of family pathways
may now provide a more useful way to understand family life than the no on of sta c
family types. 73 Growing family diversity has prompted analysts to ques on the empirical
accuracy of structural-func onal theories. "Family decline" theorists see tradi onal
marriage as ideal but argue that cultural forces stressing individualism have undermined
its viability and legi macy. 74 Ra onal choice and conflict theories emphasize the role of
self-interes ng family forma on and func oning. New home economics sees everyone as
a ra onal actor, but argues that men firid it ra onal to maximize their earnings by
specializing in market work. Although the ra onal ac on framework replaces a theory of
gendered personali es with a human capital approach, it reaches similar conclusions
about gender-based alloca on of family tasks. 75 Conflict theory, in contrast, sees the
domes c sphere as a site of conflic ng interests. Randall Collins argues that historical
changes in family structure reflect shi s in how social systems organize power and allocate
resources, especially along the axes of gender and age. In this framework, advanced
market socie es create condi ons for more equal forms of sexual exchange by limi ng
men's ability to impose their will through physical force and by enhancing women's access
to economic resources in the labor market.76 Feminists while focusing on inequality
within and between families have taken different posi ons about its causes and
consequences. Some accept gender differences in personality, but view these differences
as unnecessary and unjust. Even though gender asymmetry in paren ng creates a circular
process of gender differen a on, equal paren ng provides a healthier psychological
blueprint for everyone. 77 As post-industrialism has brought household diversity and
fluidity, ethnographers 78 and survey analysts 79 have shown how families defy the model
of an isolated nuclear household by construc ng networks of real and fic ve kin as
strategies of survival, especially in poor and working-class neighborhoods. 35 Others have
turned their a en on to show how social actors construct contemporary families in
response to constrained op ons. Social-construc onists argue that the family is a site
where people "do gender" through their interac ons.80 Others point to the ways that
post-industrial families exist in uneasy tension with other social ins tu ons, crea ng a
stalled revolu on, 81 in which priva zed caretaking and me demanding workplaces
conflict with the need to share and integrate work and family life. 82 The emergence of
new family forms and prac ces has undermined earlier frameworks and raised new
ques ons about the future of family pa erns throughout the world. 2.3. Family Structures
and Wellbeing of Children Throughout the industrialized world, the rise of divorce, out-of-
wedlock parenthood, and employment among mothers has changed the experience of
childhood. Children today are more likely to grow up in a home with two employed
parents, a single parent, or same-sex couples and experience a change in their family
composi on. These changes have fueled longstanding debates about the effects of
employed mothers or parental breakups on children. Despite concerns about children
whose mothers hold a paid job, decades of research show no demonstrable harm. Instead,
a mother's sa sfac on with work, the quality of child care, and the involvement of the
father and other caretakers ma er more for the well-being of the child. The effects of
growing up m a single-parent home or experiencing a parental breakup are more complex.
Children reared consistently by two parents appear to fare be er on a variety of measures.
But this difference shrinks significantly on parental conflicts. 83 Scholars trace most
nega ve consequences of parental separa on to a high level of conflict surrounding a
breakup and a loss of financial stability. Family process is more important than family form.
84 Since children are now likely to grow up in families that change as they grow to
adulthood, the key to their wellbeing is having financial security and emo onal support
regardless of the form a family takes at any point or the path it follows over me. 85 36
The process of making the transi on to adulthood has also changed. Events such as leaving
home, finishing school, ge ng a job, and marrying are more likely to take place at later
ages. The people used to decide who is and is not an adult now stress a person's ability to
support himself or herself rather than his or her marital or parental status. 86 These
changes have produced a new life stage that some call "emerging adulthood". 87 Yet
images of youth "failing to launch" do not capture the complex experiences of this life
stage. Studies show that new genera ons hope to find a lifelong partner and bear children
within an enduring rela onship. They also believe they need me to develop their own
iden es, find the right partner, and prepare for an uncertain future that requires more
educa on and training. 2.4. Indian Family System: The Debate as to Tradi onal v/s Modern
Families The Indian family has been considered to be a dominant ins tu on in the life of
the individual as well as in the life of the community. 88 For the Hindu family, extended
family and kinship es are of utmost importance. In India, families adhere to a patriarchal
ideology and follow the patrilineal rule of descent. These families are patrilocal, have
familiarity value orienta ons, and endorse tradi onal gender role preferences. The Indian
family is considered strong, stable, close, resilient, and enduring. 89 Historically, the
tradi onal, ideal, and desired family in India is the joint family. A joint family includes
kinsmen and includes three to four living genera ons, including uncles, aunts, nieces,
nephews, and grandparents living together in the same household. It is a group composed
of many family units living in separate rooms of the same house. These members eat the
food cooked at one hearth, share a common income, common property, are related to one
another through kinship es, and worship the same idols. The family supports the old;
take care of widows, never-married adults, and the disabled; assists during periods of
unemployment; and provides security and a sense of support and togethemess.90 The
joint family has always been the preferred family type in the 37 Indian culture, and most
Indians at some point in their lives have par cipated in joint family living. 91 Since me
immemorial the joint family has been one of the salient features of the Indian society. But
the twen eth century brought enormous changes in the family system. Changes in the
tradi onal family system have been so enormous that it is steadily on the wane from the
urban scene. There is no chance of reversal of this trend. In villages the size of joint family
has been substan ally reduced or is found in its fragmented form. Some have split into
several nuclear families; while others have taken the form of extended or stem families.
Extended family is in fact, a transitory phase between joint and nuclear family system. The
available data suggest that the joint family is on its way out in rural areas also.92 The joint
family or extended family in rural areas is surviving in its skeleton or nominal form as a
kinship group. The adults have migrated to ci es either to pursue higher educa on or to
secure more lucra ve jobs or to eke out their living outside their tradi onal callings. Many
of the urban households are really offshoots of rural extended or joint families. A joint
family in the na ve village is the fountain head of nuclear families in towns. These days in
most cases two brothers tend to form two independent households even within the same
city owing to the rising spirit of individualism, regardless of similarity in occupa on, even
when the ancestral property is not formally par oned. The nuclear family is now the
characteris c feature of the Indian society. According to the Census data, nuclear families
comprising of a single member or more than one-member households cons tuted 70
percent; and that without spouse comprised about 10 percent. The extended and joint
family households together claim merely 20 percent. This is the overall picture about the
en re country, whereas in the case of urban areas the propor on of nuclear family is
somewhat higher.93 38 2.5. Conclusion The reason as to why a society possesses a family
system is ordinarily not capable of explana on. The culture, environment or history of a
society can be the contribu ng factors. Families develop in response to basic societal
needs. Its forms get changed when needs are altered by change in circumstances.
However, the func ons which the family performs are fundamentally the same in all
socie es irrespec ve of the structural differences that exists between different types of
families. The last three decades of the 20th century witnessed interrelated worldwide
trends including rapid rise in women's employment, marital separa on, cohabita on,
delayed marriage, and single parenthood that undermined the hegemony of the two-
parent, gender differen ated household. As the 21st century arrived, alterna ve forms,
such as two-income couples, single-parent households, and unmarried single adults,
outnumbered "tradi onal" families in almost all affluent socie es. Rather than sta c
family types, today's families are increasingly fluid, with most households changing their
composi on and organiza on over me. In India, family is the most important ins tu on
that has survived through the ages. Like most of the less industrialized, tradi onal, eastern
socie es, India is a collec vist society that emphasizes family integrity, family loyalty, and
family unity. The Indian family has been a dominant ins tu on in the life of the individual
as well as the community. Extended family and kinship es are of utmost importance as
far as the Hindu family is concerned. The peculiar features of Indian families which adhere
to a patriarchal ideology include: patrilineal rule of descent, familiarity value orienta ons
and tradi onal gender role preferences. The Indian family is considered strong, stable,
close, resilient, and enduring. Historically, the tradi onal, ideal, and desired family in India
is the joint family. With the advent of urbaniza on and moderniza on, younger
genera ons are turning away from the joint family form. The modified extended family
has 39 replaced the tradi onal joint family, in that it does not demand geographical
proximity or occupa onal involvement and does not have a hierarchal authority structure.
This new family form encourages frequent visits; financial assistance; aid and support in
childcare and household chores; and involvement and par cipa on in life-cycle events
such as births, marriages, deaths, and fes val celebra ons. The familial and kinship bonds
are thus maintained and sustained. Even in the more modem and nuclear families in
contemporary India, many func onal extensions of the tradi onal joint family have been
retained, and the nuclear family is strongly embedded in the extended kinship matrix.
Despite the numerous changes and adapta ons to a pseudo-Western culture and a move
toward the nuclear family among the middle and upper classes, the modified extended
family is preferred and con nues to prevail in modem India. Family as a social ins tu on
has emerged in response to basic human needs. Since ancient mes family has been the
most important "child- care ins tu on in India. However, many structural and func onal
changes took place in the family system consequent to the altera on of the basic human
and social needs in tune with the change in the socio-economic circumstances. The
important among them are joint family system to nuclear family system; natural
reproduc on to ar ficial reproduc on; hetero- sexual unions to homo-sexual unions;
indissolubility of marriage to dissolubility of marriage, formal marriage to living together
and so on a ribu ng adverse impact on the no on of family generally; and the interest of
children par cularly. 2 4 George Murdock, Sociological Perspec ves in the Family; in
SOCIOLOGY: UNDERSTANDING AND CHANGING THE SOCIAL WORLD (Steve Barken ed.)
(2011). Uday Gupta v. Aysha, 2014 KLT 476; IndraSanna v. VK.V Sanna, 2013(15) SCC 755;
D. Velusamy v. D. Patchaiammal, AIR 2011 SC 476; Bharatha Matha v. R. Vijaya
Renganathan AIR 2010 SC 2685. POPE PIUS XI, 541 encyclical (1930). WILL AND ARIEL
DURANT, THE LESSONS OF HISTORY (2010). Ar cle 16 of UDHR, 1948- ( 1) Men and women
of full age, without any limita on due to race, na onality or religion, have the right to
marry and to found a family. They are en tled to equal rights as to marriage, during
marriage and at its dissolu on. (2) Marriage shall be entered into only with the free and
full consent of the intending spouses. (3) The family is the natural and fundamental group
unit of society and is en tled to protec on by society and the State. 40 6 7 9 10 II 12 13
14 15 16 17 IS 19 20 21 22 23 24 25 26 27 28 E. SILVA, TECHNOLOGY, CULTRE, FAMILY-
INFLUENCES ON HOME LIFE (2010). ARI BESAR, CLIFTON & TRUMAN, THE NUCEAR FAMILY
(2015). h p/www.census.gov/newsroom/press-release-20 16/cb.16-192.html visited on
19/09/2017. ERITC WIDMER, RITTA JALLINOJA, BEYOND THE NUCLEAR FAMILY: FAMILIES
IN A CONFIGURATIONAL PERSPECTIVE (2008). WALTER H. STOLE & GEORGE A,
CONFUCIANISM AND THE FAMILY (1998). BRYON GARRET, THE ABC'S OF LIFE (1998). The
func ons the family serve is same due to the following: (i) psychic unity of mankind all
over; (ii) limita on of human organism and (iii) habitat-imposed restric ons beyond which
family cannot go. There is no human society in which some form of the family does not
appear. The irresis ble sex need, the urge for reproduc on and the common economic
needs have contributed to this universality. The family is grounded in emo ons and
sen ments. It is based on our impulses of ma ng, procrea on, maternal devo on,
fraternal love and paternal care. It is built upon se lements of love, affec on, sympathy,
coopera on and friendship. The family is smaller in size. As a primary group its size is
necessarily limited. It is the smallest social unit. · The family welds an environment which
surrounds trains and educates the child. It shapes the personality and mould the character
of its members. It emo onally condi ons the child. The family is the nucleus of all other
social organiza ons. The whole social structure is built of family units. · The members of
the family have certain responsibili es, du es and obliga ons. Family is guarded both by
social taboos and by legal regula ons. Broadly speaking, social scien sts have iden fied
four major economies that have existed across the span of human history: hun ng and
gathering, agrarian/agricultural, modem/industrial, and service/knowledge-based
economies. All these economies s ll exist in various parts of the world, and na ons o en
have mixed economies. SHIRLEY A HILL, FAMILIES- A SOCIAL CLASS PERSPECTIVE 1 (20 12).
Private property is a legal designa on for the ownership of property by non-governmental
legal en es. Private property is dis nguishable from public property, which is owned by
a state en ty; and from collec ve (or coopera ve) property, which is owned by a group of
non-governmental en es. Private property is further dis nguished from personal
property, which refers to property for personal use and consump on. Private property is
a legal concept defined and enforced by a country's poli cal system. See also T.M. COOLEY,
PRINCIPLES OF CONSTITUTIONAL LAW 346 (1892); Ezra. Brown, Concept of Private
Property, 11 CORNELL LAW REVIEW 41,41-48 (1925). Paternity law refers to the legal
rela onship between a father and his biological or adopted children and deals with the
rights and obliga ons of both the father and the child to each other as well as to others.
A child's paternity may be relevant in rela on to issues of legi macy, inheritance and rights
to a puta ve father's tle or surname, as well as the biological father's rights to child
custody in the case of separa on or divorce and obliga ons for child support. See also
LEONARD SHALIN, SEX, TIME& POWER: HOW WOMEN'S SEXUALITY SHAPED HUMAN
EVOLUTION 250 (2003). COLTRANE AND ADAMS, GENDER AND FAMILIES 54 (2008).
GLASSMAN, SWATOS & DENISON, SOCIAL PROBLEMS IN GLOBAL PERSPECTIVE 81 (2004}.
LAMANNA, FAMILIES IN CONVERGING EUROPE: A COMPARISON OF FORUMS,
STRUCTURES AND IDEALS 51 (2002); see also ELAINE LEEDER, THE FAMILY IN GLOBAL
PERSPECTIVE: A GENEDERED JOURNETY 66 (2004). ARLAND THORNTON, THE FALLACY
AND ENDURING IMPACT OF THE DEVELOPMENT PARADIGM ON FAMILY LIFE 72 (2005).
Social hierarchy is an implicit or explicit rank order of individuals or groups with respect to
a valued social dimension. We use the words implicit and explicit to capture the range of
awareness that people have of the hierarchies in which they are embedded. Hierarchies
can 41 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 be
delineated by rules and consensually agreed upon, or they can be subjec vely understood
and taken for granted. We use the phrase rank order to indicate that at least one individual
or group must be subordinate to at least one other individual or group., See also BLAU, P.
M & SCOTT, W. R. FORMAL ORGANIZATIONS: A COMPARATIVE APPROACH (1962); Joe C
Magee, Social Hierarchy: The Self -Reinforcing Nature of Power and Status, 2 ACADEMY
OF MANAGEMENT ANNALS 3,1-79(2008). DANIEL W.ROSSIDES, SOCIAL STRATIFICATION
22-24 (1997). BENJAMIN P. BOWSER, THE BLACK MIDDLE CLASS: SOCIAL MOBILITY-AND
VULNERABILITY 108 (2007). Rather than kinship, marriage became the centre of family life
and was increasingly based on a formal contractual rela onship between men, women,
and their kinship groups. The property and gender implica ons of marriage are evident in
the exchange of gi s between spouses and families and clearly defined rules about the
rights and responsibili es of each marital partner. See also SCOTT COLTRANE AND
MICHELE ADAMS 54 (2008). COONTZ, STEPHANIE. MARRIAGE, A HISTORY: FROM
OBEDIENCE TO INTIMACY, OR HOW LOVE CONQUERED MARRIAGE. (NEW YORK: VIKING
PRESS) (2005). Several features of the family in the era of agriculture are worth no ng.
First, marriage was predominantly based on economic considera on rather than
emo onal ones. Marriage was necessary for survival, so finding a good mate was much
more akin to finding a good work partner than anything else. Second, the household was
run by the husband. There existed no real dis nc on between market and household
produc on, because even crops that were sold on the market were produced by the
household. Although women s ll dispropor onately labored at what one today would call
household produc on, they along with the children, were also expected to help with the
crops or the ca le. And all of this was under the direc on and supervision of the man.,
see also RHONA C. FREE, 2151 CENTURY ECONOMICS: A REFERENCE HANDBOOK
580(2010). DUIKER AND SPIELVOGEL, WORLD HISTORY 456 (1994). ELAINE LEEDER, supra
note 26, at 95. HOWARD WINANT, THE WORLD IS A GHETTO: RACE & DEMOCRACY SINCE
WORLD WAR II 72(2001). LAMANNA, supra note 26, at 57. HOWARD WINANT, supra note
36, at 20-25. HOWARD ZINN, A PEOPLE'S HISTORY OF THE UNITED STATES 42 -46(2003).
MAXINE BACA ZINN AND D. STANLEY EITZEN, DIVERSITY IN FAMILIES 38(2014). WALSH,
MARRIAGE AND FAMILY 1985- 1986 (1985). GOODSELL, A HSTORY OFF AMIL Y &
MARRIAGE 51(1934). STEVEN MINTZ AND SUSAN KELLOGG, DOMESTIC RELATIONS: A
SOCIAL HISTORY OF AMERICAN FAMILIES 1(1988). BRON B. INGOLDSBY, FAMILIES IN
GLOBAL AND MULTICUTURAL PERSPECTIVE 213 (2006). Chekki, D.A, Family Values and
Family Change', 27JOURNAL OF COMPARATIVE FAMILY STUDIES 409-411 (1996). !d. SCOTT
COLTRANE AND MICHELE ADAMS, GENDER AND FAMILIES 67 (2008). Frank Furstenberg,
Industrializa on & the American Family: A Look Backward, 31 AMERICAN SOCIOLOGICAL
REVIEW 338,326- 350 (1966). MAXINA BACA ZINN AND STANLEY EITZEN, DIVERSITY IN
FAMILIES 37 (2002). Jd. at 16. NANCY COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND
THE NATION 26(2000). Supra note 27, at 44. Supra note 36, at 47. Jd. at 77. 42 55 56 57 58
59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 15 76 71 78 79 80 81 82 83 84 Supra note
43, at 33. HARTMANN, HEIDI. "CAPITALISM, THE FAMILY, AND JOB SEGREGATION BY SEX."
SIGNS 1 (3): 137-169 (1976). Dabel Jane, A Superior Colored Man and a Scotch Women:
Interracial Marriages· in New York City, 80 INTERNATIONAL SOCIALSCIENCE REVIEW 1850-
1870, 133, 132-140 (2005). GOODE, WILLIAM J., WORLD REVOLUTION AND FAMILY
PATTERNS (New York: Free Pres)(1963). JONES 1985; see also DARLENE CLARK HINE AND
KATHLEEN THOMPSON, A SHINING THREAD OF HOPE 94(1998). Bogger T.L, Laissez faire
Racism: The Crystalliza on of a Kinder, Gentle, An -black Ideology, 57 JOURNAL OF
MARRIAGE AND THE FAMILY 23,21-30 (1997). JOHN H.GOLDTHORPE, SOCIAL MOBILITY &
CLASS STRUCTURE IN MODERN BRITAIN 12-13 (1987). BOOKS OF THE NEW TESTAMENT:
"PAULINE EPISTLES" Supra note 36, at 106. KAKAR, S, THE INNER WORLD:
PSYCHOANALYTIC STUDY OF CHILDHOOD AND SOCIETY IN INDIA (1981). MARILYN YALOM,
A HISTORY OF THE WIFE 62 (2001) Malinowski, Bronislaw. "Parenthood, the Basis of Social
Structure." in THE FAMILY: ITS STRUCTURE AND FUNCTIONS 51-63 (edited by Rose Laub
Coser, New York: St. Mar n's Press, 1964) (1913). ANDREWJ.CHERLIN, MARRIAGE- GO-
ROUND: THE STATE OF MARRIAGE AND THE FAMILY IN AMERICA TODAY 116 (2009). Supra
note 51, at 28. Supra note 44, at 130. WINLLAIM J. GOODE, WORLD REVOLUTION AND
FAMILY PATTERNS (1963). PARSONS, TALCOTT, AND ROBERT F. BALES, FAMILY,
SOCIALIZATION, AND INTERACTION PROCESS (1954). HARTMANN HEIDI, CAPITALISM, THE
FAMILY, AND JOB SEGREGATION BY SEX 137-169 (1976). GERSON, KATHLEEN, THE
UNFINISHED REVOLUTION: COMING OF AGE IN A NEW ERA OF GENDER, WORK, AND
FAMILY (2011). POPENOE, DAVID, JEAN B. ELSHTAIN, AND DAVID BLANKENHORN,
PROMISES TO KEEP: DECLINE AND RENEWAL OF MARRIAGE IN AMERICA (1996). BECKER
& GARY S.A TREATISE ON THE FAMILY (1981). Collins, Randall, A Conflict Theory of Sex
Stra fica on, 19 SOCIAL PROBLEMS 3-21 (1971). CHODOROW, NANCY, THE
REPRODUCTION OF MOTHERING: PSYCHOANALYSIS AND THE SOCIOLOGY OF GENDER
(1978). STACK & CAROL B, ~L OUR KIN: STRATEGIES FOR SURVIVAL IN A BLACK
COMMUNITY. NEW YORK: HARPER AND ROW (1974). SARKISIAN, NATALIA, AND NAOMI
GERSTEL, NUCLEAR FAMILY VALUES, EXTENDED FAMILY LIVES: THE IMPORTANCE OF
GENDER, RACE, AND CLASS (2012). West, Candace, and Don Zimmerman, Doing Gender,
1 GENDER AND SOCIETY 125- 151 (1987). HOCHSCHILD, ARLIE R. & ANNE MACHUNG, THE
SECOND SHIFT: WORKING PARENTS AND THE REVOLUTION AT HOME (1989). BLAIR-LOY &
MARY, COMPETING DEVOTIONS: CAREER AND FAMILY AMONG WOMEN EXECUTIVES
(2003). AMATO, PAUL R & ALAN BOOTH, A GENERATION AT RISK: GROWING UP IN AN ERA
OF FAMILY UPHEAVAL ( 1997). ACOCK, ALAN C & DAVID H. DEMO, FAMILY DIVERSITY AND
WELL- BEING (1994). 43 85 86 87 88 89 90 9! 92 93 Supra note 73. FURSTENBERG, FRANK
F., RUBEN G. RUMBAUT, AND RICHARD A. SETTERSTEN JR., ON THE FRONTIER OF
ADULTHOOD: EMERGING THEMES AND NEW DIRECTIONS (2005). Arne , Jeffrey J,
Emerging Adulthood: A Theory of Development from the Late Teens through the Twen es,
55 AMERICAN PSYCHOLOGISTS 469-480 (2000). Mulla , L,'Changing Profile of the Indian
Family', The Changing Family in Asia, UNESCO Principal Regional Office for Asia and the
Pacific, RUSHSAP Series on MONOGRAPHS AND OCCASIONAL PAPERS (35 Bangkok 1992).
Shangle, S. 'A View into the Family and Social Life in India', Vol. 29 FAMILY PERSPECTIVE
423-446 (1995). Supra note 45, at 409 Nandan, Y. and Eames, E. 'Typology and Analysis of
the Asian-Indian Family', in THE NEW ETHNICS: ASIAN INDIANS IN THE UNITED STATES,
(Saran, P. and Eames, E. (Eds.), Praeger, New York, 1980). Singh, J.P. 'The Contemporary
 Indian Family', in HANDBOOK OF WORLD FAMILIES', (Adams, B.N and Trost, J. (Eds.) Sage
Publica ons Inc., California (2004). Census of India (2011), www.censusindia.net 44

Chapter - III THE INSTITUTION OF MARRIAGE CONCEPTUAL ANALYSIS

"Oh man and woman, having acquired knowledge from the learned, proclaim amongst
the wise the fact of your inten on of entering the married life. A ain to fame, observing
the noble virtue of non-violence, and upli your soul. Converse together happily, living in
a peaceful home, spoil not your life. " Yajurveda 1 3.1 Introduc on The concept of
marriage has evolved across different cultures at different points of me; and had been
understood in various ways as an ins tu on. Whether tradi onal socie es had
monogamous or polygamous marriages, prac ced sexual restraint or sexual freedom, or
were matriarchat2 or patriarchal were once burning topics for debates. These debates
resulted in social theories based more on ideology than empirical facts. 4 For instance,
Friedrich Engels argued that maternal families existed in early primi ve socie es, where
property was held communally, sexual rela ons were casual, and the family, when it was
dis nct from the larger group, was defined as mothers and their children. 5 Studies
however revealed that such maternal families were not actually matriarchal families or
families in which women held most of the power. 6 Conversely, religious theories held that
male dominated, monogamous marriages were God ordained and had always existed.
However, by the mid-nine es most had abandoned such debates in favor of research on
the new family system that was emerging because of the industrial economy. 7 Marriage
is a man-made ins tu on based upon various considera ons: social, economic, biological,
and psychological. 8 According to Anthropological Handbook Notes and Queries,
legi macy of offspring was the main aim of marriage. 9 According to S.K. Mishra, marriage
is a mixed condi on variously 45 described as a sacrament, as a contract, as a status or a
social ins tu on. 10 Since marriage cons tutes the very basis of social organiza on and
creates mutual rights and obliga ons between husband and wife, law interposes and
declares manage to be union for life. 11 Whether monogamous or polygamous, the system
of marriage does not emerge in a vacuum. Like families they are social ins tu ons that
serve a purpose. Thus, the prac ce of polygamy 12 was o en a strategy aimed at
increasing popula on size, ensuring the produc on of male heirs, or ensuring that all
women in the society were taken care by sugges ng that marriages should be entered into
by mutual consent and that women were partners in marriage than a form of property.
The primary goal of marriage is preserva on of human race. Marriage leads to family and
related religious, moral, sociological, psychological, physical, economic, legal, recrea onal,
and educa onal rela onships. Therefore, any society not dedicated to the social purposes
of the marriage is likely to get ex nct. It is the social task imposed by nature that makes
marriage an ins tu on- a social rela onship tending towards permanence. Without its
stability and perpetuity healthy child rearing is not possible. 13 Today it is recognized that
as there is a social interest in the preserva on of the ins tu on of marriage. Likewise,
there is a social interest in breaking the family where marital harmony does not, cannot
and will not exist. The func on of law is to provide remedy, as far as possible, even in few
cases that demand social solu on, i.e., dissolu on. 14 The present chapter a empts to
analyze the meaning of marriage, the nature and concept of marriage, various theories
rela ng to marriage and the transforma ons that took place in the character or nature of
marriage. 3.2 'Marriage' Defined Even though a few cultures have allowed people of the
same sex to marry, marriage has almost universally been defined as a social and legal
union between 46 men and women. 15 Max Weber defined marriage as a stable sexual
rela onship allowed and legi mized by the larger kin group and used to determine rules
about property rights for children. 16 To Westermarck, marriage is a durable connec on
between male and female, las ng beyond the mere act of propaga on ll a er the birth
of the offspring. 17 Mazumdar highlights the primary func ons of marriage as a socially
sanc oned union of male and female for the purpose of establishing (a) household (b)
entering sexual rela ons (c) procrea ng and (d) providing care for the offspring. 18
Vinogradoff offers a child -centric defini on by sta ng that marriage is not only an
ins tu on regula ng sexual intercourse and kept by conjugal affec on, but also an
arrangement for bringing up of children and a partnership for economic ends and social
coopera on. 19 Bhagavathi J. while explaining the object of marriage observed that it is
the source of every domes c comfort from infancy to old age and it is necessary for the
preserva on and wellbeing of our species. According to him marriage awakens and
develops the best feelings of our nature; it is the source of important legal rights and
obliga ons and in its higher forms it has tended to raise the weaker sec ons of human
race from a state of humilia ng servitude.Z0 Underlining the significance of marriage vis-
a-vis children, the Supreme Court of India once opined that, 21 marriage is a ma er of
status and legal consequences of a marriage affect not just the two par es but also
innocent third par es, the children. Therefore matrimonial adjudica on law tends to
touch the domain of human rights also. Having and raising children within the bonds of
marriage is a powerful protec on against poverty and dependency. Research by the
Heritage Founda on 22 demonstrates that two-thirds of children living in poverty today
would be li ed above the poverty line immediately if their mother married their father.
The benefits of marriage are enormous and transcend the 1 . 23 pure y economic. 47
Maggie Gallagher warns that, 24 fragmenta ons of family would result in crime, poverty,
drug abuse, teen pregnancy, school failure, mental and physical health problems. Manu,
the seer, who is regarded to be the expounder of Hindu Law, explains the thesis of sacred
rela onship of marriage thus: "To be mothers were women created and to be father men,
the Vedas ordain the dharma must be prac ced by man together with his wife. He only is
a perfect man who consists of his wife, himself, and his offspring. 25 3.3 Theories of
Marriage A theory which is a set of general principle used to explain data and to make
predic ons that may be empirically tested, 26play a crucial role by pulling out direc ons
for research according to the ques ons they raise. The different. theories rela ng to
marriage are discussed below: 3.3.1 Symbolic Interac on Theory This theory explores
ways in which people interact with each other; and focus more on "rela onships." The
advocates of this theory study about the interac ons that mould rela onships. An
interac on is considered as a reciprocal act. In 1920 Ernest Burgess defined family as a
unity of interac ng personali es?7 Thus, in the development of marriage and family
studies, interac on plays a crucial role. Marriage and families ·consist of individuals who
interact with one another over a period which then define the nature of the family as
loving family, conflict ridden family, emo onally distant family, and high achieving family.
The theory is however not devoid of cri cisms: it tends to minimize the role of power in
rela onships like understanding resolu on of conflict. It emphasizes individualism;
encourages competence in interpersonal rela onships; and values individual happiness
and fulfilment over stability, duty, responsibility, and other familial values.28 48 3.3.2
Social Exchange Theory Social exchange theory measures human ac ons and rela onships
based on a cost benefit analysis. People maximize their rewards and minimize cost by
employing their resources to gain the most favourable outcome. When the emo onal cost
outweighs the benefits of the rela onships, the rela onships tend to come to an end.
Some researchers suggest that when partners recognize that they are involved in an
inequitable rela onship, they generally feel uncomfortable, angry, and distressed?9 The
assump on here is that individuals are ra onal animals who weigh the costs and rewards
of their rela onships. But individual’s tum out to be some mes ra onal and some mes
not. Some mes individuals act altruis cally like parent-child rela ons and engage in true
love rela ons, without expec ng any reward. The theory many a mes fails in ascertaining
the value of costs, rewards, and resources as they are highly individualis c or rela ve.
3.3.3 Structural Func onalism Theory Structural func onalism theory explains how
families relate to a larger society as well as with their own members. Jennie Mclyntyre was
the first scholar to discern the curious paradox of structural func onalism within the realm
of research and theory about families. It discusses what func ons the family serves for the
society, what func onal requirement are performed by family members for the family and
what needs the family moulds for its individual requirements.30 According to structural
func onalists, the family moulds the kind of personali es it needs to carry out its
func ons. But although structural func onalism has been an important theore cal
approach to the family, it has lost its relevance for several reasons: Firstly, the theory
cannot be empirically tested for being right or wrong. Secondly, the func ons of a system
are not clear. Third, structural func onalism has a conserva ve bias against change. Finally,
structural func onalism looks at the family abstractly. It looks at family formally, ignoring
the ground reali es. 49 3.3.4 Conflict Theory Conflict theory holds that life inherently
involves discord. Conflict theorists see society not as basically co-opera ve but as divided,
with individuals and groups in conflict with each other. The proponents of this theory try
to iden fy the compe ng forces. Conflict theorists agree that love and affec on are crucial
elements in marriages and families, but they at the same me believe that conflict and
power are also fundamental features. Marriages and families are composed of individuals
with different personali es, ideas, values, tastes, and goals. Conflict theorists do not
believe that conflict is bad, instead, it is considered as inevitable and inherent factor in
family life. But it has been found that many difficul es arise in conflict theory: Firstly,
conflict theory derives strength from poli cs, which is ridden with self-interest, ego sm,
and compe on as dominant elements. The theory does not emphasize on people's
behaviour. Secondly, it assumes that differences lead to conflict. But a difference does not
necessarily or always imply conflict. It may also be accepted, tolerated, or appreciated.
Finally, conflict in families cannot be evaluated easily.31 3.4 Concept of Marriage: Global
Scenario 3.4.1 Concept of marriage in the Western Sphere Research in the western sphere
amply demonstrates that many individual and social benefits are rooted in the
monogamous permanent union of one man and woman. 32Despite these benefits,
currently more couples are either choosing not to marry or accep ng a variety of non-
marital and alterna ve sexual rela onships including homosexual rela onships. 33 One
out of six births in the United States occurred outside marriage, higher ra o than them
during mid-century. 34 The posi on is similar in Canada35 and in the United Kingdom and
Ireland. In the Nordic countries of Denmark, Iceland, Norway, and Sweden, the figure
ranges from about 45% to about 65%.36 Marriage is no longer the universal se ng for
child-bearing that it was half a century ago. 50 Cohabita on is becoming more
ins tu onalized. In the United States, States and municipali es are moving toward
gran ng cohabi ng couples some of the rights and responsibili es that married couples
have. Canada has gone further under the Moderniza on of Benefits and Obliga ons Act
of 2000. Legal dis nc ons between married and unmarried same-sex and opposite-sex
couples were eliminated for couples who have lived together for at least a year. S ll, the
Supreme Court of Canada ruled in 2002 that when cohabi ng partners dissolve their
unions, they do not have to divide their assets equally; and one partner cannot be
compelled to pay maintenance payments to the other, even when children are involved.
37 In France, unmarried couples may enter Civil Solidarity Pacts, which give them most of
the rights and responsibili es of married couples, a er the pact has existed for 3 years.38
Several other countries have ins tuted registered partnerships.39 With regard to same-
sex marriages, in 2003, the Massachuse s Supreme Court struck down a state law limi ng
marriage to opposite-sex couples. 40 Samesex marriage became legal in May 2004. 41 The
issue has developed further in Canada. In the early 2000s, courts in Bri sh Columbia,
Ontario, and Quebec ruled that laws restric ng marriage to opposite-sex couples were
discriminatory. In Europe, same-sex marriage has been legalized in some jurisdic ons.
Sociologists have called a family that is formed largely through voluntary es among
individuals who are not biologically or legally related, the "family of choice".42 The
meaning of marriage got dras cally transformed during the 201 h century, due to the long
term cultural and material changes which took place during this period. The changes
included: division of labor, child bearing outside of marriage, cohabita on, and gay
marriage. These developments, along with historical events such as the depression and
Second World War, produced two great changes in the meaning of marriage during the
20th century. Ernest Burgess labelled the first one as a transi on 'from an ins tu on to a
companionship.' ' 43In describing the rise of the companionate marriage, he was referring
to the single-earner, bread winner home maker marriage that flourished 51 in the1950s.
Although husbands and wives in the companionate marriage usually adhered to a sharp
division of labor, they were supposed to be each other's companions, friends, and lovers
to an extent not imagined by the spouses in the ins tu onal marriages of the previous
era. The increasing focus on bonds of sen ment within nuclear families cons tuted an
important but limited step in the individualiza on of family life. Much more so than in the
19th century, the emo onal sa sfac on of the spouses became an important criterion for
marital success. However, through the 1950s, wives and husbands tended to derive
sa sfac on from their par cipa on in a marriage-based nuclear family. 44 They based
their gra fica on on playing marital roles well: being good providers, good homemakers,
and responsible parents. During this first change in meaning, marriage remained the only
socially acceptable means to have a sexual rela onship and to raise children in the United
States, Canada, and Europe, except for the Nordic countries. 45 In the United States,
marriage and only marriage was one's cket of admission to a full family life. But, from
early 1960s, marriage's dominance began to diminish. The second great change in the
meaning of marriage occurred later. Cohabita on prior to (and a er) marriage became
much more acceptable. Child-bearing outside marriage became less s gma zed and more
accepted. Birth rates declined in the long run and sunk to all- me lows in most countries.
Divorce rates rose to unprecedented levels. Same-sex unions started gaining greater
acceptance. During this transi on, the companionate marriage lost ground not only as the
demographic standard but also as a cultural ideal. It was gradually overtaken by different
forms of marriage including non-marital families. The result was a transi on from the
companionate marriage to what came to be called as the individualized marriage. The
transi on to the individualized marriage began in the six es and accelerated in the
seven es.46 Three themes that characterized beliefs about the post-1960 style marriage
was iden fied by 52 Cancian thus: The first was self-development. According to this theme
each person should develop a fulfilling, independent self instead of merely sacrificing
oneself to one's partner. The second theme was that roles within marriage should ~e
flexible and nego able. According to the third, communica on and openness in
confron ng problems are essen al. She characterized this transi on as a shi in emphasis
''from role to self.'' Alongside, the role of law also changed significantly. This
transforma on was most apparent in divorce law. In the United States and most other
developed countries, legal restric ons on divorce were replaced by statutes that
recognized consensual and even unilateral divorce. The transi on to "private ordering'·'
allowed couples to nego ate the details of their divorce agreements within broad limits.
47 Most European na ons experienced similar legal developments. 48 The French social
demographer Louis Roussel men ons a "double deins tu onaliza on" in behaviour and
in law: a greater hesita on of young adults to enter into marriage, combined with a
loosening of the legal regula on of marriage. Sociological theorists of late modernity such
as Anthony Giddens in Britain49 and Ulrich Beck and Elisabeth Beck-Gemsheim in
Germany 50also have wri en about the growing individualiza on of personal life.
Consistent with the idea of deins tu onaliza on, these sociologists noted the declining
power of social norms and laws as regula ng mechanisms for family life. They also stressed
the expanding role of personal choice. They argued that, as tradi onal sources of iden ty
such as class, religion and community lose influence, one's in mate rela onships become
central to self-iden ty. Giddens writes about the emergence of the "pure rela onship" as
an in mate partnership entered for its own sake which lasts only as long as both partners
are sa sfied with the rewards (mostly in macy and love) that they get from it. In some
ways, it can be considered as the logical extension of the increasing individualism and the
deins tu onaliza on of marriage that occurred in the 20th century. The pure rela onship
is not ed to an ins tu on such as marriage or to the desire to raise children. Rather, it is
"free-floa ng", 53 independent of social ins tu ons or economic life. Unlike marriage, it
is not regulated by law, and its members do not enjoy special legal rights. It exists primarily
in the realms of emo on and self-iden ty. Giddens even goes to the extent of arguing that
marriage has already become ''just one life-style among others," although people may not
yet realize it because of ins tu onal lag. 51 3.4.2 Concept of marriage in the Asian and
African Spheres Throughout Asia, marriage behaviour and family life has been undergoing
change. Young people are wai ng later to marry, couples are having fewer children, and
more married women are working outside the home. 52 Within the region, such trends
were observed first in Japan and more recently in South Korea, Taiwan and Singapore.
Similar pa erns are emerging in other Asian countries. Half a century ago, universal and
early marriage was characteris c of almost all of Asia, but child marriage was very
common in South Asia. 53 Asia's all three sub-regions have dis nct tradi onal family
structures. In East Asia, including China, North and South Korea, Japan, Hong Kong and
Taiwan, tradi onal families are strongly male-dominated. A woman leaves her · parents at
marriage and o en lives with her husband's parents if he is a first son. With economic
development and moderniza on, however, women in most East Asian countries now
enjoy a great deal of autonomy than they had in the past. 5 4 Family pa erns of ethnic
Chinese popula ons in Singapore and other Southeast Asian countries offer a contrast. It
resembles the tradi onal family structures of East Asia. In South Asian countries such as
Bangladesh, India, Nepal and Pakistan a strong male-dominated family system prevails. 55
Families in Sri Lanka were found to be somewhat less patriarchal. At later stages of
economic development, it has been found that longer schooling tends to delay marriage.
In the case of young women, paid employment that provided a measure of financial
independence, reduced the pressure to marry early. Educa on and employment tend to
expand women's horizons and provided them with previously unavailable opportuni es
and lifestyles that compete with 54 marriage. With further moderniza on, a major
expansion of the service sector brought together with it structural changes in the labour
market, crea ng large number of jobs that were compa ble with tradi onal female roles.
The result was a massive shi of women into paid employment outside the home. Young
unmarried women usually dominated during the ini al stages of this shi were followed
later by married women. These changes have already taken place in Western Europe and
North America. These changes are occurring now in many Asian countries, especially in
East and Southeast Asia, generally at a faster pace than it occurred in the West. In Asia's
most modem socie es, young people find mamage less important. This is because
premarital sex is becoming increasingly acceptable. In Japan, about half of single women
between 18 to 34 years of age report that they are currently using contracep ve methods.
Japan is quite different from latemarrying socie es which prevail in Europe and North
America. However, there is much less "living together" than in the West and almost no
childbearing outside of marriage. Indeed, Japan has the lowest propor on o irths outside
wedlock. 5 6 Rising divorce rates may also reduce the a rac veness of marriage. In
tradi onal socie es of South Asia, divorce is s ll rare. But in East Asia, divorce rates, while
lower than in the United States or most countries of Western Europe, are rising. Although
comprehensive informa on on divorce is difficult to obtain, it is es mated that one in five
marriages in Japan, South Korea, and China have been reported to have ended in divorce.
Today, governments in many Asian countries are increasingly ques oning policies that
restrict services to clients who are married. The Philippine government's current family
planning strategy, for example, promises reproduc ve health informa on and services for
all, regardless of marital status. 57 The risk of HIV/AIDS and other Sexually Transmi ed
Infec ons (STis) raises another serious policy concern. By making condoms and counseling
available without restric on, government programs provides life-saving benefits 55 to
young people who are sexually ac ve and also to their current and future partners. 58
Early childbirth is another serious health concern. Research on family decision-making in
South Asia's strongly patriarchal socie es has revealed pa erns that are seriously
detrimental to the health of women and children. One study in two communi es of rural
Bangladesh found that women were extremely restricted in terms of decision-making on
health issues and associated physical · mobility. 59 l Wealthy women had both less
authority and less freedom than poor women. Clearly, in a patriarchal society, wealthy
households can afford to keep women in seclusion, while poverty forces women to have
less contact with the outside. world. Thus an individual woman's educa on and economic
status may not necessarily improve her posi on in a male-dominated society. Such factors
may even diminish a woman's posi on if social expecta ons remain unchanged. A
compara ve study of women's roles in family economic decisionmaking further highlights
restric ons on women's independence and authority in the patriarchal families of South
Asia. Among five Asian countries, women in Pakistan report the lowest levels of economic
power. 60 3.5 The Na onal Percep ons 3.5.1 Under Hindu Tradi on The ins tu on of
marriage has been considered by Hindu sages as more sacred and religious than worldly
and secular. It is the last of the ten sacraments necessary for Hindus. A Hindu marriage is
primarily considered a holy union for the performance of religious du es. From the very
commencement of the Rig Vedic age, marriage was a well-established ins tu on, and the
Aryan ideal of marriage was very high. Monogamy was the approved rule, even though
polygamy existed to some extent.61The predominant features of Hindu marriage are
firstly, that it is sacrament and not a contract, 62 and secondly, it is a polygamous union.
63 56 The jus fica on for this in Hindu law can be made not by reasoning in support of
them, but by realizing the social context in which these rules arose. During those days
when the Hindu sages laid down the law for Hindus, men were living in a stage of
patriarchy. Children were regarded as the property of the father. So, like any other cha el,
the father could transfer the daughter either by sale or by gi or by any other mode he
thought fit. The posi on of a slave, wife, daughter or son was almost at par. With the
change in social circumstances, social needs and social facts, the Hindu Marriage Act64
does its job in one sweep. It lays down the two important rules: monogamy shall be the
rule for all Hindus; and divorce shall be available to all Hindus. 65 Further, though the Act
lays down that the customary formali es and ceremonies for the solemniza on of the
marriage are necessary, it emphasizes the contractual aspect of the marriage. The Act
appears to lay down the following view ofVyavastha Chandrika66: "Marriage amongst us
Hindus, though essen ally a religious sacrament (being the last of the ini atory rites
prescribed for men of the regenerate classes, and the only one for women and Sudra’s)
partakes also of the nature of a civil contract." Thus the sacramental nature of the Hindu
marriage has been retained in the Act, though it is to be noted that it is more a ma er of
formali es than of the nature of Hindu Marriage. By providing for divorce, the framers of
the Act have accepted the contractual nature of mani. Age. The Hindu marriage no longer
remains a permanent and inviolable union. 67 Originally, the Hindu law ie, the
Grihyasutras recognized as many as eight forms of marriage. They were brahma,68 daiva,
69 arsha,70 prajapatya,71 asura, 72 gandharva,73 rakshasa74 and paishacha75 • These
forms are uniformly referred to in all the Dharamshastras. In the Sutra and Smrithi period,
the first four forms i.e. brahma, daiva, arsha and prajapatya were regarded as the best
forms of marriage. 76 · 57 The supreme marital objec ve behind the ins tu on of
marriage under Hindu law was to procreate a son. And the son could redeem the father
from hell, who could succeed to his property and could avoid ex nc on of the line.
Marriage being a sacrament and indissoluble union, no emphasis was placed upon the
contractual aspect ofmani.age.77 In reality, Hindus did not consider their marriage as a
contract. Under the Hindu Marriage Act, 1955, divorce is recognized, yet one cannot say
that marriage has become a contract or has remained a sacrament. For a valid marriage,
the Hindu Marriage Act, 1955 (HMA) requires mental capacity78 at the me of marriage.
The bridegroom must complete the age of 21 years and bride the age of 18 years. If
marriage is looked upon as a contract, consent of both the par es is a condi on precedent
to marriage; and a contract with minor is void.79 The ques on is, should the same test be
not applicable to marriage if marriage is regarded as a contract. But the fact is that
marriage in viola on of the above men oned requirements does not render the marriage
void. The viola on of requirement as to mental capacity renders the marriage merely
voidable, while viola on of the requirement as to age does not render the marriage void
or voidable; it will be a valid marriage. 80 Under the law of contract, a contract for want
of capacity is void abini o. 81 The Hindu Marriage Act does not a ach much importance
to the ques on· of consent. Thus a person incapable of giving consent can many and it will
be valid marriage. If consent of either party to marriage or consent of guardian is obtained
by fraud or force, the marriage is merely voidable. Then, could it be said that Hindu
marriage con nues to be a sacrament? The sacramental marriage among Hindus has three
characteris cs: It is a permanent and indissoluble union, it is an eternal union; and thirdly,
it is a holy union. So the first element is destroyed by the concept of divorce as the Act
itself recognizes it. The second element was destroyed in 1856 when the widow
remarriage was given statutory recogni on. The third element is s ll retained to some
extent. In most of the Hindu marriages, a sacred or religious ceremony is s ll necessary.
But this aspect of sacramental ceremony is of least importance. So, 58 it may be concluded
that the Hindu marriage has not remained a sacramental marriage and has also not
become a contract, though it has semblance of both. 3.5.2 Marriage under Islam In pre-
Islamic Arabia, marriage (nikah) connotes different forms of sexual rela onship between
a man and woman established on certain terms. In preIslamic days, women were treated
as cha el and were not given any right of inheritance and were dependent. It was Prophet
Mohammed who brought about a sea change in the posi on of women. He placed women
at a foo ng almost equally with men in the exercise of all legal powers and func ons. 82
Under the present Muslim law, marriage is considered as a civil contract. In Baillie's Digest,
marriage has been defined to be "a contract for the purpose of legalizing sexual
intercourse and procrea on of children." In Hedaya, it is stated that "nikah in its primi ve
sense, means carnal conjunc on." Dr. Jang is of opinion that "marriage though essen ally
a contract is also a devo onal act; its objects are enjoyment and procrea on of children;
and the regula on of social life in interest of society. 83 The major aspects of mamage in
Islamic law can be conveniently classified as follows: 84 I. Legal aspect: juris cally, it is a
contract not a sacrament. It has three characteris cs: (a) consent is mandatory; (b) as a
contract, there is provision for its breach and dissolu on by the act of par es or by
opera on of law; and (c) the terms of the contract are within legal limits capable of being
altered to suit individual cases. II. Social aspect: about social aspect, three important
factors a~e important: (a) women acquire high status a er marriage; (b) restric ons are
placed upon the unlimited polygamy; and (c) Prophet encouraged the status of marriage.
59 III. Religious aspect: Muslim marriage is an Ibaadat (devo onal act); and an ins tu on
intended to upli mankind, and a means for the con nuance of human race. This aspect
is o en neglected or misunderstood. Marriage is regarded in Islam as the basis of society.
It is a contract, but it. is also a sacred covenant. The tradi on of the Prophet follows the
same lines, "marriage when treated as a contract is a permanent rela onship based on
mutual consent on the part of a man and a woman between whom there is no bar to a
lawful union." A glossary on Tirmizi sets out four objects of marriage as given below: 1.
The restraint of sexual passion: Hedaya says, "the intercourse of a man with a woman who
is not his wife is unlawful and prohibited absolutely".85 ii. The ordering of domes c life:
Kifaya says, "it is one of the original necessi es of man (al-Hawj-ulaslia) ins tuted for the
good ordering life."86 iii. The increase of the family: Kaifiya says, "It is lawful on the part
of an old man (shiekh-ul-kabir) or who has no hope of offspring and even in the last or
death illness. "87 1v. The procrea on and upbringing of virtuous children: Tyabji ·says,
"Marriage brings about a rela on based on and arising from a permanent contract for
intercourse and procrea on of children, between a man and woman." 88 There are
different opinions about the nature of Muslim marriage. Some jurists believe that Muslim
marriage is purely a civil contract; while others maintain that it is a religious sacrament in
nature. The view that marriage is not purely a civil contract but a religious sacrament too
is an orthodox view, but it is a view supported by the judiciary. In Shoharat v. JafriBibi, 89
the Privy Council observed that Nikah is a religious ceremony. However, in Anis Begum v.
Mohammad lstafa, 90 Sir Shah Sulaiman, J. has taken a via media stand by holding 60 it
both as civil contract and religious sacrament. Sulaiman J. observed, "It may not be out of
place to men on the Maulvi Samiullah (D.J. Raibarielly) collected some authori es
showing that marriage is not regarded as a mere civil contract but a religious sacrament."
Even though the learned judge does not himself regard marriage as a sacrament, but from
his observa on, it is clear that he supported the view of Maulvi Samiullah. In
Sirajmohmedkhan v. Hafizunnisa, 91 the Supreme Court has described it as a 'sacrosanct
contract'. Taking the religious aspect into account, Muslim marriage is an Ibaadat
(devo onal act). Marriage is an ins tu on to upli mankind; and a means for the
con nuance of human race.92 Spouses are strictly enjoined to honour and love each
other. "It is ins tuted by divine command among members of the human species’ Prophet
stated that, "I keep fast and break it. I pray and I sleep and I · am married, so whoever
inclines to any other way than my Sunnah, he is not of me." It means Muslim marriage is
something more than a civil contract. In the words of Baillie, marriage is," for the solace
of life; it is therefore lawful in extreme old age a er hope offspring has ceased, and even
in the last or death illness. " 94 Muslim mamage is not merely a civil contract due to the
following reasons: (i) unlike civil contract, it cannot be made con ngent on future event;
(ii) subject to an excep on in Shia law, it cannot be for a limited me (muta marriage is an
excep on); (iii) the analogy of lien cannot be applied to a marriage contract; and (iv) in a
contract of marriage, the wife is not en tled to divorce her husband or to remain with a
third person if a part of his dower remain unpaid. However, some jurists consider Muslim
marriage as a civil contract. This view seems to be since Muslim marriage resembles a
contract in certain aspects given below: - 61 i. Marriage reamers· a proposal (!jab) from
one party and its acceptance (Qabool) from the other as in a contract. n. Free consent is
mandatory in both: consent should not be obtained by means of coercion, fraud or undue
influence. iii. A contract of marriage entered by a guardian, on a aining majority, can be
set aside by a minor as in the case of a contract. tv. The par es to a marriage may enter
into any ante nup al or post nup al agreement which is enforceable by law, provided it is
reasonable and not ' opposed to the policy of Islam. Same is the case with a contract. v.
The terms of a marriage contract as well as an ordinary civil contract may also be altered
within legal limits to suit individual cases. vi. Both can be dissolved by the act of par es.
One may conclude the nature of Muslim marriage by the observa on of M. Jung:
"marriage is an ins tu on of Ibaadat clothed in the legal form of contract regarding sexual
intercourse; lent its con nence is dependent upon the maintenance of conjugal affec on."
So, it is devoid of none but the blending of two. The Shia law recognizes two kinds of
marriages, namely: permanent and temporary or muta. Temporary or muta marriages are
void according to Sunni law.95 According to Mulla, there are only limited incidents of a
muta marriage.96 3.5.3 Ins tu on of Marriage under Chris anity Most frequently asked,
and disputed, ques ons concerning Chris an marriage were addressed by the
Interna onal Theological Commission at its mee ng in 1977. Its answers were published
in the form of "Proposi ons on the Doctrine of Chris an Marriage," which represented a
significant step in doctrinal development. Chris an marriage has been described as a
"secular reality" which has become a "saving mystery." Indeed, in the "new crea on" in
which we live, 62 marriages have acquired a new purpose. Besides being for "mutual help"
and "procrea on of children," it is there to "save and sanc fy."97 If there is a covenant,
there are covenanters. Who are they? The man and the woman exchanging promises; who
mutually agree to a communion of life un l death do them part: a bilateral agreement. 98
Leo XIII remarked that: "To the teaching of the Apostles, indeed, are to be referred the
doctrines which our holy fathers, the councils, and the tradi on of the Universal Church
have always taught, namely that Christ, our lord raised marriage to the dignity of a
sacrament."99The classical Scriptural text is the declara on of the Apostle Paul, who
empha cally declares that the rela on between husband and wife should be as the
rela on between Christ and His Church: "Let women be subject to their husbands, as to
the Lord: because the husband is the head of the wife, as Christ is the head of the Church.
He is the savior of his body. Therefore as the Church is subject to Christ, so also let the
wives are to their husbands in all things. Husbands, love your wives, as Christ also loved
the Church, and delivered Himself up for it: that He might sanc fy it, cleansing it by the
laver of water in the word of life; that He might present it to. Himself a glorious church not
having spot or wrinkle or any such thing; but that it should be holy, and without blemish.
So also, ought men to love their wives as their own bodies. He that loveth his wife loveth
himself for no man ever hated his own flesh; but nourished it and cherished it, as also
Christ doth the Church: because we are members of His body, of His flesh, and of His
bones. " 100 A er this exhorta on, the Apostle alludes to the Divine ins tu on of
marriage in the prophe cal words proclaimed by God through Adam: "For this cause shall
a man leave his father and mother and shall cleave to his wife, and they shall be two in
one flesh. " He then concludes with the significant words in 63 which he characterizes
Chris an marriage:" This is a great sacrament; but I speak in Christ and in the Church." 101
In pre-Chris an Roman law, mamage and divorce were private acts. Romans had the same
freedom of dissolving their marriage as they had in entering them. No formali es were
needed for either. But with the advent of Chris anity, marriage came to be regarded as a
sacrament, with its doctrine of indissolubility of marriages which finds judicial recogni on
in Hyde v. Hyde. 102 The Chris an marriage being a sacrament was indissoluble.
Separa on from bed and board was recognized. Par es could live away from each other
ll life. There was no right to remarry during the life of the other. Where a marriage had
not been consummated, it might be dissolved on the proof of nonconsumma on of
marriage, on both the par es taking a religious vow or papal dispensa on. It was the
reforma on which effected changes in the concept of marriage and which made the
Chris an world divided into Catholics and Protestants. The Protestants started considering
the marriage as a dissoluble union, subject to the jurisdic on of the civil courts, while
Catholics con nued to adhere to the no on of indissolubility of marriage, and the church
con nued to have firm jurisdic on over it. Once the Protestant world came to consider
marriage as a dissoluble union and under the jurisdic on of civil courts, great strides were
made when the Industrial Revolu on firmly took the view that marriage was a civil
contract, which was dissoluble under certain circumstances. The Industrial Revolu on's
ideas of liberty, equality and pursuit of happiness gave a further impetus to liberate
marriage from the fe ers of the church. Once the marriage was accepted as a contract, it
was next, a logical step to consider it as a dissoluble union. Marriage came to be
recognized as a human ins tu on based on free voli on of men and women who were
undoubtedly responsible though not infallible individuals. They can err and can blunder.
They should be given the right and liberty to get out of the burden that had become 64
intolerable, and which was sapping the vital energy and moral fibre of the spouses to a
marriage that had failed. As in other human affairs so in marriage, people should have the
opportunity to rec fy their errors. On the other hand, the Catholics con nued to uphold
and follow the ecclesias cal doctrinaire view of sacramentality and indissolubility of
marriage, while the Protestants became liberated and propounded the no on of
contrac lity and dissolubility of marriage. Yet, the Protestants, though regarded their
marriage as contract, regarded it as a special contract. It was not equated with a
commercial contract. They asserted that marriage being a social ins tu on, there was
social interest in its preserva on and protec on. Marriage though dissoluble can be
dissolved only in those cases where a party to the marriage by his act or omission
fundamental by undermines it. Bri sh coloniza on of India has had a tremendous impact
on the legal system in India. In many respects, English law in le er and spirit came to be
applied in India. As regards Chris ans, the earliest Act that was made applicable to
Chris an marriages in Bri sh India was the statute 14 and 15 Victoria, Chapter 40. This
was followed by statute 58 Geo III Chapter 84. These were supplemented by the Indian
Act VIII of 1852 and then by Act XXV of 1864 and then again by Act V of 1865.Even when
the law rela ng to Chris an marriage was s ll in a fluid state, Bri sh Indian Administra on
thought it necessary to bring in a law for divorce among Chris ans. The Indian Divorce Act
1869 came to be enacted in India except in the Princely States, former Portuguese and
French se lements and certain tribal areas. 103 Subject to such excep ons, generally
speaking, the Indian Divorce Act, 1869 is the law of divorce for Chris ans in India.
104Among the Indian Chris ans, marriage is regarded as a civil contract though it is usually
solemnized by Minister of religion licensed under the Chris an Marriage Act, 1872. 3.5.4
Ins tu on of Marriage under Parsi Law Since 1835 efforts were made by the members of
the Parsi community to have suitable marriage law keeping in view their social
requirements. That effort culminated in the passing of the Parsi Marriage and Divorce Act,
1936. Ini ally 65 the Parsi Marriage and Divorce Act, 1865 was based on Matrimonial
Causes Act, 1857 of England. The various defects of Parsi Marriage and Divorce Act, 1865
were rec fied and the law on the subject was made in conformity with the changed
condi ons and views of Parsi community by the Parsi Marriage and Divorce Act, 1936. This
Act has-been amended in 1988 by the Parsi Marriage and Divorce (Amendment) Act, 1988.
105 The word 'Parsi' in the Act means Zoroastrian, both of India and Iran. The court
cons tuted under the Parsi Marriage and Divorce Act, 1936 had jurisdic on over them.
106 A Parsi husband or wife cannot remarry in the life me of his wife or· husband un l
his or her marriage is dissolved by a competent court although he or she may have become
a convert to any other faith. It shows that Pars marriages are strictly monogamous and
dissoluble. 107 3.5.5 Ins tu on of Marriage under Jewish law The making and validity of
a contract of marriage between Jews in India depends wholly on the religious usages of
the Jewish faith and is unaffected by legisla on. The law of marriage of Jews is not codified
in India. Even today they are governed by their religious laws. The book on "Marriage and
Divorce" wri en by David Melzinar is followed in the courts. 108 The en re law of
marriage and divorce among Jews in India has been discussed by Crumps J. in Benjamin
v.Benjamin. 109 The Jews regard marriage not as a civil contract but as a rela on between
two person involving very sacred du es. 110 Marriage in Judaism may not be viewed as
an "outward sign of inward and divine grace", yet it is respected as a sacred ins tu on.
The Hebrew religion sees no conflict between man's duty to his family and man's duty to
God and thereby the highest values of purity, sanc ty and stability are vested in the Jewish
family which has been preserva ve of their religious-moral and socio-cultural treasures,
thereby it become incumbent and significant that laws of the family should occupy an
exalted status in the Jewish Legal Corpus. 111 66 In the absence of legisla on governing
Jewish marriage and divorce we must glance through the religious scriptures which remain
as the hidden treasure of serenity of Jewish family structure of making, sharing, and
breaking of marriage. It is per nent to men on here that the Jews wherever they reside,
willingly submit to the civil regula ons regarding marriage and divorce with the Talmudic
admoni ons: - "DINA d' malkhutadina" meaning thereby that the law of the land is
binding. 112 The Talmud considered marriage a holy contract, and the dissolu on of
marriage an unholy act. They quote the prophet Malachi, " ... the Lord has been witness
between you and your wife of your youth against whom you have dealt treacherously,
though she is your companion, the wife of your covenant". 113 Jewish Oral law added
that, "even God shares tears when anyone divorces his wife."114 3.6 Conclusion There
could be objec ons about the characteriza on of marriage as a contract; and those raise
objec on maintain that marriage seems more like status than contract- a status that
defines and specifies most of the explicit rights, du es, and privileges of marriage, rather
than the par es. 115However, these objec ons are not fatal to the concept of marriage
as a contract. They highlight the peculiari es of this contract. The contractual essence of
this ins tu on is that it is a voluntary agreement between two consen ng adults, albeit
an agreement in which the obliga ons, rights, and privileges are le largely implicit and
defined, if at all, principally by the State rather than the par es. That the specific acts
required of each spouse are not specified at the me of marriage is hardly unique to
marriage. 116 Another, more fundamental, objec on to the contractual view of marriage
is that the state of loving (or .perhaps being in love) with another is not a voli onal act
and therefore promise to love could be neither intended by the promisor nor believed by
the promisee to cons tute an enforceable commitment. 117 67 All marriages are entered
with the promise that the rela onship should endure for the joint lives of the par es.
O en, however, that promise is broken, and one or both par es seek to dissolve the
agreement. Since marriage is a species of contract, many of the problems inherent in
fashioning an efficient and equitable law of divorce, alimony, and property division are
varia ons and special cases of the difficul es that surface in the enforcement of
commercial contracts. 118 Men and women have much that they can exchange with one
another. Each has sex to offer, although men as a rule value it more. Each has procrea on
to offer. The women as a rule value that more, at least at the specific junctures at which
nego a on takes place - their biological clock has a shorter spring. Then there is physical
protec on and income, of which men typically provide the lion's share. The homemaking
and child rearing are usually more the province of the wife. Although in part their joining
together yields each with a bit of insurance in the form of a source of subs tute
(symmetrical) services, the most vital part of the rela onship centers on the provision of
complementary (reciprocal) services. 119 The drive to form a long-term contract must rest
on some meaningful investment in a "specific" asset. That is an asset whose value is
substan ally diminished if the mutual project comes to a premature end. In the conjugal
rela onship between a man and a woman, by far the most significant, though not the only,
investment in a specific asset is the consequence of procrea on of children. 120Inves ng
in every good child included presents prospec ve costs and benefits. It is the dis nc ve
character and pa ern of those costs and benefits that make children such a peculiar and
"specific" asset. It in tum creates the demand for the ins tu on of marriage. A per nent
ques on arises in this context is, what is it about children that makes them a specific asset
that subjects an investor to severe risk of loss if the conjugal rela onship terminates
prematurely? First, and most fundamentally, both the cost of, and return from, children
span a life me. This long-lived quality of the investment is central to its specificity. This is
because it permits its costs and benefits to be altered by the termina on of the
rela onship. Second, whereas in 68 the past children were something of a good
investment. This was because the parents could expect a financial or at least a material
return on their investment. In modern industrial countries children are principally a costly
consump on good. As a good investment the presence of children would serve to hold
the marriage together and mi gate damages if one party abandoned the other. The party
who le would usually lose the return from the asset. Thirdly, caring for a child may be an
onerous burden to one person but a highly valued consump on ac vity to another and
neither may have correctly an cipated which it turns out to be. Fourthly, the consump on
of children can take a variety of forms that differ systema cally across individuals, between
sexes, and over life mes. These differing forms may or may not require having the child
near for extended periods of me or at all. 121 Fi h and finally, the existence of children
and more importantly their presence in close proximity are valued by their natural parents.
When a conjugal rela onship between a mother and father terminates, each parent may
s ll have significant costs to bear. But much of the an cipated gain of the procrea on may
be lost - or not. The loss can take a variety of forms: access to the children may be reduced
or eliminated; reciprocal paren ng func on may be lost. For example, a mother may find
it more difficult to discipline her children effec vely, or a father may find it impossible to
supply "motherly" love; the financial support for the custodial parent by the non-custodial
parent will be lost. Or homemaking services will be withdrawn; companionship; sexual
services may be lost and so on. 122 The concern with children as specific assets and the
investment in which exposes one to substan al risks, varies across individuals and differs
systema cally between the sexes. Women as a group have a greater concern for and desire
to raise their children when compared to men. This is almost certainly a result of
evolu onary adapta on. It is common to virtually all mammals. Further, women typically
do not wish to undertake the investment of bearing the children of a man unless, and un l,
they have the promise of life me support, commitment, protec on, or whatever else they
take to be the services that a 69 husband would provide. The significance of children as a
specific asset that results in a massive loss at the premature termina on of the conjugal
rela onship is the driving force of marriage. Were it not for the prospect of procrea on, it
is doub ul that the life me pledge of the tradi onal marriage would be anything other
than an anomalous high-risk adventure entered into by a few benighted souls. 123 The
applica on of the general theory of long-term contracts to marriage does not yield any
obvious or op mis c conclusions as to the proper way to structure the marriage
arrangement. The nature of the underlying du es assumed by the marriage partners is
not capable of precise defini on, much less effec ve legal enforcement. Yet the success of
the marriage o en requires the two partners to invest heavily in the rela onship even
though they may be able to salvage li le of their original investment should the marriage
tum bad. To make ma ers more difficult, the roles of men and women are not
symmetrical. It is typically the wife who has more to lose by divorce. Neither ante nup al
marriage contracts nor the various legal regimes of divorce and property se lement offer
much hope for the general popula on. It is difficult, therefore, to suggest with any
convic on a defini ve solu on to the marriage problem. There is much to be said for the
older view that relies on informal and social sanc ons and the good moral sense of the
par es for the greatest protec on of the marriage rela onship. 124 Since the beginning
of the seven es, there have been marked changes in marriage pa erns. The emergence
of widespread cohabita on arouse from eigh es. From the late seven es, the propor on
of births outside marriage began to increase slowly at first and then rapidly throughout
the eigh es, with signs of stabiliza on in the early nine es at about one in three of all
births. All these indicate that there is indeed a decline in marriage. In fact, declining
marriage rates increased child bearing outside marriage. Childbearing has increasingly
been taking place in cohabi ng rela onships. It is now clear that cohabita on is both
sequel and alterna ve to marriage. 125 70 The issue remains as to whether marriage, as
an ins tu on as well as a rela onship, is in some way different and whether it ma ers.
Marriage is a public ins tu on and requires a public declara on of commitment.
Cohabita on on the other hand is almost certainly a more 'private' arrangement, but
whether it amounts to an 'incomplete ins tu on' lacking agreed standards and
rela onships with kin, 126 is another ma er. It may be argued that it is increasingly an
issue as to why people marry at all, given that cohabita on has become a normal prac ce.
The emergence of widespread cohabita on raises large issues for family law and social
policies. Increasingly, the separa on of marriage and parenthood has been reflected in
legal changes. 127 Some mes cohabitants are treated as if they are married, as in the case
of means-tested benefit, and some mes as if they are not, as in the case of insurance-
based benefit. 128Family change and the decline in marriage rates, marital breakdown,
and the emergence of cohabita on, has undermined all manner of legisla on that
assumed existence of two-parent, married couple families and, to a varying degree, the
opera on of the male breadwinner model. 2 4 Yajur Veda 5.17, 441; DEVI CHAND, THEY
AJURVEDA 91 (1980). On the social level, matriarchies are based on a union of extended
clan. The people live together in big clans, which are formed according to the principle of
matrilinearity, i.e. the kinship is exclusively acknowledged in the female line. The clans
name, and all social posi ons and poli cal tles are passed on through the mother's line.
Such a Matri-clan consists at least of three genera ons of women: the clan-mother, her
daughters, her granddaughters, and the directly related men: the brothers of the mother,
her sons and grandsons. Generally, the matriclan lives in one big clan-house, which holds
from 10 to more than 100 persons, depending on size and architectural style. The women
live permanently there, because daughters and granddaughters never leave the clan-
house of their mother, when they marry. This is called matrilocality., see also DAS
MUTTERRECHT & STUTTGART, ENGLISH: MYTH, RELIGION AND MOTHER RIGHT (1861).
The word 'patriarchy' literally means the rule of the father or the 'patriarch', and originally
it was used to describe a specific type of 'male-dominated family'- the large household of
the patriarch which included women, junior men, children, slaves and domes c servants
all under the rule of this dominant male. Now it is used more generally "to refer to male
domina on, to the power rela onships by which men dominate women, and to
characterize a system whereby women are kept subordinate in a number of ways". see
also Abeda Sultana, Patriarchy and Women Subordina on: A Theore cal Analysis, 2 THE
ARTS FACULTY LAW JOURNAL 1-18(2011); BHASIN K, WHAT IS PATRIACHY: WOMEN
UNLIMITED (2006). MARY ANN LAMANNA & AGNES REIDMANN, MARRIAGE & FAMILIES:
MAKING CHOICES & FACING CHANGE 41 (2002). HARCOURT BRACE ADAMS, BERT N. &
SUSZANNE STEINMETZ, FAMILY THEORY AND METHODS IN THE CLASSICS 88 (1993). 71 6
7 9 10 II 12 13 14 15 16 17 18 19 20 E BYRON REUTER & JESSIE RIDGWAY RUNNER, THE
FAMILY: SOURCE MATERIALS FOR THE STUDY AND PERSONALITY 35 (1931). CHRISTOPHER
LASCH, HAVEN IN THE HEARTLESS WORLD: THE FAMILY BESIEGED 41 (1977). RAJAKUMARI
AGARWAL, MATRIMONIAL REMEDIES UNDER HINDU LAW 180 (1974). NOTES AND
QUERIES ON ANTHROPOLOGY, ROYAL ANTHROPOLOGICAL INSTITUTE 10(1951). S.K.
MISHRA, ANCIENT HINDU LAW & PRACTICE (1994). Hindu law regarded marriage as not
indissoluble but also eternal. The sacramental character of a Hindu marriage gave rise to
certain anomalies. The declara on of Manu that "neither by sake nor by deser on is a wife
released from the husband, was hitherto applied only to woman and not to men.
Irrevocability of marriage did not adversely affect the man as Hindu husband could take
any number of wives but a Hindu wife was never allowed to take a second husband. See
RAJAKUMARI AGARWAL, MATRIMONIAL REMEDIES UNDER HINDU LAW 180 (1974). On
reference to Oxford Advanced Learners' Dic onary 1123 (2011), the term polygamy is
derived from the Late Greek word polygamous, which literally means 'o en marrying'. In
popular speech, the term 'polygamy' refers to the simultaneous union of a husband to
mul ple spouses or a prac ce or custom of having more than one wife at the same me.
This meaning is technically incorrect. In its correct and wide sense, polygamy refers to a
marriage, which includes more than one partner. Generally, it exists in two forms: polygyny
and polyandry. Polygyny is when a man is married to more than one wife, whereas
polyandry refers to an arrangement where a woman is married to more than one
husbands. Several commentators in the area use the term polygamy in this technical
sense, referring to an arrangement wherein a man is married to one or more women at a
me. Perhaps one of the prac cal reasons why polygamy came to refer to polygyny is the
fact that polygyny is prevalent whereas polyandry only exists no onally. According to Cook
polyandry is an 'ethnological curiosity.' In his research, Murdock (1949) found it to exist in
only 2 socie es: the Marquesan’s of Polynesia and the Todays of India, see also
KOKTEVDGAARD, POLYGAMY: A CROSS CUTURAL ANALYSIS 2 (2008); CHAPMAN S,
POLYGAY, BIGAMY & HUMAN RIGHTS LAW 11(2011); Cook CT, Reviewed Polygyny; Did the
Africans get it Right?2 J BLACK STUD 232- 250 (2007). AMITESHWAR RATRA, PRAVEEN
KAUR & SUDHA CHHIKARA, MARRIAGE, AND FAMILY IN DIVERSE AND CHANGING
SCENARIO 2(2006). Sri. Anantharaman Aiyengar retreated in the floor of the Parliament
on Sept 17, 1954: "Marriage is essen ally an ins tu on brought about in the interests of
law and order and in the interests of peace and amity and is not merely for the purpose
of sex, not merely for companionship, but it involves produc on of progeny, and we ought
not to leave a legacy which will be liability to the coming genera on. I would like to urge
upon all the members to consider if marriage is not essen ally a human ins tu on. There
are marriages in animals. When we were evolving from the animal stage, promiscuity was
the rule. Here, people say we are introducing a progressive legisla on. I ask you, is ge ng
back to promiscuity progress? Society depended upon the quality of the ci zens, but that
had been ignored. Provision was being made for two par es to come together, if they like,
and to go if they did not. In between, they have created liability for the State to take care
of. Is that right? The provision for separa on was against the tradi ons we have imbibed
and inherited. See also Paras Diwan, Hindu Law of Marriage, Divorce and Alimony, 53 SCJ
264, 261-304(1955). Supra note 5, at 61. Supra note 6, at 276. WESTERMACK EDWARD,
THE FUTURE OF MARRIAGE IN WESTERN CIVILIZATION (1936). H.T. MAZUMDAR,
GRAMMAR OF SOCIOLOGY502 (1966). VINOGRADOFF, GRAMMAR OF SOCIOLOGY502
(1966). B.P. BERI, LAW OF MARRIAGE AND DIVORCE IN INDIA 3 (1982). 72 21 22 23 24 25
26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Shobha Rani
vMadhukarReddi, AIR 1988 SC 121. h p://www.heritage.org/marriage-and-
family/report/how-broken-families-rob-childrentheir-chances-future-prosperity Supra
note 20, at 3 LINDA WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY
MARRIED PEOPLE ARE HAPPIER AND BETTER OFF FINANCIALLY 12 (2001). RAMACHANDRA
VARMA SASTRI, MANUSMRITI 67 (2000). MELVIN.R. MILLER, THAT WOMAN I MARRIED:
MARRIAGE AND THE FAMILY 112 (1986). ERNEST W. BURGESS, SOCIAL ATTITUDES: FAMILY
TRADITION AND PERSONALITY (1920). Supra note 13, at 10. ELAINE HATFIELD G &
WILLIAM WALSTER, A NEW LOOK AT LOVE 148 (1985). JENNIE MCL YNTYRE, STRUCTURAL
FUNCTIONAL THEORY- MARRIAGE AND FMAILY ENCYCLOPEDIA (1966). Supra note 13, at
12. Supra note 24; see also The Witherspoon Ins tute, Marriage and the Public Good: Ten
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W. Bradford Wilcox et al., Why Marriage Ma ers, Second Edi on, Twenty-Six Conclusions
from the Social Sciences, (New York: Ins tute for American Values, 2005); Robert G. Wood,
Brian Gosling and Sarah Avellar, The Effects of Marriage on Health: A Synthesis of Recent
Research Evidence, (Washington, DC: U.S. Department of Health and Human Services,
Office of the Assistant Secretary for Planning and Evalua on, Office of Human Services
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America 2010. When Marriage Disappears: The New Middle America, 104-106
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HISTORY, 67,58-96 (1980). Bangladesh Demographic and Health Survey, NATIONAL
INSTITUTE OF POPULATION RESEARCH AND TRAINING (NIPORT), MITRA AND ASSOCIATES
AND MACRO INTERNATIONAL, (last updated 2009), see also Dyson, Tim and Mick Moore,
On Kinship Structure, Female Autonomy and Demographic Behaviour, 9 POPULATION AND
DEVELOPMENT REVIEW, 39, 35-60(1983). Raymo, James M& Miho lwasawa and Larry
Bumpass, Marital Dissolu on in Japan: Recent trends and pa erns, 11 DEMOGRAPHIC
RESEARCH , 395-420(2004); see also Retherford, Robert. D and Naohiro Ogawa, Japan's
baby bust: Causes, implica ons and policy research, in THE BABY BUST: WHO WILL DO THE
WORK? WHO WILL PAY THE TAXES 5-4 7 (Fred R. Harris ed., 2006). Xeons, Peter and Midea
Kabamalan, Emerging Forms of Union Forma on in the Philippines: Assessing Levels and
Social Distribu ons, 3 ASIAN POPULATION STUDIES,267,263-286. Korson& J Henry,
Moderniza on and Social Change- the Family in Pakistan, in THE FAMILY IN ASIA 32 (Man
Das Singh and Panos D. Bardis eds., 1979 ). Hussain R, A.H. Bi les, Consanguineous
Marriage and Differen als in Age at Marriage, Contracep ve Use and Fer lity in Pakistan,
31 JOURNAL OF BIOSOCIAL SCIENCE 123, 121- 138(1999). CheeHengLeng, Health Care
Corpora on in Malaysia and Implica ons for the reproduc ve Health and Rights Agenda,
paper presented at the CONFERENCE ON POPULATION AND DEVELOPMENT IN ASIA,
THAILAND 20-22 MARCH (2006); see alsoTeyNaiPeng, Trends in Delayed and Non-
marriage in Peninsular Malaysia, 3 ASIAN POPULATION STUDIES, 243-261(2007). MAYNE,
TREATISEONHINDULAWANDUSAGE 101(2014). It inevitably flows that Hindu marriage is a
permanent and indissoluble union. It is the e which once ed, though may be broken by
the death of either of the spouses, can never be united. It is even considered to be
con nuing in the next world. Thus, dissolu on of hindu marriage is not possible, even the
death of the husband, under the pure Hindu Law, will not free her from the sacramental
bond. But in reality Hindu marriage is sacrament in the sense that a wife can never ask for
divorce o for another husband, let her husband be luna c as in the case of MaujiLal v.
Chandrama ,ILR (1911) 38 Cal 700; Amriyhamal v. Vallimangal Ammal AIR (1942)Mad 693;
Bhagwa Singh v ParmeshwariNandan Singh (1942) ILR 52, see also GOOROODAS
BANERJEE, HINDU LAW OF MARRIAGE AND STRIDHAN; See Supra note 58, at 150-163; an
impotent, in 1944,Calcu a High Court a er elaborately examining all the relevant
authori es and texts came to the conclusion that the marriage of an impotent person is
null and void under Hindu law in the decision of Raanmoni Dedi v.Rajendranarain Singh,
(1944) 48 C.W.N. 698. It was submi ed that the marriage of an enunch is also invalid under
Hindu Law: the permission given to the marriage of an 74 63 64 65 impotent and enunch
was due to the reason our sages accorded recogni on to the Nyogya prac ce; now that
the prac ce ofNyogya has become obsolete, and is not recognized und~r the Hind~ Law,
the marriage of enunch is obviously invalid, oraleper, a deserter, a chrome pa ent of
venera! diseases. It is true that in prac ce not very many Hindus prac ce polygamy, and
that there are very few cases of polygamy. A Hindu may not take more than one wife, but,
then, there is nothing to prevent him from taking as many wives as may be possible for
him. Due to this, whatever jus fica on, or explana on we may be able to give, the blemish
on the scared ins tu on of marriage of Aryans will remain. The Hindu Law Commi ee has
summarized the arguments as below: (i) Monogamy is even now the rule in prac ce and
consequently no law is necessary. (ii) If monogamy was enforced by the law for Hindus, it
may drive many of them to Islam which allows four wives. (iii) Among persons carrying on
certain occupa ons, for eg: weavers and cul vators, necessity is o en felt for taking a
second wife in order that the occupa on may be carried on efficiently. (iv) Monogamy will
not work without divorce, and divorce is deeply opposed to Hindu sen ments. (v) The
ancient authori es permit a man to take a second wife in stated circumstances, for
example, when the first wife is barren, diseased or vicious and there is no reason to
deprive men of liberty which is now enjoyed by them. As one witness put it, 'Why should
men be deprived of a vested right which has been enjoyed by them for 3000 years." (vi)
Insistence on monogamy will only lead to increased concubinage. The Hindu Marriage Act
is an Act of the Parliament of India enacted in 1955. The main purpose of the act was to
amend and codify the law rela ng to marriage among Hindus and others. Besides
amending and codifying Sastrik Law, it introduced separa on and divorce, which did not
exist in Sastrik Law. This enactment brought uniformity of law for all sec ons of Hindus. In
India there are religion-specific civil codes that separately govern adherents of certain
other religions. The Hindu Marriage Act provides guidance for Hindus to be in a systema c
marriage bond. It gives meaning to marriage, cohabi ng rights for both the bride and
groom, and a safety for their family and children so that they do not suffer from their
parental issues.The Act was viewed as conserva ve because it applied to any person who
is Hindu by religion in any of its forms, yet groups other religions into the act (Jains,
Buddhists, or Sikhs) as specified in Ar cle 44 of the Indian Cons tu on. However, with the
passage of Anand Karj Marriage act, Sikhs now also have their own personal law related
to marriage Sec.l6 of the Hindu Marriage Act says: Where a decree of nullity is granted in
respect of any marriage under Sec 12, any child bego en or conceived before the decree
is made who would have been the legi mate child of the par es to the marriage if it had
been dissolved instead of having been declared null and void or annulled by a decree of
nullity shall be deemed to be their legi mate child notwithstanding the decree of nullity:
Provided that nothing contained in this sec on shall be construed as conferring upon any
child of a marriage which is declared null and void or annulled by a decree of nullity any
rights in or to the property of any person other than the parents in any case where, but
for the passing of the Act, such child would have been incapable of possessing or acquiring
any such rights by reason of his not being the legi mate child of his parents. Briefly, the
provision lays down that as a precondi on of the marriage that neither party to the
marriage shall have a spouse living at the me of marriage. The plain meaning of this
condi on is that if a person takes another spouse in the life- me of a former spouse, the
second marriage will be null and void. As per Hindu Marriage Act, a pe on for the
declara on that a par cular marriage is null and void can be made only by the par es to
the marriage. No other person can file a pe on for such a declara on. The Act further
provides that-the children of the void and voidable marriages conceived prior to the
passing 75 ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107
108 109 110 Ill 112 113 114 115 116 117 118 119 120 121 SYED AMEER ALI, MUSLIM LAW
269 (1965). NEIL B. E. BAILLIE, A DIGEST OF MOOHUMMUDAN LAW 31 (2010). KUMUD
DESAI, INDIAN LAW OF MARRIAGE AND DIVORCE 129 (1981). MULLA DINSHAH FARDUNn,
PRINCIPLES OF MAHOMEDAN LAW 258 (1905). Ladislas Orsy, S.J., Faith, Sacrament,
Contract, And Chris an Marriage: Disputed Ques ons, h p://www.jstor.org/stable,
visited on 18-3-2013. Ladislas Orsy, S.J. "Chris an Marriage: Doctrine and Law" JURIST 40
(1980). ENCYCLICAL ARCANUM, 10 February, 1880. Supra note 97 Ephesians 5:22. [1866]
1 P&D 130, see also Baindail v. Baindail [1946] P (CA) 122. DR. SEBASTIAN CHAMP APPILL
Y, CHRISTIAN LAW OF DIVORCE 9 (2007). See the Preamble of the Indian Divorce Act 1869.
Though the Act is tled as "The Indian Divorce Act" it applies The Act: The Gaze e oflndia,
Part II, S.l. Exty. No.6 (29-3-1988) Jamshedlrani v. Banulrani, 1967 Mh. L.J. 33. SHIV SAHAI
SINGH, UNIFICATION OF DIVORCE LAWS IN INDIA 33 (1993). !d. at34. AIR 1926 Born. 169.
David Sasson Ezekiel v. NajiaNoori Ruben, 33 BLR 725. KRISHNAMURTHY AIYAR,
MARRIAGE, MAINTENANCE, SEPARATION AND DIVORCE 503 (2010). !d. at 504. GENESIS
2-24. GENESIS 1-24. There has been much discussion in the legal literature of whether
marriage is best understood as a contract rela on or, alterna vely, as a status rela on.
Some commentators have argued that, "because the law, not the par es, defines the
obliga ons of each spouse," the rela onship is truly one of status rather than contract
(Babcock, 1978, p. 564). Also see, Clark (1968), esp. sec on 6.1 at pp. 181-2. Becker G.E
Landes & R. Michael, An Economic Analysis of Marital Instability, JOURNAL OF POLITICAL
ECONOMY, 1185, 1141- 1187 (1977). There are two responses to this objec on. First, we
might reinterpret the marriage vow as a promise to assume risk and pay damages. That is,
each party is promising the other that they will assume the risk that their love for their
spouse dissolves. If that should happen, they accept legal responsibility for the loss to their
spouse. Such risk-assuming contracts are not at all unusual. Life insurance, for example, is
such a contract. Much in the spirit of a marriage contract, a life insurance contract could
be alterna vely worded and interpreted as a promise to keep the insured alive for the
year, or pay damages for the failure to do so. Secondly, a plainer and more basic response
to the objec on of the non-voli onal nature of love is to aver that this is a
misinterpreta on of the meaning of love in the context of the marriage vow. The vow is a
promise not to be in love with one's spouse but rather to act toward them in a manner
that displays love, honor, and respect. Thus it is behaviour that is being promised not
emo on. CARTER. H & C. GLICK, MARRIAGE ANP DIVORCE: A SOCIAL ECONOMIC STUDY11
(1976). Landes E, Economics of Alimony, JOURNAL OF LEGAL STUDIES 37,35-39 (1978).
Dnes A, The Division of Marital Assets, 25 JOURNAL OF LAW AND SOCIETY 338, 336 -364.
For example, a father may gain great pleasure merely from knowing that he has children
or that they are successful, but actually find the children's presence a burden, whereas
the mother may be rela vely indifferent to the success of her children but cherish their
presence close to her. These two considera ons combine to remove the reliability that the
self-interest of one's mate will ensure their performance of the contract. Simply put, they
77 122 123 124 125 126 127 128 may find having children a burden rather than a benefit
or they may find them a benefit without requiring their presence, and so they may suffer
no loss from leaving their home. NEELY R, Marriage Contracts, For Be er Or For The Worse
Marital And Non- Marital Contracts, In PREVENTIVE LAW FOR THE FAMILY 3-11 (J.M.
Krauskopfed.,1979). Eric Posner, Family Law and the Social Norms, in THE FALL AND RISE
OF FREEDOM OF CONTRACT 256 (Frank Buckley ed., 1999); Michael Trebilcock, Marriage
as a Signal, in THE FALL AND RISE OF FREEDOM OF CONTRACT 245 (Frank Buckley ed.,
1999); Elizabeth Sco S & Robert E. Sco , Marriage as a Rela onal Contract, 84 VIRGINA
LAW REVIEW 1225- 1236(1998). CLARK H, LAW AND DOMESTIC RELATIONS (1968). M.
Meuleman, B; Bo erman, S, & Mathijis K (2014) "Tradi onal and Modem Globalisa on in
La n America: A Compara ve Typology'', h p//ssm.com/abstract= 2375072. Nock S.L,
Commitment and Dependency in Marriage, 57 JOURNAL OF MARRIAGE AND THE FAMILY
503-514 (1995). In UK for instance all biological fathers were given the obliga on to
maintain their children by the 1991 Child Support Act. But there exist no general body of
law rela ng to cohabita on in the UK. Furstenburg F.F &Harris.K.M, The Disappearing
American Father? Divorce and the Waning Significance of Biological Parenthood in THE
CHANGING AMERICAN FAMILY: SOCIOLOGICAL AND DEMOGRAPHIC PERSPECTIVES 197-
223 (S.J. South& S.E. TolnayEDS.,1992). 78

Chapter- IV DIVORCE- CAUSES, DESIRABILITY AND PERMISSIBILITY

"What God has joi11ed together, let 110 o11e separate" 4.1 Introduc on In the
contemporary world, marriage is never considered an indissoluble union among any
community in any country. The only ques on is how copiously it is available and how much
it is availed of. A marriage which has broken down irretrievably is not a stable marriage.
The stability of marriage requires that it should be dissolved with maximum fairness; and
minimum bi erness, distress, and humilia on. In most countries, divorces can be sought
only through a legal process. Unlike an annulment of marriage, a divorce does not declare
a marriage null and void. But, the marital status of the par es is cancelled thereby allowing
them to marry again. It usually provides for division of property and plans for custody and
support of the child. Divorce has been considered as a serious social problem and the main
cause of disintegra on of the family. It has far reached consequences with regards to
persons, social ins tu ons, and communi es. It is not an thesis of marriage. In other
words, it is the legal ending of marriage. 2 The present chapter a empts to explore the
causes of divorce; and ascertain to what extent dissolu on of marriage has been permi ed
under various personal laws in India. 4.2 Concept of Divorce The concept of divorce is a
20111-century innova on amongst Zoroastrians in Persia. Today they have a uniform legal
code, the Ayin-nama-ye-Zoroastrian which was adopted by the community around the
mid-thir es. The marriage under Jewish law is not a civil contract but is a rela on between
man and woman involving highly religious du es. Severance of marriage is permi ed only
on substan al grounds. 79 The term divorce is derived from the La n word divor um
which means "to tum aside or separate." Divorce is the legal cessa on of the matrimonial
bond. Divorce (or the dissolu on of marriage) is the final termina on of a marital union,
thereby cancelling the legal du es and responsibili es of marriage and dissolving the
bonds of matrimony between the par es. 3 The legal process of divorce usually involves
issues of alimony (spousal support), child custody, child support, distribu on of property
and division of debt. Divorce is an effect, but not a cause. It is a symptom, not the disease.
Divorce does not break up marriage. It is adultery, cruelty, drunkenness, incompa bility,
the decay, or transfer of affec on etc. that destroy marriages. It is only when marriages
have been completely wrecked, and the par es have discon nued their marital rela ons,
that party’s resort to divorce. The remaining bond created by law, may be dissolved by law
also. Divorce is the annulment of the legal bond on proof of de facto dissolu on of
marriage. 4 In India, the various religious communi es are governed by their own personal
laws. The ins tu on of marriage and divorce are also an outcome of religion. Marriage is
the union of a man and a woman for life. S ll when the marriage has completely broken
down, the formal con nuance of the union would be only a source of misery for the
par es; and of slavery5 • Accordingly divorce in some form or other is prescribed in most
systems of law. Divorce is considered as a necessity, an unhappy by-product of an
ineffec ve marriage. 4.3 Factors Responsible for Divorce Marriage gives pleasure, security,
and peace to the family. The base of the family is made on the marriage; if the marriage is
strong, the family will be happy otherwise the whole family will suffer. The rate of divorce
has been increasing at a fast pace due to increase in social tensions prevailing in the
society. There are many factors which are responsible for divorce in the society. The
important among them are given below: 80 (i) Family structure Joint family or nuclear
families are found in most communi es of the world and they have the cases of marital
disrup ons in different level and ra o. The reasons of divorce under the nuclear family are
sexual or social gap between the spouses due to the job distance, problem in cohabita on,
freedom, out of control from their family, equal status and adjustment problem, and
educa on. There are different tradi ons, value systems, and role-performing prac ces
exercised in joint family structure. New couple may not be sa sfied and feel uneasy to
adjust and adopt in the joint family guided by tradi onal prac ces and value system. 6 (ii)
Lack of communica on Many a mes, couples are unable to express their feelings which
in turn increase the communica on gap between them. Important things are not
discussed with each other which can later become a reason for the arguments between
the couples. (iii) Age at marriage Adolescent marriages is more likely to end in divorce than
marriages that· take place when people are in their twen es or older. This is true for both
white and African Americans a er twenty-six years of age for men and twenty- three for
women. However, age at marriage seems to make li le difference.7 Under Indian law,
except for Muslims, the bride should be eighteen years and the bridegroom is twenty- one
years at marriage. (iv) Sexual ma ers Sexual ma ers also play a major role in the growing
rate of divorce. Sexual incompa bility and dysfunc on have been one of the important
factors leading to divorces in the present scenario. This can also lead to infidelity caused
by one of the partners. 8 81 (v) High expecta ons As Sam Walton said, "high expecta ons
are the key to everything" especially about marriage. Expecta ons and laziness can go
hand in hand when it comes to predic ng whether a marriage will end in divorce. The
woman who buys expensive wedding gown probably will also have very high expecta ons
of marriage. Men and women both make a lot of assump ons when it comes to marriage
and what to expect from a marriage. These assump ons are based on many variables and
problems arise when the outcome (marriage) doesn't meet the assump ons or
expecta ons. Marital expecta ons rarely align with the reali es of what life is like inside
marriage. Communica on and expecta ons play an important role in the outcome of
marriages. Communica on before marriage can bring down any unrealis c expecta ons
about marriage. (vi) Work stress and obliga ons Although not as common as adultery or
financial woes, stress at work place is a big factor that leads couples to mend ways. A
situa on wherein one or both spouses have demanding, all-encompassing jobs can, over
me, lessen or sever the bond that originally brought them together. Spouses who have
either uncommon work hours, such as a night shi , or highly demanding careers, also
result in estranged rela onship later. (viii) Depression Depression can place a dreadful
strain on marriage, especially if it has not been clinically diagnosed. Depression is
characterized by extreme mood swings and a severe detachment from life and the people
around them. People who are depressed o en do not seek treatment. The spouse silently
puts up with the problem, leading to a situa on where in the rela on gets strained every
other day. Depression does not necessarily lead to divorce.9 82 (ix) Addic ons Couples
part ways from their partners because of their habit of drinking alcohol and smoking. This
is one of the most common factors leading to divorce. Many a mes one of the partners
con nues their bad habits which tenibly irritates the other partner. When one spouse
becomes addicted, whether it is to gamble, drinking, the internet, or other, the road to
recovery is o en a long and extremely painful. (x) Financial problems financial problems
faced by the family also cause divorce. It can be that a couple is not on the same page-
financially, meaning one is a spender and the other a saver- and they come to resent each
other because of this fact. O en, income instability drives one or both spouses to a state
of stress and heightened arguments. 10 Money ma ers can cause great amount of fric on
between couples. Different people have different spending habits and that becomes one
of the major reasons behind the ongoing fights which later tum into major reasons for
divorce. (xi) Educa on Level Inequality in educa on between the spouses creates different
ideas and approaches about their lives, ways of thinking and expecta ons. Therefore,
educa on is an important decisive factor in ra ng marital rela onship with regard to
happiness. Generally, the level of educa on of women is found low in comparison to men.
It has been found that level of divorce changes with the level of educa on. Educa on
performs mul dimensional role both in occurrence of divorce or compa bility in marital
rela ons. But it may also be looked. that impact of educa on has helped to collect strength
and ideas against injus ces and has also helped to raise more expecta ons and ambi ons.
(xii) Advanced technology the new age society has presented before individuals large
number of avenues, which enable them to get closely acquainted. There is increased
interac on in the workplace. In the age of mobile telephony and internet cha ng, it is
much easier and simpler to make friends and remain in constant touch with 83 them. The
cumula ve result of all this is that it will result in lesser me for one to spend with his or
her spouse on the one hand and greater interac on with outsiders on the other. This is
one of the major causes for an increase in extra marital affairs and its consequent impact
upon the rate of divorce. (xiii) Incompa bility differences Incompa bility or mismatch is
another important cause of divorce. Incompa bility can be sexual, intellectual and
emo onal. In such cases it is difficult to live with a person who cannot fit with his partner.
Differences vary from person to person and marriage to marriage. (xiv) Present day
posi on of woman Today, women have acquired both economic and poli cal freedom.
She has begun to a ack the pre-exis ng social concep ons as unjust and inequitable. She
has started demanding that there should be consistent and logical morality, a single
standard both for man as for woman. She has rightly point out that all women cannot be
virtuous unless all men also are equally so. There cannot be one standard for male and
another for female. (xv) Ar ficial Insemina on Because of the tremendous progress
achieved in the area of biological science, in recent years, a situa on has been reached
wherein a woman can beget children without sexual gra fica on. If this prac ce is to come
to stay, the very family life which is the basis of human society might get destroyed. The
future course of its development might lead us to a stage when babies are shown and
grown in laboratories and sexual intercourse could be completely divorced from any
procrea ve purpose, indulged in solely to gra fy desire as drinking wine or sugar candy.
11 If this method were to become common new and novel legal problems are botmd to
crop up. (xvi) New kind of sex in macies According to authen c sources, many young
people today are indulging in sexual in macies without gravely endangering their social
posi on. Great 84 intellectuals freely proclaim that sexual rela ons before marriage
should be encouraged and that there is nothing in adultery which should make it a serious
offence. They say that happiness is an inherent right of human beings. The recklessness
and the restlessness which manifest in all sex experimenta ons naturally affect the fabric
and func oning of the family thereby giving rise to an increase in illegi macy and divorce.
It is found that psychological factors are the major perceived causes of divorce.
Psychological factors include problems in communica on which are the most significant
cause towards divorce. Open discussions about feelings that are personally important are
crucial for a cordial rela onship, which is not always prac ced by couples. Some couples
may not put enough importance on premarital issues, only to realize during marriage that
those issues become the source of a major turning point. Proper communica on skills are
important for resolving problems arising during a rela onship. However, many couples fail
to communicate when they are married, and as a result, they reach a point of no return.
Consequently, what starts out as a seemingly insignificant issue later grows into a very
serious problem of major propor ons. Another psychological cause is lack of
understanding which could lead to divorce. There are many misunderstandings that can
be uncovered during the life me of a marriage. This is o en cited as one of the cause of
divorce. It is common for a person's personality to change over me; especially during the
younger years. A change in likes and dislikes in all aspects of the rela onship can be cause
of the couple to dri apart. This is one of the major causes for an increase in extra marital
affairs and its consequent impact upon the rate of divorce. Advancement of educa on and
cultural changes also affects women behaviour. 4.4 Hindu Law on Divorce Divorce was not
recognized under the general un-codified Hindu law. It was rather unknown to the old
textual Hindu law of marriage. Dynamic changes occurred later in the marriage law of
Hindus. The primary objec ve of the Hindu 85 Marriage Act, 1955(HMA) was also to
preserve and protect a Hindu marriage, rather than allow it to disintegrate. Severance of
marriage is permi ed only on substan al grounds. Divorce will not ordinarily be granted
within one year of the marriage. 12 Even where a ground for divorce is made, the court
will have to sa sfy itself (i) that the pe oner is not seeking to take advantage of his own
wrong or disability, (ii) where the pe on is founded on adultery, the pe oner has not in
any manner connived with or condoned the act or acts complained of, (iii) that the pe on
is not the result of any collusion between the spouses or its presenta on is not marked by
any unnecessary or improper delay, and (iv) that there is no other legal ground against
gran ng the relief prayed for. The Hindu Marriage Act, 1955 specifically enumerate the
circumstances wherein the right to divorce accrues subject to the one-year limit of me.
13 However, in cases of excep onal hardship to the pe oner or excep onal depravity on
the part of the respondent, a pe on for divorce may be allowed even a er the expiry of
the said me limit. When carefully analyzed, the statute shows that there are in all fi een
grounds for divorce. When classified they are found to fall into the following three
divisions: 1. Nine grounds based on "fault-liability theory of divorce." These grounds can
be availed only by the aggrieved party. n. Two grounds based on "breakdown theory of
divorce," which may be availed of by any party to the marriage who is aggrieved or who is
guilty. iii. Four grounds which are special and which can be availed of by the wife only. The
following are the specific grounds for divorce: 86 i. Adultery-The act of indulging in any
kind of sexual rela onship (including intercourse) outside marriage is termed as adultery.
14 Proof of adultery by direct evidence is rare and is not necessary. The nature of this act
is such that expec ng direct evidence is not only unreasonable but also impossible. 15Even
a single act of adultery is enough for the pe oner to get a divorce. 16 ii. Cruelty- In
Shobha Rani's case, 17 the Supreme. Court said that the word, 'cruelty' as used in the Act
is with reference to human conduct or behaviour in rela on to or in respect of matrimonial
du es or obliga ons. It is a course of conduct of one which adversely affects the other.
Cruelty may be mental 18 or physical, inten onal, or uninten onal. A spouse can invoke
the ground of 'cruelty' when he/she is subjected to any kind of mental and physical injury
that causes to life, limb, and health. 19 Certain instances include: food being denied, 20
con nuous ill treatment 21 and abuses to acquire dowry/2 perverse sexual act23 etc. iii.
Deser on- Deser on is a ground for judicial separa on as well for divorce. The Supreme
Court in Bipin Chandra v. Prabhawa 24 observed that in every case of deser on there
must coexist: (i) the factum of separa on, and (ii) animus decidendi, i.e. inten on to
forsake the aggrieved party. These two factors may not commence at the same me. One
may follow the other. It should also be remembered that these two elements must subsist
during the whole of the statutory dura on (i.e. two years). 25 If one of the spouses
voluntarily abandons his/her partner for at least a period of two years, the abandoned
spouse can file a divorce case on the ground of deser on. iv. Conversion - If one spouse
has ceased to be a Hindu by conversion to another religion a marriage can be dissolved by
a decree of divorce. The ground of conversion is not available to the conver ng spouse; it
is the other spouse who remains a Hindu that can avail of this ground. 87 v. Mental
Disorder - Mental disorder can be a ground for divorce if one spouse suffers from incurable
mental disorder and insanity and therefore cannot be expected from the couple to stay
together.26 It is a very wide term covering and embracing within its fold different phases
of unsoundness of mind and mental disorder.27 vi. Leprosy - In case of a 'virulent and
incurable' form of leprosy, a pe on can be filed. vii. Venereal Disease - if one of the
spouses is suffering from a serious disease like AIDS that is easily communicable, a divorce
can be filed by the other spouse. viii. Renuncia on- A spouse is en tled to file for a divorce,
if the other renounces all worldly affairs by embracing a religious order. ix. Not heard Alive-
if a person is not seen or heard alive by those who are expected to be naturally heard of
the person for a con nuous period of seven years, the person is presumed to be dead. x.
non-resump on of Co-habita on- becomes a ground for divorce if the couple fails to
resume their co-habita on a er the court has passed a decree of separa on. A pe on
can be filed only by the wife, if the husband has indulged in rape, bes ality, and sodomy.
28Moreover, • if the marriage is solemnized before the Hindu Marriage Act(HMA) and the
husband has again married another woman despite the first wife being alive, the first wife
can seek for a divorce.29 • a girl is en tled to file for a divorce if she was married before
the age of fi een and renounces the marriage before she a ains eighteen years of age.3o
88 • if there is no co-habita on for one year and the husband neglects the judgment of
maintenance awarded to the wife by the court, the wife can contest for a divorce. 31
Further the Act provides for divorce by mutual consent as well. 32 The provision requites
the following: 1. Both par es together should present the pe on to the court;33 n. Both
par es should wait for at least six months from the date of presenta on of the pe on;34
111. The par es may withdraw their pe on during this me; iv. Before the expiry of
eighteen months, they together should make a mo on to the court for passing a decree;
v. A er due inquiries the court shall pass a decree. 4.4.1 Hindu Law on Maintenance The
relief of maintenance is considered an ancillary relief. It is available only upon filing for the
main relief like divorce, res tu on of conjugal rights or judicial separa on etc. Further,
under matrimonial law if the husband is ready to cohabit with the wife, generally, the claim
of wife is defeated. However, the right of a married woman to reside separately and claim
maintenance, even if she is not seeking divorce or any other major matrimonial relief has
been recognized in Hindu law alone. A Hindu wife is en tled to reside separately from her
husband without forfei ng her right of maintenance under the Hindu Adop ons and
Maintenance Act, 1956 (HAMA). The Act envisages certain situa ons in which it may
become impossible for a wife to con nue to reside and cohabit with the husband but at
the same me, she may not want to break the matrimonial e for various reasons ranging
from growing children to social s gma. 89 • Maintenance of Wi {e Under Sec on 24 of
Hindu Marriage Act, 1955, either the wife or husband can apply for interim maintenance.
The basis of the claim for interim maintenance is that the claimant has no independent
income of his/her own to support himself/herself. The provision is silent on the quantum
of maintenance. It is upon the discre on of the court to determine the quantum. Similarly,
maintenance pendente lite is to be provided to the claimant who does not have an
independent income. The financial need of li ga on expenses must be provided by the
other spouse. Interim maintenance is payable from the date of presenta on of the pe on
ll the date of dismissal of the suit or passing of the decree. Interim maintenance is
supposed to meet the immediate needs of the pe oner. And maintenance pendente lite
is for providing the li ga on expenses to the claimant. The Hindu Adop on and
Maintenance Act, 1956 (HAMA) defines maintenance as "provision for food, clothing,
residence, educa on, and medical a endance and treatment." 35 In the case ofunmarried
daughter, it also includes her marriage expenses. The provisions for permanent
maintenance are present in all the personal laws and are substan vely similar. However,
there are some differences between the personal laws. • Grounds for award of
maintenance Maintenance is granted only upon proving that at least one of the grounds
men oned under the Act, exists in the favor of the wife. These grounds are as follows:- (a)
the husband has deserted the wife or has willfully neglected her; (b) the husband has
treated her with cruelty; (c) the husband is suffering from virulent form of
leprosy/venereal diseases or any other infec ous disease; (d) the husband has any other
wife living; (e) the husband keeps the concubine in the same house as the wife resides or
he habitually resides with the concubine elsewhere; (t) the husband has ceased to a Hindu
by conversion to any other religion; (g) any other cause jus fying her separate living; 90 •
Quantum of maintenance The means and capacity of a person against whom the award
must be made should be taken into considera on while determining the quantum of
maintenance*. In fact, in case of the husband, it is not only the actual earning, but also his
poten al earning capacity, must be considered. The presump on is that every able-bodied
person has a capacity to earn and maintain his wife. The income of the husband is a
significant factor to be considered by the court in fixing the quantum of maintenance. It is
disposable income and not the gross income, which is to be considered. Sec on 23(2) of
HAMA states the factors to be considered in determining the amount of maintenance
payable to the wife, children and aged parents. They are as follows - the posi on of and
status of the par es, the reasonable wants of the claimant, the claimant if living separately
is jus fied or not, the income of the claimant and the value of the claimant's property and
the number of persons en tled to maintenance under the Act. Even if one of these
grounds exists in favor of the wife, she will not be en tled to relief if she has indulged in
adulterous rela onship or has converted herself into any other religion thereby ceasing to
be a Hindu. It is also important to note here that to be en tled for the relief, the marriage
must be a valid marriage. In other words, if the marriage is illegal then the matrimonial
rela onship between the husband and wife is non-existent and therefore no right of
maintenance accrues to wife. However, thanks to judicial ac vism, in cases the
presump on of marriage has been given more weightage and the bars to maintenance are
removed. • Maintenance of children Sec on 20 of HAMA imposes an obliga on upon the
parents -mother and father, both equally to maintain the children - both legi mate and
illegi mate. This is a unique feature of the Hindu law where both the parents are equally
responsible to maintain the children. The provision lays down that the children are en tled
to maintenance during their minority. This right of maintenance for the daughter is
extended ll she gets married. The parents are obliged to bear her 91 marriage expenses.
However, even a er marriage if a minor married daughter is unable to maintain herself,
then she can claim for maintenance under Sec on 125 of the Code of Criminal Procedure,
1973 (CrPC). When an applica on has been filed under sec ons 24 and 25 of HMA, 1955,
the children are also en tled to get maintenance, if the claimant has the responsibility of
maintaining them i.e. the claimant's right to maintenance also includes the right of
maintenance of the children. The HMA also provides that in any proceeding under the Act,
the court can from me to me pass interim orders and make provisions in respect of
custody, maintenance and educa on of the minor children. 36 • Maintenance of Parents
Sec on 20 of HAMA also lays down an obliga on of maintenance of old and infirm parents
who are not able to maintain themselves out of their own personal earnings and property.
The HAMA is the first statue in India, which imposes an obliga on on the children to
maintain their parents. The obliga on to maintain is not only limited to the sons, but also
extends to the daughters. Under HAMA, both the mother and the father have equal rights
to claim maintenance. The explana on to this sec on also includes step-mother in the
term parent. However, it is important to note that the sec on imposes an obliga on to
maintain only those parents, who are unable to maintain themselves. Therefore, the
obliga on to maintain the parents other than those infirm and unable is only moral. 4.5
Muslim Law on Divorce Islam is the first religion in the world to have conferred on the wife
a right to divorce their husband. Marriage is a contract under which both enjoy rights and
must shoulder certain responsibili es. The rule governing divorce has been given out in
the following verse of the Holy Quran: "0 Prophet! When you divorce women, divorce
them for their prescribed me, and calculate the number of days prescribed, be care fit!
of your duty to Allah, your Lord. Do not drive them 92 out of their houses nor should they
themselves go forth, unless they commit an open indecency an there are limits of Allah
and whoever the Allah may a er that bring about reunion. " 37"Either retain them with
humanity, or dismiss them with kindness. " 38 Tradi onally, the wife was under no
circumstance en tled to claim a divorce. Later, wives were also given the qualified right to
dissolve marriage. 39The posi on of women under pre-Islamic customary law was the
worst. Prophet Mohammad was the person who improved the status of women. He
restrained the power of divorce possessed by the husbands. He also gave power to the
women to dissolve their marriages on reasonable grounds. Towards the end of his life, he
went so far as prac cally to forbid its exercise by the men without the interven on of
arbiters or a judge. He pronounced talaq to be most detestable before the Almighty God
of all permi ed things.40 Prophet introduced reforms only because divorce prevented
conjugal happiness and interfered with the proper bringing of children.41 The process of
talaq, i.e., divorce by man, is very simple. A husband who is convinced that his marriage
has irretrievably broken down can quietly pronounce a divorce; but which shall not
become effec ve during the period of iddat;42 during which period he can freely retreat.
At the expiry of this period, if he has not revoked the divorce, the marriage is dissolved.
The husband cannot be allowed to play hide and seek with his wife by repea ng
pronouncing a divorce and then either revoking it within the permissible period of iddat
or offering to remarry the same woman a er its expiry. The law provides that a husband
can do so only twice in the whole of his life; whenever during his married life he
pronounces a divorce for a third me, the marriage is instantly dissolved perpetually,
leaving no room either for the revoca on of divorce or for a nova on of marriage by a
fresh solemniza on.43 The rule of no marriage with a triple-divorced wife is meant to be
a deterrent for the ambivalent husband; he should know that a third divorce is the last
word that he can speak regarding the marital bond. It is a pro-wife legal 93 provision meant
to help her out of the clutches of a man who cannot make up his mind about her- and not
in any sense a penalty for herself. A er the third divorce the wife may, and is rather
encouraged to, marry another man. At this stage, then the law thinks of a possible pi able
situa on which this woman may find herself in, incidental failure of her second marriage
too leading to divorce, or its dissolu on by the death of the second marriage. If per chance,
this happens, it may not be so very easy, or even advisable, for the poor woman to seek
marriage with a third man. So, the embargo on her remarriage with the first husband is
li ed and he can marry her, if she agrees. This again is a pro-wife law meant to meet the
extremely pi able exigency of the dissolu on of a woman's second marriage.44 Moreover,
except Islam no other religion of the world gives to the women the right to enter into pre-
nup al agreements. If the Muslim husband fails to observe the pre-nup al agreement, the
wife is at liberty to ask for the dissolu on of marriage. Further a Muslim woman could ask
for the dissolu on of marriage on many grounds: Op on of puberty (Khyarul-Bulugh);
impotence of the husband; husband's allega on of faithfulness against the wife; and
op on of inequality. Ameer Ali,45 Wilson46 and Fitzgerald47argue that Mohammedan
marriage being a civil contract, physical cruelty, deser on, persistent failure to maintain,
contrac on of a loathsome disease, insanity, gr~ss misrepresenta on, and lack of
consensus on a vital ma er would be sufficient grounds for dissolu on of marriage at the
instance of the wife. Out of all the Muslim schools and sub-schools48, only the Maliki
School is favorable to Muslim women. 49 A Maliki Muslim woman can ask for divorce
where: when the husband leaves the wife without means of subsistence; when he
deprives the wife of raiment; when he forces her to beg for living; when he refuses to
provide a habita on for her; when he leaves the conjugal domicile without making any
provision for her; when he abandons her and refuses to visit her; when he treats her with
cruelty; when he beats her without cause; and when he tries to introduce a concubine
into the conjugal domicile. 94 Sharifi schools also permits a wife to dissolve the marriage
if her husband is suffering from madness, elephan asis, or leprosy or if her husband does
not treat her impar ally. Under Hanafi law, insanity, cruelty, and deser on are grounds on
which the wife can ask for dissolu on of the marriage. Under the Hanbali school, a wife
can ask for dissolu on of marriage if her husband has failed to fulfil the agreement which
was entered at the me of marriage. Ithna Ashari school permits wife to seek divorce on
the grounds of insanity, enuchism and impotence50• Under the Ismaili school
elephan asis, insanity, leprosy and qaru (a small tumour like hernia), are men oned as
good grounds for rescission of the marriage. There is cleavage between law and prac ce
in this regard. At present the Muslim husband is free to divorce his wife just by
pronouncing talaq, which is contrary to Quranic injunc ons. In the Quran nowhere, it has
been men oned that a Muslim male may dissolve his marriage by pronouncing talaq three
mes. 51 Ameer Ali52 says: "Prophet Mohammad restrained the power of divorce
possessed by the husbands. He gave to the women the right of obtaining a separa on on
reasonable grounds. Muslim husbands do not possess the arbitrary power to dissolve the
marriage as and when he deems it fit. A large and influen al body of jurists regards talaq
emana ng from the husband as really prohibited except for necessity such as the adultery
of the wife. The Prophet Mohammad himself declared talaq to be the most detestable of
all permi ed things before the Almighty God. The reason is that it is a hindrance to
conjugal happiness and it is very difficult for a divorced woman to give proper educa on
to her children". A divorce becomes necessary only when the husband cannot do his
du es, i.e., when he is impotent or a eunuch. Under Hanafi law, talaq can be of two
types53 i.e., talaq-ul-sunnat and talaq-ul-bidat in Hanafi Law. Talak-ul-sunnat is regarded
as one of the most approved form of talak which is again sub-divided into two kinds, ie.,
talak-ul-ahsan and talak-ul-h3;san. 95 In talak-ul-ahsan,54 the husband should fulfill the
following condi ons: 1. He must pronounce th,e formula of divorce once, in a single
sentence; ii. He must do so when the woman is in a state of purity (tuhr) and there is no
bar to cannibal intercourse nor has there been any intercourse during that state; and iii.
He must abstain from the exercise of conjugal rights a er pronouncing the formula. As far
as talak-ul-hasan is concerned, the husband is required to pronounce the formula three
mes during three successive tuhrs, namely three periods of purity of the wife. When the
last formula is pronounced, the divorce becomes irrevocable. 55 These forms are also
approved by Shias. The talak-ul-bidet consists of (i) three pronouncements made during
single tuhr either in one sentence, e.g., 'I divorce thee thrice', or in separate sentence,
e.g., 'I divorce thee, I divorce thee, I divorce thee'; or (ii) a single pronouncement made
during a tuhr clearly indica ng an inten on irrevocable to dissolve the marriage, e.g., 'I
divorce thee irrevocably!' 56 Under the talak-ul-bidet (Talak-ul-Bain), once a definite and
complete separa on has taken place, the par es so separated cannot remarry without the
formality of the woman marrying another man and being divorced from him. It has always
been a point of dispute amongst the jurist of Muslim law about talakul-biddat as an
unapproved form of talak. The Shias and Malikis have not recognised this form o alaq. It
is only recognised by Hanafis and Shafis. The Muslim law is not, therefore, impar al in
dealing with the two sexes, i.e., male and female. At one place it gives unfe ered right of
divorce to Muslim males and on the other hand, it does not give the same unfe ered right
of divorce to women. On account of this discrimina on, many Muslim countries have tried
to improve the status of women through legisla on. The Tunision code allows a 96 wife to
insist for divorce, whatever the reason may be, provided she is prepared to pay such
financial compensa ons the court may decree. In India, neither Muslim husbands nor
Indian courts recognized the Quranic injunc ons about divorce. To rescue the Muslim
wives, the Bhopal State passed an Act in the year 1931, through which they could free
themselves from the marriage. Later on, the difficul es faced by the Muslim wives were
realized and the Dissolu on of Muslim Marriage Act57 was passed in 1939. This was made
applicable to all wives irrespec ve of their sects under Muslim law. The Act provides
various grounds which may enable a wife to seek divorce from her husband. Muslim
consent is the form of Khula or Mubarat 58 has also been recognized under Islamic law.
59 It is quite evident from the aforesaid discussion that the methods of dissolu on of
Muslim marriage are not adequate, jus fied or reasonable. The law lags far behind the
changes in norms of the society and social values. Realizing these facts, the Supreme Court
of India, in a very recent case60 in 2017, suspended "triple talaq" (or instant divorce)
prac ced by some Muslims, un l the government makes a new legisla on. Three out of
the five judges on the cons tu on bench61 ruled against the "triple talaq," which allowed
Muslim men to divorce their wives simply by u ering the word "talaq" three mes. The
judges observed that the law violated Ar cles 14 and 21 of the Cons tu on of India, which
guarantee equality, and protec on of life and personal liberty respec vely. "This is a
sensi ve case where sen ments are involved. We are direc ng the Union of India to
consider appropriate legisla on in this regard,"62 JS Khehar J. said while announcing a six-
month suspension on the prac ce of the divorce law.63 It is submi ed that the judgment
is progressive because it recognizes that this talaq prac ce is extremely oppressive to
women and not essen al to religious law. Many Islamic countries including Pakistan and
Bangladesh have already abolished this system. The judgment is a par al victory for
Muslim women who had long argued that the "triple talaq" rule violated their right to
equality. 97 4.5.1 Muslim law on Maintenance Nafaqa literally means all those things
which are necessary to support life, such as food, clothes and lodging which a man spends
over his children; in law it means feeding, clothing and lodging; in common use it signifies
food. Maintenance comprehends food, raiment, lodging, though in common parlance it is
limited to first. The main principles of maintenance may be recounted thus: (i) A person is
en tled to maintenance if he has no property, (ii) is related to obligor in prohibited
degrees, or is the wife or child, and (iii) the obligor is able to support him. The obliga on
of maintenance is also hedged by the factor of their economic condi on. • Maintenance
of wife It is incumbent on a husband to maintain his wife, irrespec ve of the fact that, she
is Muslim or Kitabiyyah, poor or rich, enjoyed or unenjoyed, yoimg or old. However, the
wife is too young for matrimonial intercourse she has no right to maintenance from her
husband, whether she is living in his house or with her parents. The husband is bound to
maintain his wife so long as she is faithful to him and obeys his reasonable orders. It is
decided in an interes ng case64 by Strachy. and Badruddin Tyabji, JJ. that disobedient wife
need not to be maintained. Strachy, J., observed: ... "the husband's duty to maintain his
wife is condi onal on her obedience and he is not bound to maintain her if she is disobeys
him by refusing to live with him or otherwise. Only paid occasional visits to husband house,
staying for a night or so returning on occasion to mother's house ... I am clearly of the
opinion that in such circumstances the Muhammadan husband is not bound to give his
wife separate maintenance ... " To some effect the observa ons of Tyabji, J, "it is
impossible to hold that a Mussulman wife defying her husband, refusing to live with him,
and bringing scandalous charges against him, can yet claim to be maintained separately at
the expenses of her husband. Where the marriage is valid and the wife is capable to render
marital intercourse it's the husband's duty to maintain his wife even though she may have
means to maintain herself."65 98 A Muslim wife, if she unjus fiably refuses to cohabit with
her husband, then she loses her right for maintenance. The right of maintenance would
also be lost if the wife refuses to obey the reasonable commands of the husband. But right
to maintenance is not lost if disobedience is jus fied by circumstances or if she is forced
to leave husband's house on account of cruelty so that if the husband refuses to maintain
his wife without any lawful reasons/causes the wife may sue him for maintenance. She is
not however en tled to past maintenance. Maintenance is payable from the date of the
decree unless the claim is based on specific agreement. Where a wife is turned out or ill-
treated so as to make her impossible to stay or live together with her husband, or where
the breach between the wife and husband is irremediable, she is en tled to maintenance
by living separate from him whether the ques on arises u/s. 125 of the Code of Criminal
Procedure 1973 or in a suit for res tu on of conjugal right. To summarize, the wife loses
the right to maintenance in the following circumstances: (a) She is minor and incapable of
consumma on; (b) Refuse free access to the husband at all reasonable mes; (c) Is
disobedient; (d) Never visited his house; (e) Refuses to cohabit with him without
reasonable excuse; (f) Abandon conjugal home without reasonable reasons; (g) Deserts
him; (h) Elopes with another person. The husband and wife or their guardian may enter
into agreement whereby the wife is en tled to recover maintenance from her husband,
on the happening of some special event such as ill-treatment, disagreement, husband's
second marriage etc. But the agreement in the marriage contract that the wife would not
be en tled to maintenance is void. The key considera on is that the agreement should not
be opposed to public policy and Muslim personal law. An agreement between a Muslim
and his first wife, made a er his marriage with a second wife, providing for certain
maintenance for her if she could not in future get on with the second wife, was held not
void on the ground of the public policy. Following are the valid condi ons for an
agreement: (a)If the husband treats the wife with cruelty then the wife has a right to
separate residence and maintained to meet it; 99 (b) If he brings subsequent wife and the
previous wife is unable to live with her, she will get maintenance allowance to live
separately or even at her father's house; (c) If he brings his other wife to the matrimonial
home, she will reside at her father's home and he will give her maintenance. This view was
reiterated by the Kamataka High Court; (d) In case of disagreement with each other, he
will give her maintenance for her separate residence. A er divorce the Mohammedan wife
is en tled to maintenance during the me of iddat and also for the me, if any, that
elapsed a er the expiry of the period of iddat and her receiving no ce of talak. A er expiry
of the period of iddat the enforceability of the order of maintenance ceases. The wife is
en tled to sue for maintenance at her normal place of residence at the me of divorce
and the place where she receives the no ce thereof. Suit by divorced for Hiba-jewels lies
where the wife resides. A widow is not en tled to maintenance out of the estate of her
late husband in addi on to what she is en tled to by inheritance or under his will. Now a
Muslim wife can receive maintenance either through Muslim personal law or through
Crpc. According to the 1986 Act, a Muslim husband's liability to pay maintenance to his
divorced wife extends only ll the Iddat period. Further Sec. 125 Crpc has no applica on
to Muslim women unless both husband and wife consent. Now the judicial posi on has
been cleared by the case of Shamim Bano v. Asraf Khan, wherein the Supreme Court of
India held that Sec. 125 would apply to Muslim women irrespec ve of Mohemedan law's
views on the ma er.66 • Maintenance of Children In case of legi mate children,
maintenance rests upon the father. A father is bound to maintain his sons un l they a ain
puberty and his daughter un l they are married. He is also responsible for the upkeep of
his widowed or divorced daughter, or a child in the custody of the mother. The father is
not bound to provide separate maintenance for a minor or an unmarried daughter who
refuses to live with him without reasonable cause. An adult son need not to be maintained
unless he his infirm. The father is not bound to maintain a child who is capable of 100 c2 )
l_2 1 L1S-:/j being maintained out of his or her own =ap , is poor or infirm (,0 then the
mother is bound to maintain the cheer it is the duty of the paternal grandfather. Under
Muslim law, the father is not bound to maintain illegi mate children. However, under
Sec on 125 of the Criminal Procedure Code, 1973, the father is bound to pay a reasonable
amount even for the illegi mate child. As a ma er of fact, the maintenance of the
illegi mate children has been statutorily recognized in our country; and it is in consonance
with the wholesome policy that the offspring born under such circumstances are to be
provided for and should not be le to the misfortunes of the vagrancy and its a ended
social consequences. It is, however not open to a Court to award maintenance unless
expressly asked for. 4.6 Chris an Law on Divorce The divorce among Chris ans is governed
by The Indian Divorce Act, 1869 and applied to the Chris ans throughout India except the
princely States, former Portuguese and French se lements and certain tribal areas. 67
Par es to a Chris an marriage who approaches the court of law to dissolve the marriage
e may be allowed to dissolve the marriage only on the compliance of the requirements
set out in sec on 10 of the Indian Divorce Act, 1869(an Act which is applicable only to
Chris ans) Sec on 10 of the Indian Divorce Act, 1869 sets forth the grounds on which a
Chris an marriage may be dissolved. A wife may present a pe on for dissolu on of the
marriage to the District Court or to the High Court on any one of the following grounds: 1.
The husband has exchanged his religion of Chris anity for some other religion, a er the
solemniza on of marriage; and he has gone through a form of marriage with another
woman. n. The husband is found guilty of incestuous adultery. 101 111. The offences of
bigamy and adultery are commi ed by the husband during the subsistence of first
marriage. iv. If a er marriage, the husband le his wife and subsequently married another
woman. v. The husband is found guilty of rape, sodomy or bes ality as defined under
Sec ons 375 and 377 of the Indian Penal Code, 1860. vi. Adultery coupled with cruelty. vii.
Adultery coupled with deser on without reasonable excuse for two years or upwards.
Apart from divorce, Chris an women can seek judicial separa on on the grounds of
adultery, cruelty, and deser on without reasonable excuse for two years or upwards.68
Similarly she can also claim res tu on of conjugal rights.69 She is also en tled to alimony
pendente lite from the husband and also to permanent alimony. 70 The Indian Divorce
Act, 1869, required a Chris an husband to prove adultery simpliciter whereas the Chris an
wife to prove adultery with one or other aggrava ng circumstances like deser on and
cruelty. This discrimina on has been taken note of by a few High Courts in India. In Ammini
E.J. v. Union of India, 71 holding the provision invalid, the Kerala High Court observed that
as far as the ground of adultery was concerned husband is in a favorable posi on when
compared to wife since she must prove adultery with one or other aggrava ng
circumstances. Evidently this is a discrimina on based purely on sex. Thus, this provision
is viola ve of Ar cle 15 of the Cons tu on. The court held that qualifying words from the
sec on are uncons tu onal; and thus, wife can sue on the ground of adultery, deser on,
and cruelty. A full Bench of the Bombay High Court in Praga Varghese v. Syryl George
Varghese, 72 held that the different treatment accorded to Chris an women under Sec on
10 is based merely on the ground of sex. Similarly, if one compares 102 the provision of
the other enactments about divorce, it would be clear that the Chris an wives are
discriminated and have been treated differently as compared to wives who are governed
by other enactments. The discrimina on therefore is based on the ground of religion also.
This discrimina on is viola ve of Ar cles 14 and 15 of the Cons tu on of India. Similarly,
if one has regard to the provision’s dealings with protec on of life and personal liberty it
would be clear that the posi on of Chris an women has been rendered most demeaning
as compared to Chris an husbands as also wives governed by other enactments. In the
light of this discrimina on, the Bombay High Court held that the discrimina on as part of
Sec on 10 of Indian Divorce Act, 1869 is viola ve of Ar cle 21 of Cons tu on of India
also.73 In Jorden Deigndeh v. Chopra/4 the court suggested complete reform of law of
marriage and introduc on of mutual consent and irretrievable breakdown of marriage as
grounds for divorce. The court recommended introduc on of changes into the Indian
Divorce Act to bring it in tune with modem condi ons. In view of the clear discrimina on
against the Chris an wives on the ground of religion and sex and since the High Courts of
Andhra Pradesh, Bombay, and Kerala have already struck down the discriminatory
provision, the Indian Divorce Act was amended in 2001 to remove these anomalies. In
Molly joseph v. George Sebas an, 75 the Supreme Court held that the declara on of
marriage to be void by church court, is not sufficient to dissolve a marriage; and not
binding on District Court or High Court. The par es con nue to be under disability to
solemnize second marriage. This view was re-affirmed in Meleparambil shan @ Eliyamma
v. Panakkachalil tamasic Amba joy @ Mathew. 76 Divorce by mutual consent in case of
Chris an couple is now governed by Sec on 10-A of the Indian Divorce Act, 1869.
According to this provision, a pe on for dissolu on of marriage may be presented to the
District Court by both par es to marriage together. They must also prove that: (i) they have
been living 103 separately for a period of two years or more; (ii) they have not been able
to live together and (iii) they have mutually agreed that the marriage should be dissolved.
Further, on the mo on of both the par es made no earlier than six months a er the date
of presenta on of the pe on and not later than 18 months, the Court shall, on being
sa sfied a er hearing the par es and making such inquiry as it thinks fit, that a marriage
has been solemnized and that the averments in the pe on are true, pass a decree of
divorce declaring the marriage to be dissolved with effect from the date of decree;
provided that the par es have not withdrawn the pe on in the mean me. In Saumya
Ann Thomas v. Union of India, 77 the High Court held that s pula on of a higher period of
mandatory minimum separate residence offends the fundamental rights guaranteed
under Part III of the Cons tu on. 4.6.1 Chris an Law on Maintenance a Chris an woman
can claim maintenance from her spouse through criminal proceeding or/ and civil
proceeding. Interested par es may pursue both criminal and civil proceedings,
simultaneously, as there is no legal bar to it. In criminal proceedings, the religion of the
par es does not ma er at all, unlike in civil proceedings. Sec on 36 of the Indian Divorce
Act, 1869 (IDA) are like S.24 of HMA. However, Sec on 36 of IDA differs in the respect that
the maintenance pendente lite and interim maintenance can only be claimed by the wife
and not by the husband. If a divorced Chris an wife cannot support her in the post-divorce
period she need not worry as a remedy is in store for her in law. Under S.37 of the Indian
Divorce Act, 1869, she can apply for alimony/ maintenance in a civil court or High Court
and, the husband will be liable to pay her alimony, as the court may order, ll her life me.
The Indian Divorce Act, 1869 is applicable only to those persons who prac ce Chris anity.
The Act deals with the maintenance rights of a Chris an wife. In Mary v. Varghese, 78 the
High Court held that a wife is en tled to maintenance under Sec.l25 Cr.PC even though it
was the conduct of the wife 104 which has led to judicial separa on. The wife was not
allowed maintenance under the Indian Divorce Act. The court in this case held that an
isolated act of adultery would en tle a spouse to a decree of judicial separa on. In every
case, the Court may make an order on the husband for payment to the wife monthly or
weekly sums for her maintenance and support. The quantum is decided by the court in
exercise of its discre on which the court thinks reasonable. If the husband a erwards
becomes unable to make such payments, it shall be lawful for the Court to discharge or
modify the order, or temporarily to suspend the same. Under Sec on 38 of the Indian
Divorce Act, 1869, the Court may direct the maintenance to be paid either to the wife
herself, or to any trustee on her behalf to be approved by the Court; and may impose any
terms or restric ons. 4. 7 Parsi Law on Divorce A Parsi husband or wife may file a suit to
dissolve the marriage e under the Parsi Marriage and Divorce Act, 1936.79 The marriage
of such husband or wife shall, with the compliance of the statutory requirements be
dissolved. Par es may sue for divorce on any one or more of the grounds provided under
the Act: no consumma on within one year a er solemniza on; unsoundness; pregnancy
per allium; adultery; bigamy; cruelty; venereal disease; undergoing sentence of
imprisonment for seven years or more; deser on etc. 4.7.1 Parsi Law on Maintenance
Parsis can claim maintenance from the spouse through criminal proceedings or/ and civil
proceedings. Interested par es may pursue both criminal and civil proceedings,
simultaneously as there is no legal bar to it. In the criminal proceedings the religion of the
par es does not ma er at all unlike the civil proceedings. If the husband refuses to pay
maintenance, wife can inform the fact to the court. The court can sentence the husband
to imprisonment unless he agrees to pay. The husband can be detained so long as he does
not pay. The Parsi Marriage and Divorce Act, 1936 speaks about the right of wife to
maintenance both alimony pendente lite and permanent alimony. The maximum amount
that 105 can be decreed by court as alimony during the me a matrimonial suit is pending
in court is one-fi h of the husband's net income. In fixing the permanent maintenance,
the court will determine what is just, bearing in mind the ability of the husband, wife's
own assets and conduct of the par es. This order will remain in force if wife remains chaste
and unmarried. In the case of pendente lite and interim maintenance, Sec on 3 9 of the
Parsi Marriage and Divorce Act, 1936 (PMDA) is applicable. According to Sec on 40 of the
Act, the defendant shall pay to the plain ff, maintenance and support for a term not
exceeding the life of the plain ff. The Court may, at the instance of either party, vary,
modify, or rescind any such order in such manner as the Court may deem just. Further, if
the Court is sa sfied that the party in whose favour, an order has been made, has
remarried or, if such party is the wife, that she has not remained chaste, or, if such party
is the husband, that he had sexual intercourse with any woman outside wedlock, it may,
at the instance of the other party, vary, modify, or rescind any such order. 4.8 Divorce
under the Secular Law the Special Marriage Act, 1954, being a secular legisla on, has no
reference to conversion. Apostasy or conversion therefore does not cons tute a ground
for any matrimonial relief under this Act. Special Marriage Act, 1954, being a secular act
is completely silent on this point.80 It is important to note that conversion does not
automa cally affect a marriage e and secondly, it is the nonconvert spouse only who can
seek matrimonial relief on this ground. A spouse who gives up Hinduism and adopts
another faith cannot go to the court and seek any relief on the ground. This is barred even
under the provisions of Sec on 23(1) (a) of the Hindu Marriage Act, 1955, viz., that the
pe oner cannot be allowed to take advantage of his or her own marriage or disability.81
4.9 Conclusion Divorce is much more complex than it appears. Ending a marriage
rela onship is not a one- me event that occurs in a court; it is a process. Usually, a series
of events and behaviours on the part of one or both spouses erode the 106 posi ve
feelings toward one or the other or both. Over a period, one or both marital partners
becomes convinced that the rela onship is intolerable, or at least is not working. There
are usually six phases to complete a divorce: The emo onal divorce centers on the
problem of the deteriora ng marriage. This phase usually takes place over a period, which
varies from couple to couple. The posi ve feelings of love and affec on are displaced by
increasing feelings of anger, frustra on, hurt, resentment, dislike, or hatred, and the
percep on that the posi ve feelings are gone forever. The a ributes that a racted the
couple to each other become less important in the presence of these nega ve feelings. 82
The legal divorce is based on the grounds for divorce. Even if no-fault divorce laws exist,
one or both divorcing spouses usually states reasons why the other is at fault. The law
usually recognizes incompa bility as adequate reason for divorce. This phase of the
divorce process involves the legal documenta on that the couple is no longer married to
each other.83 The economic divorce deals with money and property. For many divorcing
couples, this is the most vola le phase of divorce. Emo ons o en run high when it comes
to dividing material environment. For economic reasons, one or both divorcing persons
may have to move to a less expensive part of town or to a smaller house or apartment.
The psychic divorce manifests the problem of regammg individual autonomy. This simply
means that each of the two divorcing persons must adjust to live alone. Each loses the
part of his or her iden ty that was established as being a part of a married couple. Daily
decisions and ac vi es are now carried out as an individual, rather than as an individual
who is part of a couple rela onships. There are several cases in which par es live separate
from each other for several years and just because one of the par es wants the marital
bond to con nue, there is no way out for the other. 84 107 Some of these phases may take
several years to complete, and some people never finish certain phases. The children must
undergo each phase right along with their parents. Separa on of parents deprives the
children the love of the parents and their longing for family life. The mutual consent
principle has resulted in a tremendous increase in divorce. It is suggested that the court
shall restrict the applica on of mutual consent principle; considering the adverse impact
upon children. Some may, however, argue that parent-hood is not slavery . 85 In mutual
consent divorce almost all statutes prescribe a wai ng period. For Chris ans this period is
longer when compared to Hindus. Several High Courts have held it discriminatory holding
that it is in viola on of the fundamental rights of Chris ans; governed by the Indian
Divorce Act, 1869.86 The Supreme Court has the power to dispense with this statutory
period. In Priyanka Chawla v. Amith Chawla, 87 the Supreme Court, invoking Ar cle 142
has waived this period (cooling period). In other cases, also, the Supreme Court has taken
a similar stand; 88 with a reasoning that when a marriage is totally unworkable,
emo onally dead, beyond salvage and broken down irretrievably; par es must be allowed
to separate. In such cases, compelling the couples to wait for years to get separated, will
increase their agony. 89 However, there is no consistency in this regard.90 2 3 4 Ma 19.6
DEVI CHAND, THE YAJURVEDA 91 (1980). Sebas an Choppily, Divorce under Chris an Law
on Marriage and Divorce, 1 SCJ 13, 13-19 (2000). Also see, Ishwar Singh v. Hukam Kumar,
AIR 1965 All464, As observed by the Allahabad High Court severing all connec ons with
one's wife and permi ng her to remarry any person of her choice is no divorce; divorce
must be obtained through a competent court. A decree of divorce is subject to the
mandatory provisions contained in Sec on 15 of Hindu Marriage Act, 1955. See also
Furzund Hussain v. Janu Bibi, (1878) 4 Cal 588; Furzund Hussain v. Janu Bibi, (1878) 4 Cal
588; Wajid Ali Khan v. Jafar Hussain, AIR 1932 Outh 34 at 38, Talaq is an act of repudia on
of marriage by the husband in exercise of his power which ha!:l been conferred on him.
The term divorce includes all separa on origina ng from the husband and repudia on for
talaq in the limited sense, namely, of separa on effected by use of appropriate word. T.P.
GOPALAK.RISHANAN, R.B.SETHI & C. UNNIKANTA MENON, CODIFIED HINDU LAW 129
(1960). 108 6 7 9 10 II 12 13 14 IS 16 17 18 19 20 21 22 BENTHAM'S THEORY OF
LEGISLATION 222 (1864). The individual theory, the I a tude in the place of the previous
We' a tude that prevailed early is' largely responsible for the increase in divorce in the
West- see ELLIOTT AND MERRILL, SOCIAL DISORGANIZATION 633(1934). There are some
who hold that divorce is sordid and ugly. H.G. Wells maintains that divorce is inhuman
because it involves parading in public essen al private areas of human existence. Yet in
case of divorces which involve children, the State has a valid concern. Fo~ this divorce is
not to be allowed, but there should be a readjusted marriage. See ELLIOTT AND MERRILL,
SOCIAL DISORGANIZATION 751 (1934). Sociological Analysis of Divorce: A Case Study from
Pokhara, NEPAL- BALA RAM ACHARYA; There is increasing evidence that many divorced
families already had these pa erns long before the divorce. Paul. R. Amato, Alan Booth, A
Prospec ve Study of Divorce and Parent-Child Rela onships, Vol. 58 JOURNAL OF
MARRIAGE AND THE FAMILY 357 (1996)and: Jane E. Miller, Diane Davis, Poverty History,
Marital History, and Quality of Children's Home Environments Vol. 59 JOURNAL OF
MARRIAGE AND THE FAMILY 1004 (1997); E. Mavis Hetherington, Roger Cox, and Martha
Cox, Effects of Divorce on Parents and Children, in NON-TRADITIONAL FAMILIES IN
PARENTING AND CHILD DEVELOPMENT 223-288 (Michael E. Lamb ed., New York, NY: L.
Erlbaum Associates) (1982); Judith Selzer, Rela onships Between Fathers and Children
Who Live Apart: The Father’s Role A er Separa on Vol. 53 JOURNAL OF MARRIAGE AND
THE FAMILY 79-102; ALAN C. ACOCK AND DAVID H. DEMO, FAMILY DIVERSITY AND WELL-
BEING (Thousand Oaks, CA: Sage Publica ons, 1994). Chp.5. Allan C. Alcock and K. Hill
Koeltl, Is It Family Structure or Socioeconomic Status? Family Structure During
Adolescence and Adult Adjustment, Vol. 68 SOCIAL FORCES 553-571(1989). Medical
Ins tute for Sexual Health , Sexual Health Today, (Aus n, TX: Medical Ins tute of Sexual
Health, 1997), p.105; William G. Axing and Arland Thornton, The Influence of Parents'
Marital Dissolu on on Children's A tudes Toward Family Forma on, Vol. 33
DEMOGRAPHY 66-81 (1996); Deborah M. Capaldi, Lynn Crosby, and Mike Stool miller,
Predic ng the Timing of First Sexual Intercourse for At-Risk Adolescent Males, Vol. 67
CHILD DEVELOPMENT 344-359 (1996); and recently found by Robert Lerner of the
Heritage Founda on in his analysis only Adolescent Health (unpublished). Michael
Workman and John Beer, Aggression, Alcohol Dependency, and Self-consciousness Among
High School Students of Divorced and Non-Divorced Parents, Vol. 71 PSYCHOLOGICAL
REPORTS 279-286 (1992). Mary Ann Powell, Toby L. Parcel, Effects of Family Structure on
the Earnings A ainment Process: Differences by Gender, Vol. 59 JOURNAL OF MARRIAGE
AND THE FAMILY 425 (May 1997). G.P.R. Tallim Q.C, Ar ficial Insemina on, CANADIAN BAR
REVIEW 27 &166- 187(1956) Sec. 14 ohm, 1955 Sec. 13, Id. Hederson v. Hederson, AIR
1970 Mad 104. It is a consensual sexual intercourse between a married person and a
person of the opposite sex not being the other spouse, during the subsistence of the
former's marriage. PatayeeAmmal v. Manickam, AIR 1967 Mad 254. N. C. Dass v. C.M Dass,
AIR 1982 MP 120. See also Am ita v. Rathore, (2000) 1 HLR 588. Sec. 13 (1) (ia) of Hindu
Marriage Act, 1955. Shobha Rani v. Madhukar Reddi (1988) 1 sec 105, 108: 1988 sec (Cri)
60: AIR 1988 sc 128. Bhagat v. Bhagat, (1994) 1 sec 337; AIR 1994 SC 710; Dastane v.
Dastane, AIR 1970 Born 312. Lini Mohan John v. Mohan John, 2001(1) Ker. L.J 809. Dev
Ram Bilve v. Induma , (2000) 10 SCC 540. Smt. Prana Cha erjee v. Shri Goutam
Cha etjee, AIR 2006 Cal196. Homeshwar Singh v Smt. Misra Singh, AIR 2007 Chh 27.
Savitri Devi v. Ramesh Chan and Ors, 2003 Cri. U 2759; Smt. Rekha v. Harish Ramalingam,
Cri Mise .No. 316/2012 109 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42
43 44 45 46 47 48 49 so 51 52 53 Manisha Sandeep Gade v. Sandeep Vinayak Gade, AIR
2005 Born 180; Smt. Shantabai Alias Gouribai v. Tarachand, AIR 1966 MP 8 AIR 1957 SC
176. Rohini v. Narendra, (1972) 1 SCC 1: 1972 SCC (Cri) 1: AIR 1972 SC 459; Lachman Utam
Chand Kripalani v. Meena, AIR 1964 SC 40: 66 Born LR 297. Ram Narain Gupta v.
Rameshwari Gupta (1988) 4 SCC 247, 253: AIR 1988 SC 2260; see also Rina Roy v. Sa sh
Chandra, AIR 1982 Cal. 138. DR. T. MAHMOOD, HINDU LAW 109(2014). Sec. 13 (2) (ii)of
Hindu Mart1age Act, 1955. Sec. 13 (2) (i) !d. Sec. 13 (2) (iv) !d. Sec. 13 (2) (iii) !d. Sec. 13-
B,Id. Sec. 13-B (1) Id. Sec. 13-B (2) !d. Sec on 3(b) (i) of Hindu Adop on and Maintenance
Act, 1956(HAMA) Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy, AIR 2017 SC
2383 Sec. 26, HMA, 1955 Scru nizing the verse, we find the following condi ons must be
followed before and a er the divorcee: i.Divorce cannot be given without a valid reason.
idiocy will take effect not immediately on pronouncement but a er the expiry of the
prescribed period of me. iii: The wife a er the divorce will not leave the house of her
husband but could remain there ll expiry of the prescribed period of me. . iv.For the
husband, it is mandatory to think over the grave consequences which are likely to follow
as a consequence of divorce. Refer Holy Quran Verve 2:231. Quran, Chapter II, V, p.229.
QURESHI M.A., MUSLIM LAW OF MARRIAGE, DIVORCE AND MAINTENANCE 187 (1993).
AMEER ALI, MOHAMMAD AN LAW 472 (1986). QURESHI M.A., MUSLIM LAW OF
MARRIAGE, DIVORCE AND MAINTENANCE 188 (1993). Iddat means in the case of a
pregnant wife the period ll she is free from confinement, and in respect of all other wives
approximately three months during which at least two mensesfree periods for the wife
would have intervened- the idea being to afford the man a fair chance, or several chances,
to go closer to the wife and in all probability, reconsider his decision. T AHIRMAHMOOD,
THE MUSLIM LAW OF INDIA 72-74(1982). TAHIRMAHMOOD, PERSONAL LAWS IN CRISIS
75-76 (Metropolitan book co. p.1st ed. 1986) Supra note 39, VOL. I (1912). WILSON,
ANGLO MOHAMMADAN LAW 94 (1971). FITZGERALD, MOHAMMADAN LAW 37 (1931).
Muslim law is divided in two schools, i.e., the Sunni and Shia. The Sunni School is divided
in four sub-schools i.e., Hanafi, Maliki, Shaifii and Hanbali. The Shia school is divided into
various sub-schools. The important are lthnaAshari and the Ismailia Schools D. F. MULLA,
PRINCIPLES OF MAHOMEDDAN LAW! (1977); PARAS DIWAN, MUSLIM LAW 60(1982).
ABDUR RAHIM, GENERAL PRINCIPLES OF MUHAMMADAN JURISPRUDENCE 48 (1961);
TAHIR MAHMOOD, MUSLIM LAW OF INDIA 1 (1982), TYABTI, F.B., MUSLIM LAW 81 (1968).
For recent triple talaq case law; See Infra note 60. Supra note 39 According to
TAHIRMAHMOOD, THE MUSLIM LAW OF INDIA 104-105 (3rd edn. 2002). Talaq-e-sunnat,
talaq-e-ahsan, talaq-e-hasan and talaq-e-bidat are not modes' or 110 54 55 . 56 57 58 59
forms' of talaq, as some authors describe them. A talaq is a talaq- these expressions only
refer to the conduct of the man in pronouncing a talaq i.e., whether he has or has not
strictly followed the prescribed rules for it which aim at discussing and keeping him away
from breaking the marriage. The Muslim law prescribes a simple procedure for talaq,
keeping all chances of reconcilia on and reconsidera on open. A talaq strictly following
this procedure is talaq-e-sunnat- a proper talaq. Within the limits of talaq-e-sunnat there
are degrees of virtue in respect of the man's conduct. The more virtuous conduct in this
respect will be ahsan (be er), the less virtuous hasan (fine). A talaq in viola on of the
prescribed procedure is a talaq-e-bidat or bida alaq- an improper talaq See Chandbi v.
Bandesha (61) A.B. 121, when the marriage has not been consummated, a talak in the
ahsan form may be pronounced even if the wife is in her menstrua on. Where the wife
has passed the age of periods of menstrua on the requirement of a declara on during a
tuhr is inapplicable, furthermore, this requirement only applies to an oral divorce and not
a divorce in wri ng. See also, Ahmed Kasim v. Khatoon Bibi (1932) 59 Cal. 833, 141 r.c. 869
(33) AC. 27. FATAWA ALAMGIRI, Vol. 1, p. 492. See also, TAHIRMAHMOOD, THE MUSLIM
LAW OF INDIA 105 (3rd edn. 2002)., talaq-e-hasan means- three talaqs pronounced one
a er the other in three consecu ve tuhrs is indeed a grave distor on, rather making a
mockery of the law. Three consecu ve tuhrs are the minimum period allowed for this
purpose- certainly not a fixed period for it to be followed in every case: A man pronounces
a revocable talaq. He reconciles and resumes cohabita on. A few years later under some
provoca on he pronounces a revocable talaq once again. On recovering from provoca on,
he again resumes cohabita on. Now two talaqs are over. Therea er whenever he
pronounces a talaq it will be counted as the third talaq which will dissolve the marriage
forthwith. (MAULANA ASHRAF ALI THANA VI, BEHISHTIZEW AR, Vol. IV, p.31, translated
from urdu by Tahir Mahmood) MULLA, PRINCIPLES OF MUHAMMADAN LAW 261 (191 h
edn.2003). See also, DR . PARAS DIW AN, MUSLIM LAW IN MODERN INDIA 74 (1st edn.
1977); AMEER ALI, II, 474; Saiyed v. Anisa 1932 PC 25; See Fyzee, 147; Sheikh Fazher v. Aisa
(1929) 8 Pat. 690; Salema v. Sheikh AIR 1973 MP 207. The Dissolu on of Muslim Marriage
Act, 1939. Khula and Mubarat: They are two forms of divorce by mutual consent but in
either of them, the wife has to part with her dower or a part of some other property. In
law it is said is said to signify an agreement between the spouses for dissolving a connubial
union in lieu of compensa on paid by the wife to her husband out of her property.
Although considera on for Khula is essen al, the. actual release of the dower or delivery
of property cons tu ng the considera on is not a condi on precedent for the validity of
the khula. Once the husband gives his consent, it results in an irrevocable divorce. The
husband has no power of cancelling the khul on the ground that the considera on has not
been paid. The considera on can be anything, usually it is mahr, the whole or part of it.
But it may be any property though not illusory. In Mubarak, the outstanding feature is that
both the par es desire divorce. Thus, the proposal may emanate from either side. In
Mubarak both, the husband and the wife are happy to get rid of each other. Among the
Sunnis when the par es to marriage enter a mubarat all mutual rights and obliga ons
come to an end. Grounds for decree for dissolu on of marriage - A woman married under
Muslim law shall be en tled to obtain a decree for the dissolu on of her marriage on any
one or more of the following grounds, namely: (i) that the whereabouts of the husband
have not been known for a period of four years; (ii) that the husband has neglected or has
failed to provide for her maintenance for a period of two years; (iii) that the husband has
been sentenced to imprisonment for a period of seven years or upwards; (iv) that the
husband has failed to perform, without reasonable cause, his marital obliga ons for a
period of three years; 111 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79
(v) that the husband was impotent at the me of the marriage and con nues to be so; (vi)
that the husband has been insane for a period of two years or is suffering from leprosy or
a virulent venereal disease; (vii) that she, having been given in marriage by her father or
other guardian before she a ained the age of fi een years, repudiated the marriage
before a aining the age of eighteen years: Provided that the marriage has not been
consummated; (viii) that the husband treats her with cruelty, that is to say, (a) habitually
assaults her or makes her life miserable by cruelty of conduct even if such conduct does
not amount to physical ill-treatment, or (b) associates with women of evil repute or leads
an infamous life, or (c) a empts to force her to lead an immoral life, or (d) disposes of her
property or prevents her exercising her legal rights over it, or (e) obstructs her in the
observance of her religious profession or prac ce, or (f) if he has more wives than one,
does not treat her equitably in accordance with the injunc ons of the Quran; (ix) on any
other ground which is recognized as valid for the dissolu on of marriages under Muslim
law: Provided that (a) no decree shall be passed on ground (iii) un l the sentence has
become final; (b) a decree passed on ground (i) shall not take effect for a period of six
months from the date of such decree, and if the husband appears either in person or
through an authorized agent within that period and sa sfied the Court that he is prepared
to perform his conjugal du es, the Court shall set aside the said decree; and (c) before
passing a decree on ground (v) the Court shall, on applica on by the husband, made an
order requiring the husband to sa sfy the Court within a period of one year from the date
of such order that he has ceased to be impotent, and if the husband so sa sfies the Court
within such period, no decree shall be passed on the said ground Shayara Bano v. Union
of India& Ors, WP(C) No. 118 of2016. Id.p. 395. Id. para 63 & para 199. I’d. para 200. A v.
B ILR (1896) 21 Born 77. Id Dania/ La fi v. Union of India, 2001 (7) SCC 740; Shakil Usman
Ansari v. Ajju; ana Bano and Ors. 2017 CRLJ 834; Shamim Bano v. Asraf Khan, (2014) 12
SCC 636; Shamima Farooqui v. Shahzad Khan (2015) 5 SCC 705: AIR 2015 SC 2025. As far
as the Travancore-Cochin areas of the State ofKerala are concerned, the Act came to be
extended with effect from 1-4-1951 by the provisions of the Part B States (Laws) Act, 1951.
It may note that there was no law for divorce in these areas prior to 1-4-1951 and the
extension of the Act was made without the informed knowledge of the community. Sec.22
Sec.32 Sec. 36 and 37 AIR 1995 Ker 252 AIR 1997 Born. 349. See Ammini Joseph v. Union
of India, AIR 1995 Ker. 252; Youth Welfare Federa on v. Union of India, 1997 (1) ALD 347,
Swapna Ghosh v. Sadananada Ghos, AIR 1989 Cal. 1. AIR 1985 SC 935 1997 sc 109. 2000(1)
Ker. L.J 754. 2010 (1) ILR Ker. 805. See Infra note 87. 2008(4) KHC 374. Sec. 31 of the Parsi
Marriage and Divorce Act, 1936: suits for dissolu on- if a husband or wife shall have been
con nually absent from his or her wife or husband for the space of seven years, and shall
not have been heard of as being alive within that me by those 112 persons who would
have naturally heard of him or her, had he or she been alive, the marriage of such husband
or wife may, at the instance of either party thereto, be dissolved. 125 Sec on 32: Grounds
for divorce- Any married person may sue for divorce on any one or more of the following
grounds, namely:- ( a) that the marriage has not been consummated within one year a er
its solemniza on owing to the wilful refusal of the defendant to consummate it; (b) that
the defendant at the me of the marriage was of unsound mind and has been habitually
so up to the date of the suit: Provided that divorce shall not be granted on this ground,
unless the plain ff (1) was ignorant of the fact at the me of the marriage, and (2) has
filed the suit within three years from the date of the marriage (bb) [that the defendant has
been incurably of unsound mind for a period of two years or upwards immediately
preceding the filing of the suit or has been suffering con nuously or intermi ently from
mental disorder of such kind and to such an extent that the plain ff cannot reasonably be
expected to live with the defendant. Explana on.- In this clause,-(b) the expression"
psychopathic disorder" means a persistent disorder or disability of mind (whether or not
including sub normality of intelligence) which results in abnormally aggressive or seriously
irresponsible conduct on the part of the defendant, and whether or not it requires or is
suscep ble to medical treatment;] (c) that the defendant was at the me of marriage
pregnant by some person other than the plain ff: Provided that divorce shall not be
granted on this ground, unless (1) the plain ff was at the me of the marriage ignorant of
the fact alleged, (2) the suit has been filed within two years of the date of marriage, and
(3) marital intercourse has not taken place a er the plain ff came to know of the fact; (d)
that the defendant has since the marriage commi ed adultery or fornica on or bigamy or
rape or an unnatural offence: Provided that divorce shall not be granted on this ground if
the suit has been filed more than two years a er the plain ff came to know of the fact;
(dd) [ that the defendant has since the solemniza on of the marriage treated the plain ff
with cruelty or has behaved in such a way as to render it in the judgment of the Court
improper to compel the plain ff to live with the defendant: Provided that in every suit for
divorce on this ground it shall be in the discre on of the Court whether it should grant a
decree for divorce or for judicial separa on only;] (e) that the defendant has since the
marriage voluntarily cause grievous hurt to the plain ff or has infected the plain ff with
venereal disease or, where the defendant is the husband, has compelled the wife to
submit herself to pros tu on: Provided that divorce shall not be granted on this ground if
the suit has been filed more than two years (i) a er the inflic on of the grievous hurt, or
(ii) a er the plain ff- came to know of the infec on, or (iii) a er the last act of compulsory
pros tu on; (t) that the defendant is undergoing a sentence of imprisonment for seven
years or more for an offence as defined in the Indian Penal Code (45 of 1860): if divorce
shall not be granted on this ground, unless the defendant has prior to the filing of the suit
undergone at least one year's imprisonment out of the said period; (g) that the defendant
has deserted the plain ff for at least 1[two years]. (h) that [an order has been passed
against the defendant by a Magistrate awarding separate maintenance to the plain ff, and
the par es have not had marital intercourse for [one year] or more since such decree or
order; U) that the defendant has ceased to be a Parsi [by conversion to another religion];
if divorce shall not be granted on this ground if the suit has been filed more than two years
a er the plain ff came to know of the fact. Sec on 32: Non- resump on of cohabita on
or res tu on of conjugal rights within one year in pursuance of a decree to be ground for
divorce. (1) Either party to marriage, whether solemnized before or a er the
commencement of the Parsi Marriage and Divorce (Amendment) Act, 1988, may sue for
divorce also on the ground,- (i) that there has been no resump on of cohabita on as
between the par es to the marriage for a period of one year or upwards a er the passing,
of a decree for judicial separa on in a proceeding to which they were par es; or (ii) that
there has been no res tu on of conjugal rights as between the par es to the marriage for
a period of one year 113 80 81 82 83 84 85 86 87 88 89 90 or upwards a er the passing of
a decree for res tu on of conjugal rights in a proceeding to which they were par es. (2)
No decree for divorce shall be granted under sub- sec on (1) if the plain ff has failed or
neglected to comply with an order for maintenance passed against him under sec on 40
of this Act or sec on 488 of the SHIV SAHAI SINGH, UNIFICATION OF DIVORCE LAWS IN
INDIA 158 (1993). SRINIVASAN, SPECIAL MARRIAGE ACT (Law publishers India private Ltd.):
See also R. MITRA, MARRIAGE AND DIVORCE LA W(Law publishers India private Ltd. 3rd
ed. 2015). Frustra on Theory: The wedlock may be frustrated for a party to marriage even
though the other party is not guilty of any marital offence. This may happen when he or
she is suffering for mental unsoundness or has changed his religion or renounce the world
or has disappeared for a very long period. If a person prefers Fault Theory: According to
this theory, if a party commits a matrimonial offence the aggrieved party may seek divorce
from the delinquent spouse. It is only the matrimonial offence which is a ground of
divorce. No criminal offence, howsoever heinous, is a ground for divorce. Tradi onally,
adultery, deser on and cruelty are considered as matrimonial offences. Breakdown
Theory: According to this theory marriage has been broken down without any possibility
of repair (or irretrievably) than it should be dissolved without looking to the fault of any
party. JOHN SIRJAMAKI, THE AMERICAN FAMILY IN THE TWENTIETH CENTURY (Oxford
University Press) (1953). Supra note 77. 2016(3) sec 126. Nikhil Kumar v. Rupali Kumar,
(2016) 13 SCC 383: See also, Devinder Singh Natula v. Meenakshi Nangia, AIR 2012 SC
2890; Jigneshkumar Dilipbhai Patel v. Principal Senior Civil Court, 2014 (1) GLR 556.
Amardeep Singh v. Harveen Kaur, 2017 (9) JT 106. Saji Targets v. State of Kerala, AIR 2011
Ker. 119. 114

5.1 Introduc on Chapter- V CONSEQUENCES OF DIVORCE

Demographic and social changes have taken place in the last three decades. They have
brought a dras c transforma on in the concept of family. Since the seven es marriage
rates have fallen steadily while divorce rates have remained rela vely constant, 1 although
more recent evidence shows a slight drop in the rates of divorce? One reason for the
steady decline in marriage rates has been the rise in the number of couples who cohabit.3
There has also been a move away from becoming a parent within marriage to having a
first child within a cohabi ng union. Consequently, non-marital childbirth has increased
significantly. These changes are neatly summarized by Lewis, who said, "over the space of
a single genera on, the number of people marrying has halved, the number ' ' ' divorcing
has trebled and the propor on of children born outside marriage has quadrupled.''4
Children born to parents who are cohabi ng are more likely to see their parents separate
than those children born within marriage. Cohabi ng rela onships that do not convert
into marriage are the most fragile with at least one-fi h dissolving by the me the child is
five years old. Cohabita on is therefore more unstable than marriage and is more likely to
result in separa on and lone motherhood. In 2006, almost a quarter of dependent
children lived in lone parent households compared with seven per cent in 1972. Although
not all lone parent households are formed because of parental separa on, divorce
remains the main route into lone parenthood, whilst the rise in births to cohabi ng
mothers has made an important contribu on because of the higher rate of breakdown in
rela onships within this group. Lone parent families compared with two-parent families,
on an average, tend to be more disadvantaged in terms of poverty and health. Recent
studies reveal that lone parents are consistently worse off in 115 financial terms than
couple families, and are twice as likely as mothers in couple families to describe poor
health. Three quarters of all dependent children live in families headed by a couple; 65
per cent have married parents, and 12 per cent have cohabi ng parents. 5 The first impact
that divorce has on a child is a drama c decline in the standard of living in the custodial
household. Krantz suggests that children belonging to lower socio-economic groups a er
divorce experience greater hardships. The ques on here is whether the hardship leads to
adjustment problems? Some researchers argue that this decline in socio-economic status
is directly linked to a variety of problems experienced by the child, such as psychological
maladjustment and behavioural difficul es in school.6 For instance, Nelson7 found that
family income, rather than marital status, was associated with mothers' life strains and
children's self-esteem. In addi on, it was found that a nega ve rela on exists between
socio-economic status and children's adjustment in post-divorce households. 8 However,
they suggest that economic depriva on, along with a few other factors (e.g., inter-parental
hos li es, burden of single paren ng) take their toll on custodial mothers, which in tum
results in poorer adjustment among children. 5.2 General Consequences As said earlier,
divorce can cause damage not only to the par es to the marriage and their children but
also to the society. In current mes, our society has changed its views about divorce and
now it has become part of family life, despite its nega ve effects. Some of the general
consequences of divorce are discussed below: (i) Structural Changes in Family Status
Divorce permanently weakens the rela onship between children and parents. It leads to
destruc ve ways of handling conflict, diminishes social competence, leads to early loss of
virginity and it diminishes sense of masculinity or femininity of adult of younger age. It
leads to more trouble in da ng, to more 116 cohabita ons, to higher divorce rates later in
life, to higher expecta ons of divorce and to less desire for children.9 (ii) Emo onal
Distance between Parent and Child Even though courts adjudicate about custody and its
dura on, the problem remains complicated. Divorce brings down standard of living which
affects the growth of the children. The emo onal distance between children and parents
increases and may even become permanent. 10 As adults, children of divorced parent
families are half as likely to be close to their parents as children of intact families are. They
have less frequent contact with the parent with whom they have grown up, 11 and have
much less contact with the divorced parent from whom they have been separated by
divorce. 12 (iii) Economic effect Even in Africa and other countries bride price is s ll
prevalent. But unfortunately, in India, the menace of dowry exists even today. In India
par cularly in the northern part almost every day becomes excep onal if there is no
heading in the newspaper on dowry death. In south India also, it is reported that few
castes do follow killing of female infants on immediately a er its birth and the reason
a ributed is the dowry menace. Today the society prefers to hav~ sons rather than
daughters. The general thought of economic prosperity may provide relief to such
murders. Thus, the economic dependence does play an important role when we discuss
about divorce. 13 (iv) Subsequent Marriage Another important consequence is that of the
problem of second marriage/ widow marriage I subsequent marriages. If the children are
le with the mother, the divorced women find it very difficult to get another husband.
Even if a divorced woman gets married to another person s ll there will be problem of
adjustment with the children of her former husband to the children of her second husband
or subsequent husbands. Moreover, the divorced men are almost free from any such
s gma in a country like India and therefore they do not suffer from h . 14 sue
consequences man extreme way. 117 (v) Increase in Crime Rate There are two sides to
ci zenship: fulfilment of ci zenship du es and its opposite- failure and abandonment of
ci zenship du es. The nega ve aspect, the failure and abandonment aspect of ci zenship,
is more widely available in studies of the effects of divorce, and can be seen in crime,
abuse and neglect and drug taking behaviours. Divorce significantly affects the rate of
crime. The increase of crime rate in the society has very clear linkage with increased
divorce rate. Divorce as a direct threat to the society is spreading like a disease. 15 (vi)
Child Abuse Child abuse is in mately related to later delinquency and violent crime, and
here too divorce is implicated. Higher levels of divorce mean higher levels of child abuse.
Remarriage further aggravates child abuse. Serious abuse is higher among step-children
compared with children of intact families. Adults who were sexually abused as children
are more likely to have been raised in step families. The rate of sexual abuse of girls by
step-fathers ranges from six to seven mes as likely, and may be as much as 40 mes more,
when compared with such abuse by biological fathers in "intact" families. Family structure
predicts huge differences in rates of fatal child abuse. Margo Wilson and Mar n Daly
report that children below two years and younger are severity to hundred mes more
likely to be killed at the hands of step-parents than at the hands of biological parents. 16
Child abuse in on increase in almost all States in India. For instance, according to the
sta s cs of the Child Rights Commission, State of Kerala, sexual offences are on a steady
increase. This is based on the number of cases registered in the police sta ons all over the
State. Thiruvananthapuram ranked first in this respect. The most shocking is the fact that
majority of the accused are the near and dear rela ves of the vic m. Sexual abuse against
children is to be viewed seriously and should be prevented and it is the need of the hour.
(vii) Suicide Divorce affects children and parents badly. It can cause damage to their
emo onal, psychological, cogni ve, and physical development. Separa on of 118 parents
deprives them from the love of the parents. They keep on longing for family life and for
the love of both the parents. Higher divorce rates in a society lead to higher suicide rates
among children. Prior to the divorce 'revolu on' of the seventy’s unemployment was the
biggest factor which could be correlated with suicide. But the situa on has changed. The
word~ of Patricia Me Call now shows that the largest demographic indicator of suicide is
the family structure within which the person resides, and· that the divorced family
structure is most dangerous. 17 This link between the rise in adolescent suicide in the past
three decades with parental divorce has been found repeatedly in the literature, 18 and
in cross-cultural studies of Japan and the United States. 19 For the child, suicide is o en
triggered by the child's thoughts that his parents will reject him20 or that they have lost
interest in him.21Such a percep on on the part of the child may some mes be based on
reality and not be just a figment of his imagina on. Z2 The divorced parents also go
through a tough me. The emo onal trauma and depression may ul mately lead to
suicide. (viii) Emo onal Effect Divorce is o en one of the most shocking periods in one's
life. Studies show that it has been the most stressful event, worse than the death of a
loved one. Separa on and divorce are o en associated with deep grief-based emo ons
over the loss of the desire for rela onship. Emo ons may include sadness, lethargy,
depression, anxiety, anger, and other emo ons. The emo onal trauma can be exacerbated
when the couples choose an adversarial approach to the legal divorce, which itself adds
addi onal stresses over and beyond the normal grieving. When in the anger-phase of grief,
it can be temp ng for a spouse to become adversarial, which can easily make things much
worse. Non-adversarial methods of dispute resolu on, such as media on and
collabora ve divorce are less likely to add to the emo onal trauma, and are be er 119
suited when an ongoing rela onship 1s contemplated, such as for future paren ng. 23 (ix)
Medical and Psychological Effect Recent sociological studies have pointed towards a
variety of long-term economic, social, physical, and mental health consequences of
divorce, although the full extent of such effects remains hotly debated. All the studies to
date suffer from an inherent methodological weakness for which researchers have not yet
found a solu on to: establishing the relevant baseline for comparisons. Any list of formal
sociological ar cles on a er effects of divorce would quickly become obsolete, but among
the more accessible are the works by Wallerstein24 and Mavis Hetherington?5 Recent
longitudinal studies have reported that most divorced people are not at all happier a er
divorce. Linda Waite analyzed the rela onships between marriage, divorce and happiness
and reported that unhappily married adults who had divorced were no happier than those
who had stayed married. 26 Some studies report that cohabita on before marriage is
correlated with an increased divorce rate?7 5.3 Impact of Parental Breakdown on Children
The actual ques on of interest is whether being a child of unhappy parents who divorce
is be er or worse than being a child of unhappy parents who do not divorce. Establishing
data for that comparison would require special skills and ability to iden fy the subset of
non- divorced parents who are nonetheless deeply unhappy with each other. Almost all
researchers lack this ability. Children of divorced parents are reported to have a higher
chance of behavioural problems than those of non- divorced parents. Studies have also
reported the former to be more likely to suffer abuse than in intact families, and to have
a greater chance of living in poverty.28 Since all children of divorced parents had lived in
unhappy homes, they unsurprisingly reported numerous unhappy experiences. 120 It is
reported that in cases of extremely high conflict, in terms of ongoing li ga on, anger and
distress, verbal abuse, physical aggression or threats of physical aggression, difficulty in
communica ng about and co-opera ng in child care, or other court-determined factors/9
divorce can be posi ve. Various studies done on this subject have claimed that people who
have been in divorced families have higher rates of alcoholism and other substance abuse
compared to those who have never been divorced. 30 The studies have come out with the
following conclusions about the divorced families: 1. High rate of clinical depression:
family disrup on and low socio-economic status in early childhood increase the long-term
risk for major depression.31 11. Higher rate of formal psychiatric care: studies vary,
sugges ng from 5 to 21 mes the risk, and vary over whether men or women are more
seriously affected. 32 111. Likelihood of suicide: men are more likely to commit suicide at
some point in their lives. 33 iv. Lower life expectancies.34 v. Higher rates of stroke.35 v1.
Low level of recovery from cancer: married cancer pa ents are also more likely to recover
than divorced ones.36 vii. Acute infec ous diseases, parasi c diseases, respiratory
illnesses, diges ve illnesses, and severe injuries. 37 . Heart problems: research suggests
that childhood trauma caused by parental divorce can lead to much greater risk of heart
a ack in later life.38 IX. Combined with job stress, divorce led to a 69% increase of death
rate among men. 39 121 x. Rheumatoid arthri s and osteoarthri s: research reveals a 30%
increase in risk in this regard. 40 Similarly, parental divorce leads to increased risk of
arthri s for children.41 XI. Sexually transmi ed diseases: a baseline survey of HIV-1
infec on conducted in Uganda in 4,000 adults (over 12 years old) showed a twofold
increase in risk of infec on in divorced or separated persons when compared with those
who are married.42 As obvious from the above discussion, the social aspects act as a
double-edged sword. Whatever be the causes of divorce, its effects present the same
issues the world over. Children suffer from loneliness, depriva ons and heartaches. Living
life without mother in the house or father figure in the family can cause serious problems
in all ages of children but par cularly in the adolescent period. The complete social system
go all in vain. Physical and psychological abuse, poor performance in academic life, drop
out from schools are few of the examples of nega ve effects of divorce. It is o en
impossible to separate the effects of divorce, as such, from the effects of the failing home
situa on, because divorce is preceded by marital failure. The child may not be aware of
this, however, some mes the divorce leads to an abrupt and unexpected end to a
rela onship that he had never ques oned. 43The word 'child' is used in various senses.
The law confers certain powers and rights on the parent in respect to the child and saddles
him with certain obliga ons and responsibili es. The term 'child' is generally used for a
person who, on account of his young age, is considered to be of immature intellect and
imperfect discre on and is therefore unable to comprehend the consequences of his own
act. 44 In respect of children in matrimonial proceedings, a guardianship or a matrimonial
court may be required to adjudicate as: (i) children of both the par es; or (ii) children of
either par es; or (iii) children may be legi mate (natural born or adopted) or illegi mate.
Moreover, the term children may be used in three 122 different senses: (i) as a term
deno ng rela onship; or (ii) as a term indica ng capacity, and (iii) as a term of special
protec on under welfare legisla on. There exist patent differences between children who
experience parental separa on and children from 'intact' families with regard to a range
of outcomes including educa onal achievement, behavior, mental health, self-concept,
social competence and long-term health. Children from 'intact' families are least exposed
to the risk of poor outcomes such as poverty, parental conflict, violence and poor
paren ng. Long-term effects include problems such as mental health and well-being,
alcohol use, lower educa onal a ainment and problems with rela onships. There are
significant differences within and across family types, as well. Simple comparisons
between different family types can mask much of the varia on that exists. Step-families,
for example, vary enormously. Children living in a complex step-family has been associated
with more adjustment problems than in a step-family where all the children are related to
the mother. In terms of outcomes, the differences between children within family types
counts. This suggests that family func oning, and not family type, is of greater significance.
Parental conflict has been iden fied as a key media ng variable m producing nega ve
outcomes in children, including those in intact families. 45 Parental conflict may be a
con nuing feature of family life post-separa on, as well as in intact families. Research
comparing intact families experiencing high levels of conflict with lone parent families
found that children fared less well in intact families. This shows that high level of parental
conflict will have a greater impact on the children involved and their overall performance.
This has also demonstrated that family func oning has a greater impact than family
structure or divorce.46 Indeed, research found that 75 per cent of couples experiencing
high levels of conflict chose not to separate. 47 The consequences of impaired family
func oning for children, regardless of family structure, should therefore not be 123
ignored. However, research also indicates the importance of iden fying persistent and
unresolved conflict, rather than conflict per se, as having a nega ve impact on children,
par cularly when children witness domes c violence or where they feel 'caught in the
middle.' Consequently, it has been argued that parental separa on may benefit children
experiencing persistent conflict. But children adjust less well when parental separa on
occurs in the context of low parental conflict. 48 Children who are the subject of
protracted conflict between their parents following separa on, or who feel themselves to
blame for it, are par cularly at risk of nega ve outcomes. 49 There is some evidence to
show that age and gender are variables media ng the impact of conflict on child
outcomes; and boys and adolescents generally fare less well. 50 Children may also be
affected indirectly as a result of parental conflict leading to a reduced capacity to parent
effec vely, thus contribu ng to impaired parent-child rela onships 51 and a higher
likelihood of anxiety, behaviour problems or withdrawal in children. Persistent and
unresolved parental conflict is likely to have a nega ve impact on maternal mental health.
This o en leads to depression, which is a consequent drain on the emo onal resources
required to parent adequately and lower levels of tolerance for 'problem' behaviour in
children. Financial hardship can also func on as an exacerba ng factor, contribu ng to
high levels of stress which will independently have a nega ve impact on mental health.
Family breakdown and the resul ng lone parent status (usually mothers) o en lead to
financial hardship. Majority of lone parents live in poverty, and research has demonstrated
that single parents are more likely to alternate between employment (o en unskilled) and
dependence on welfare benefits. 52 The rela onship between poverty and child outcomes
is well established. Children from poorer backgrounds generally do less well on a number
of measures, such as health and educa onal a ainment, than children from more
advantaged backgrounds. It has 124 therefore been suggested that poverty may be a
significant factor in explaining nega ve child outcomes. 53 Evidence indicates that, in the
majority of cases, family breakdown is followed by a period of lone parenthood and
subsequent re-partnering. Indeed, step-families have been described as the fastest
growing family type. It has been argued that repeated changes in family structure are more
likely to produce nega ve outcomes in children. 54 Children in stable lone parent
households fare be er than children who move through different family contexts, and that
stability is therefore an important variable in explaining child outcomes. 55 Repeated
transi ons in family structure are associated with changes in living pa ern, parental
employment, schools and fluctua ons in income. These factors independently contribute
to adverse outcomes for children. Indeed, evidence indicates that family breakdown is
likely to be transmi ed intergenera onally. 56 It has been argued that young couples are
less likely to have developed the emo onal maturity to sustain an enduring partnership
and tend to experience greater financial hardship and less social support - both factors
that enhance the risk of family breakdown. 57 Compared with children growing up in
intact families, outcomes across a range of measures are poorer for children who
experience family breakdown, and some of these persist into adulthood. For example,
they are less likely to gain educa onal qualifica ons, and more likely to leave home and
become a parent at a younger age. The differences, however, are compara vely small,
with many children not affected, and most children are not adversely affected in the long
term. Nevertheless, some children benefit from parental separa on, par cularly children
who have witnessed or been subject to violence and abuse, or living in households where
there were high levels of parental conflict. The review has shown that dimensions of family
func oning and some socio-economic factors have a greater influence than family
structure on child well-being. Recent research 125 stresses that family breakdown should
be understood as a process and not a single event. Various factors interact in complex
ways through a chain of events and have a cumula ve effect. As Jennifer Weiner stated:
"divorce isn't such a tragedy. A tragedy is staying in an unhappy marriage, teaching your
children the wrong things about love. Nobody ever died of divorce." 58 Only few parents
recognize how consistently the child has been searching for limits, and seeking to fmd the
boundary line between acceptable and unacceptable behavior. Children are good
observers, and as they note weaknesses in the parental system, they respond to their
advantage. The child is not a mere passive object of adult plans. He can and does u lize
his ability to make subjec ve interpreta ons of events. Ausubel indicates that the young
infant's perceptual and cogni ve immaturity tends to insulate him from the influence of
parent a tudes. 59 He summarizes the research: "Birth rank tends to be consistently
related to certain personality traits within a given culture."60 A significant study in the
area of parent-child rela onship was an analysis of the reports of 3 79 American mothers
in regard to child-rearing prac ces from birth to kindergarten age. 61 Interviews were
conducted with the mothers as part of a research project of the Harvard University
Laboratory of Human Development. Parental a tudes were rated in terms of
permissiveness, strictness, warmth, approach to child training, and punishment for
aggressiveness. It was demonstrated in this study that punishment was not effec ve as a
long-term technique for controlling behavior; and that the mother who rewarded and
guided the child had a much be er rela onship and also was more frequently obeyed. In
other words, warmth, guidance, and rewards served to produce effec ve discipline. Miller
and Swanson who did a comprehensive study found it extremely difficult to relate directly
the personality of the parent and the personality of the 126 child. However, they
frequently found a fairly significant rela onship between child-rearing prac ces and the
personality pa ern of the child. 62 In studying the data related to pa erns of child rearing,
it is important to recognize that the underlying basic a tudes of the parents toward the
child are perhaps more significant than any individual prac ce or set of prac ces. The child
is quick to perceive whether the parents really care and are concerned, and his percep on
may have a greater impact upon the rela onship than any set grouping of prac ces. There
are highly significant posi ve consequences to the child's personality from being accepted
and loved. Becker and his associates interviewed parents of normal and disturbed children
and found that authoritarian and arbitrary maternal a tudes were correlated with the
presence of conduct problems in children.63 The aforesaid studies came out with certain
notable conclusions: • The family is the most significant single influence on the
development of the child. The school needs to develop methods to communicate more
effec vely with the family, both to understand the sub-cultural factors the child interacts
with and to a empt to influence the child. • The child's basic a tudes are formed in the
family; hence parent educa on must be given more a en on. • A major role of the family
is to provide the child with a se ng of suppor ng affec on which nurtures development.
• The underlying a tudes of genuine care, valuing, and concern are more important than
any set of prac ces. • Children frequently learn be er from natural consequences, and
not from parents' interven on. 127 • The characteris c emo onal tone of the parents in
training the child affects the meanings which the children acquire. 5.4 Effect of Divorce-
Cri cal Areas 5.4.1 Social and Emo onal Func oning in Childhood In an analysis of the
studies conducted between 1944 and 1998 that compared children from separated and
intact families in respect of social and emo onal behaviour in childhood and adolescence,
it was found that children from separated families were not doing be er than their peers
from intact families. 64 In one example, the Australian Mater Study of Pregnancy, 15
percent of children from divorced families showed withdrawn behaviour at age five,
compared with 10.3 percent of children from intact families. 65 There is, however no clear
pa ern across the range of outcome measures used in. these studies, with differences of
similar magnitude being found for a diverse range of behaviours including bed-we ng,
withdrawn behaviour, social a en on problems and other mixed sociaVemo onal
problems. The analysis by Pryor and Rodgers showed there was no indica on of any trend
in effect sizes from earlier-born or later-born cohorts, any systema c differences between
younger and older children and no evidence for a difference across UK, USA and Australia.
66 Results of other studies not included in the analysis performed by Pryor and Rodgers
show that the risk of poor social adjustment is higher for children whose parents are
separated or divorced. 67 Among other things, children from divorced families exhibited
increased problems: associa on with an -social peers, earlier commencement of sexual
ac vity, teenage pregnancy, substance abuse etc., due to reduced parental monitoring and
quality of paren ng and less effec ve coping skills. 68 5.4.2 Educa on and Socio-Economic
Outcomes in Adulthood All but one of the 23 separate studies69 conducted between 1957
and 1999 included in Pryor and Rodgers' analysis found that children from separated
families were disadvantaged in respect of educa on and socio-economic 128 outcomes.
In one of these early studies, it was found that thirteen percent of children from separated
families had poor school grades compared with seven percent from intact families. 70 In
another US study, McLanahan and Sandefur found that sixteen percent of children
dropped out of high school from separated families compared with nine percent from
intact families. 71 Evans, Kelly and Wanner also found that children from separated and
divorced families were more likely to drop out of school, even when socio-economic
factors were considered. 72 Reasons for this higher rate of school drop-out and lower
a ainment levels include the adverse impact of parental conflict including anxiety and
depression; reduced parental encouragement, support, and control; and less commitment
from step-parents. School dropout and delinquency are among a host of other possible
problema c health and wellbeing outcomes that had an increased likelihood for children
following parental separa on, when compared to children of intact families. 5.4.3 Physical
Health and Development in Childhood and Adulthood The nature of outcomes in this area
ranges from the use of health services in early childhood, for example immuniza ons,
visits and hospital admissions for accidents and self-reported illness and disability in
adulthood. A typical study found that 17.5 percent of children from separated families had
suffered an accidental injury in the past year compared with 13.4 percent of their peers
from intact homes. 73 An Australian study found that the children with separated parents
were less likely than their peers to have received common childhood immuniza ons. 74
Parental separa on and divorce places children, par cularly very young children at greater
risk of death. About 25 children are killed by a parent, each year in Australia, with children
under the age of one at greatest risk. Significantly, the research shows that the most
prevalent context detected in the incidences of filicide in Australia and overseas is the
result of the actual or impending separa on from the other parent.75 Of the few studies
on the nature of community agency involvement with parents who go on to kill their
children following 129 separa on and divorce, there is some evidence to suggest a
tendency among professionals to minimize or ignore signs of mental illness on the part of
the perpetrator in this context. There is also some evidence to suggest that although
professionals might be a uned to the mo va ons and percep ons of mothers who kill
their children, there appears to be a lack of sufficient knowledge to iden fy and respond
to fathers who separate on apparently amicable terms, but are feeling depressed, isolated,
or psycho c following the separa on, and who kill their child, or children, in this context.
76 Much of the literature ci ng separa on, alongside a range of other factors such as a
prior history of domes c violence77 and child abuse as enhancing the risk of further
serious assault and the chance of homicide of the woman, has tended to focus on
incidences in which the father's residence status was an issue before the courts. 78
Parental separa on and divorce can lead to subsequent child abuse. Parental separa on
does not always put a stop to child abuse, as a parent who ends marriage in order to
protect their child might imagine. 79 Even more disturbing is the finding that child abuse
can occur for the first me a er separa on, an occurrence more frequent than abuse
before separa on. In addi on, many of the ramifica ons of parental separa on and
divorce, such as lower income levels, reduced physical and mental health, and housing
problems, are also factors associated with child abuse. 80 With an abundance of studies
looking at the effect of parental separa on and divorce on the wellbeing of children in
other areas, there does seem to be a lack of studies looking at the effect on physical health
and development. From this research it can be seen that for some children, the period of
post-separa on is more dangerous than when their parents were living together. 5.4.4
Mental Health and Well Being in Adolescence and Adulthood Children from separated
families compared with those from intact families are at higher risk of a host of
problema c mental health and wellbeing outcomes 130 including depression, anxiety,
aggression, and delinquency. 81 They have more emo onal problems as adults, 82 and
are less sa sfied with different social and family related aspects of life.83 There is a body
of evidence that the emo onal effect of parental divorce on children con nues well into
adulthood. 84 Both cross-sec onal and longitudinal research up to 20 years a er parental
divorce has shown important differences between children of divorced and intact families
in this · area. In a longitudinal study, Cherlinet a/ were the first to prospec vely model the
longitudinal trajectories of depression among children of divorced and intact families. 85
Their results indicated that parental divorce con nued to have a nega ve effect on
emo onal wellbeing when par cipants were aged in their twen es and thir es. 86 An
eleven-year longitudinal study 1 extended the work of Cherlin et a/ by making more
frequent assessments during J adolescence and early adulthood. 87 The five important
findings of this study were: i. Depressive symptoms increased during mid-adolescence and
then declined in late adolescence to young adulthood, especially for females; ii. Compared
to males, females experienced a greater number of depressive symptoms; m. Children
who had experienced parental divorce by age 15 demonstrated a sharper increase in
depressive symptoms; iv. Stressful life events that the children experienced shortly a er
parental divorce mediated the effect of parental divorce on depressive symptoms; and
finally, v. Stressful life events, par cularly those related to rela onship and personal loss,
were significantly associated with the trajectories of depressive symptoms. 88 131 Ross
and Mirowsky89 emphasized that the total effect of a parental divorce appears to be
influenced by low socio-economic status and problems in interpersonal rela onships. 90
Building on this research, Amato and Sobolewski showed three media ng paths: (i) socio-
economic status (educa on and income); (ii) instability in rela onships (marital status and
previous marital history) and (iii) the quality of the parent child rela onship (bonding with
the mother and the father). Such results, showing that the detrimental effect of divorce is
mediated by the stressful events occurring around the me of the divorce, suggest that it
is these secondary stressors triggered by parental divorce that put individuals at
heightened risk of developing depressive symptoms over me.91 5.4.5 Family and
In mate Rela onships in Adolescence and Adulthood The findings of Pryor and Rodgers'.
92 analysis of nineteen studies rela ng to family and in mate rela onships in adolescence
and early adulthood between 1961 and 1999 were that the effect sizes for related
outcomes were larger than for all of the previous areas covered, indica ng a significant
difference in outcomes for children of parental divorcee compared to children from intact
homes. Measured outcomes included teenage birth, pre-marital pregnancy and pre-
marital fathering, le home by 18 years, sex before 17 years, never married, marital
happiness, marital problems and own divorce or separa on. Typical findings include study
which found thirteen percent of women from divorced families of origin had a birth
outside marriage, compared with five percent of women from intact original families. Also
the UK Na onal Survey of Sexual A tudes and Lifestyles found that 15 percent of men
from divorced families had their first child before the age of 22, compared with eight
percent of men who had not experienced parental divorce. 93 Looking across the outcome
measures, the effect sizes were larger for having children at a younger age than for
entering partnerships (including marriage) at an early age, or for self reported quality of
marital rela onships, with the largest effect sizes being for own divorce in adulthood.94
132 These studies showed similar effect sizes over different cohorts, different countries,
and for males and females. Several recent studies have focused on family and in mate
rela onships in adulthood of individuals who experienced the divorce of their parents as
children. Ahron inves gated the long-term implica ons for family es of children whose
parents had divorced by interviewing grown children twenty years a er their parents'
divorce, and found that the parental divorce con nued to impact the family system into
adulthood by exer ng a strong influence on the quality of family rela onships.95 Most of
the children experienced remarriage of one or both parents over the course of twenty
years, and one third of these remembered the remarriage as more stressful than divorce.
Of those who experienced the remarriage of both parents, two thirds reported that their
father's remarriage was more stressful than their mother's. Also, when children's
rela onships with their father deteriorated a er divorce, their rela onships with their
paternal grandparents, stepmother and step siblings were distant, nega ve or non-
existent.96 A related area is the influence of parental divorce on the a tudes of adults
towards their own in mate rela onships and the circumstances surrounding these, such
as co-habita on prior to marriage. In a study inves ga ng the direct and indirect
influences of parental divorce on adult children's a tudes towards cohabita on,
Cunningham and Thornton found that parental divorce during childhood increased
children's support for cohabita on at the age of 18 and the influence is greatest when the
parent's divorce is followed by remarriage. The proposed influence of the parental divorce
is par ally transmi ed by parents' a tudes about cohabita on, parents and children's
religious involvement and children's sexual behaviour during adolescence.97 With respect
to family and in mate rela onships, researchers from a variety of disciplines agree that
children with divorced parents have an increased risk of encountering a variety of
problems in early adulthood, including weak es with parents and rela onship
instability.98 It goes without saying that for many children who experience parental
divorce, the immediate distress surrounding 133 parental separa on fades and these
children do not go on to develop senous problems in adulthood.99 However, the finding
that divorce presents certain risks and con nues to affect children into adulthood has
been replicated so frequently (and by the same researchers) that more research on the
processes that link parents' marital distress and their children's long-term outcomes is
clearly warranted. 5.4.6 Economic Func oning Financial arrangements have an important
impact on the economic and social well-being of family members' post-separa on. Money
can be a central issue before, during and a er a divorce, and while money itself may not
be the basis for bi erness and conflict, it may become the ba leground. 100 There have
been several studies that have addressed the significance of money in understanding the
impact on children of divorce. These studies have shown that the divorce of their parents
leads to a loss of economic resources for children. Economic hardship following parental
separa on and divorce has been associated with nega ve outcomes for children. Recent
works suggest that besides parental conflict, it is the economic fallout from divorce that
drives many of the nega ve consequences of divorce for children. Importantly, as with
many of the se lement decisions made by parents in the process of divorce, children
rarely play an ac ve role in financial decisions. The new family law legisla on in Australia
emphasizes shared parental responsibility. Under the Child Support Scheme, it is likely that
property will be more evenly divided. Moreover, the fathers' child support liability will be
reduced and spousal maintenance may become even rarer. More separated parents are
entering into shared me arrangements, but shared care arrangements o en do not last
in the longer term, with longitudinal data sugges ng the rela ve fragility of shared me
arrangements, with the tendency over me being for children to eventually live with one
parent, usually their mother. 101 Belinda Fehlberg in her research on the implica ons of
such issues considered the impact of change·s in shared care over me on financial 134
decisions made at separa on. Her findings, which are yet to be published, hope to enable
separa ng couples, their advisers and courts to make financial se lements which reduce
the poten ally adverse financial and social impacts of postsepara on financial
arrangements on children and the social security system. 102 In interviews with children
from post-divorce families, Haugen found that children had observed and thought about
their parents' nego a ons of child support, that children were also concerned about their
own money, and some even had an economic posi on autonomous from that of their
parents. According to Haugen, researchers who studied the effects of divorce on children
have not paid much a en on to how children themselves understand and explore
ques ons of money, a gap in the literature to date. 103 5.5 Conclusion Much of the current
debate about appropriate means to correct longstanding deficiencies in the organiza on
and delivery of child welfare services stems from differing views on the appropriate scope
and func ons of the child welfare field. The strategies for reform now in vogue are directed
towards the exis ng services, although there are some a empts to redesign service
delivery pa erns. There appears to be no movement towards a redesign of the ... child
welfare service system per se or toward broadening its responsibili es. The primary
groups targeted and focused by this system con nue to be the most troubled and
troubling families and since the problems experienced by these families are not perceived
as manifesta ons of normal, universal needs, interven ons are organized on a case-by-
case basis. Such an orienta on can only be characterized as a "minimalist" a tude, in
which services are targeted towards the most deprived families and children in society:
104 This minimalist view has been challenged by some scholars who advocate for a much
broader concept of child welfare and for a broader reform agenda for the child welfare
field. They begin with the assump on that all families and children need societal supports
in their homes and communi es and contend that the inability of families to secure the
basic services and supports in their homes 135 and communi es necessary to relieve the
pressures of daily living, o en creates the need for a residual child welfare system
concerned primarily with the out of home care of children. “They urge the development
of "social u li es"-the social programs needed to enhance family func oning in modem
industrial society and available to all ci zens regardless of income or case-defined need-
as well as the expansion of case services for families experiencing special difficul es.
Ideally, these programs would be part of a free-standing, universally accessible, personal
social service system designed to enhance the caretaking and socializa on capaci es of all
family~'. 105 However, the minimalist strategy prevails. Despite the increased recogni on
of the need for preven on and early interven on, services in the child welfare field
con nue to be organized on an individual case basis for those determined to be in the
greatest need. Current efforts to improve the child welfare system are designed to reduce
the too readily available op on of placement while maintaining the basic goal of
protec ng children at risk of serious and imminent harm. This represents a shi in
emphasis f"Puthe current system, but it does not cons tute a basic reform of the field of
child welfare. The child welfare field's effort to work more closely with children and
families on the verge of deteriora on has quickly been defined as the development of
"preven ve" services. The evolving works with families and children "at risk" might be said
to approximate more closely, secondary preven on ac vi es that are aimed at early
detec on, diagnosis, and treatment of social problems. The range and scope of services
needed to iden fy, reach, and help all families in trouble are well beyond the capabili es
and resources of the current child welfare system. There are no clear criteria for defining
what "at risk of separa on" means. The development of clear criteria has been iden fied
as a major need in. the field, 106 as the absence of clear guidelines represents a major
obstacle to planning new services or redirec ng current efforts. This orienta on does,
however, provide conceptual clarity in that it directs prac ce to view the family system
itself, not simply the child, as the primary target. This implies that agency 136 services
should strive to assure that all members of the family unit par cipate as fully as possible
in developing service plans and that, consistent with the respec ve civil and legal rights of
each individual member, the family as a unit should be viewed as the major beneficiary of
services. Child welfare services have tradi onally been classified as suppor ve,
supplementary, and subs tute forms of care. The dis nguishing characteris c of these
services is the degree to which extra-familial resources are required to carry out the
ac vi es, tasks, and func ons necessary to insure adequate child rearing. Suppor ve
services have been described as services designed to reinforce, support, or strengthen the
ability of parents and children to carry out the responsibili es of their respec ve roles in
the family constella on more effec vely. They o en are thought of as services to the intact
family. The agency is not assumed to have any responsibility for discharging the role
func ons of either parent or child. 107 Parent and child coursing, advocacy, and brokerage
have customarily been viewed as the major components of suppor ve services. Child
welfare I workers have long u lized all the tradi onal models of social work prac ce
(casework, group work, and community organiza on) to help families in need. More
recently many have also begun to experiment with different models of family therapy,
family life educa on, and crisis interven on counselling as forms of suppor ve services.
Divorce is inarguably1 intensely distressing for children. 108 Outside the realm of family,
because of the s gma za on of divorce, the child faces a tough me a emp ng to be
accepted by a conserva ve society. 109 In socioeconomic a ainments, children who
experience their parents' divorce have lower educa onal prospects than children from
intact homes. 110 Within the family, the obvious effects are on the l behaviour of the child.
111 There are also children who are le in a guilty conscious in biological post-divorce
period especially if they are a frequent witness to the parent's feuds. 112 They are le
thinking what is that they did to cause the divorce. 137 Moreover, in older age groups the
assump on of hyper-maturity is also common, as children o en assume the tasks of adults
to stabilize the custodial parent's household. 113There is also a reciprocal dependency
rela onship between the child and the single parent, which is in 90 percent of the cases)
the mother. This principally relates to a closer rela onship between the parent and the
child more as peers, both struggling to keep the family going. 114 A lack of genera onal
boundaries means a less hierarchical family and less authorita ve genera onal
dis nc ons. This is understood to inadequately socialize children or place them in a
disadvantageous posi on when they find themselves in hierarchical organiza ons. 115
Lack of money poses a problem in post-divorce households. To begin with, about thirty-
five percent of the children of divorced parents live in poverty. 116 Child support payments
and financial assistance when not paid put much pressure on the custodial parent. 117 On
the other hand, wealth increases access to posi ve opportuni es and decreases the
likelihood of nega ve traumas, such as transporta on difficul es, serious illness without
adequate medical care. 118 Some may dismiss the argument of financial resources as
being irrelevant to children's posi ve experience as 'idealis c.' However, researchers have
maintained another viewpoint that the importance of wealth tends to be overes mated
in rela on to other factors and the possession of wealth can itself serve as evidence lack
of parental commitment. 119 Step-families o en proved to be very complicated as
children find it difficult to adjust with the step-parent and the extended step-family.
Ini ally the child may prove to be obs nate in adjus ng, but it is possible for the new
family to become a strong family unit. 120 The new family must take things very slowly,
especially the spouses, to help the child cope up with his/her life just like themselves. 138
Children learn how to relate to others by watching their parents relate to each other.
Divorce gives them an unconscious no on of not trus ng their mates. 121 Divorce also
significantly increases the chances of young people leaving. their homes due to fric on
with a parent, increases the chances of premarital cohabita on, and the odds of
premarital pregnancies or fatherhood. 122 In the light of effects of divorce of parents on
their children, it is important to note that children are interested and affected par es in a
divorce ac o~J though they are not directly involved in the divorce proceedings. 123 When
parents resort to divorce the rights of a child in the companionship and care of the parents
inarguably becomes significant. Divorce is considered as a sin and an inevitable disaster. It
cannot be avoided, but the consequences can be diluted. One way of dilu ng the
consequences is by trying to help the children overcome the evil effects of divorce and by
improving their competency and thereby enabling them to surpass the stress of discord.
The children of divorce must be empowered so that they can overcome the evil
consequences of divorce. This requires the assistance of their parents. Research findings
demonstrate that children expenence life in a family with divorced parents in the same
way, whether they are living with their mother or their father. As indicated by the studies,
living with divorce is difficult and having support is needed. However, there is "llack-of
resources and support for families living with divorce. Children need to feel supported and
accepted by both their parents, along with feeling accepted by their community.
Longitudinal research is needed on how children perceive life in the custody of fathers and
on joint custody with equal me-share. Although children do not have control over the
divorce, parents may help to minimize the nega ve effects of divorce on children by
facilita ng healthy adjustment. Divorce makes children grow up in an economically
depraved situa on and in an unsafe atmosphere. Marriage is considered good and divorce
bad 139 when the ques on of nurturing children is asked. But this need not be always
true. As far as the children of divorce are concerned, the divorce of their parents is a
disaster from their point of view. It is not easy to overcome the consequences of such a
disaster and the scars and wounds never really heal during their en re life me. It is for
the parents to see that their divorce will not create a permanent harm to their children.
When the parents fail, it becomes the duty of the State to intervene and fix responsibility
on a failing parent. When the state cannot fix responsibility on a failing parent death,
incapacity etc., state shall shoulder the responsibility; as provided under child support
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Mueller, C. W. and Pope, H, Marital instability: A Study of its Transmission Between
Genera ons, 39 JOURNAL OF MARRIAGE AND THE FAMILY 83-93(1997).
h ps.www.goodreads.com/quotes/283223-divorce-isn-t-such-a-tragedy-a-tragedy-s-
sayingm-an. D. AUSUBEL, THEORY AND PROBLEMS OF CHILD DEVELOPMENT (New York:
Grune& Stra on, Inc., 1958). I’d. R. SEARS, E. MACCOBY, AND H. LEVIN, PATTERNS OF
CHILD REARING (New York: Harper & Row, Publishers, 1957). Russ Andrew Mahan,
Childhood Dependency and Parental Acceptance of Caretaking Roles, Ph.D. Thesis, p. 24.
h p://libdr.iastate.edu/cgi/viewcontent(g)? Ar cle=47618 context. W. Becker, et al,
"Factors in Parental Behavior and Personality as Related ·to Problem Behavior in Children,"
23 JOURNAL OF CONSULTING PSYCHOLOGY 107-87(April 1959). JAN PRYOR & BRYAN
RODGERS, CHILDREN IN CHANGING FAMILIES: LIFE AFTER PARENTAL SEPARATION
65(2001). Najman, Behrens, Anderson, Bo, O'Callaghan and Williams, Impact of Family
Type and Family Quality on Child Behavior Problems: A Longitudinal Study, 10 JOURNALS
OF THE AMERICAN ACADEMY OF CHILD AN ADOLESCENT PSYCHIATRY 60, 1357-
1365(1997); see also D. HARTAS, PARENTING, FAMILY POLICY AND CHILDREN'S WELL-
BEING IN AN UNEQUAL SOCIETY- A NEW CULTURE WAR FOR ARENTS (2001). JAN PRYOR
AND BRYOR RODGERS, CHILDREN IN CHANGING FAMILIES: LIFE AFTER PARENTAL
SEPARATION 1-344(2001). Paul R. Amato, The Consequence of Divorce for Adults and
Children, 62 JOURNAL OF MARRIAGE AND FAMILY 1269- 1287 (2000); Ronald L. Simons,
Kuei -HsiuLin, Leslie C. Gordon, Rand D Conger, and Federick 0 Lorenz, Explaining the
Higher: Compared with those in Two- Parent Families, 61 JOURNAL OF MARRIAGE AND
THE FAMILY 1020-33 (1999); ROBERT E. EMERY, MARRIAGE, DIVORCE AND CHILDREN'S
ADJUSTMENT 1-176(1999);HETHERINGTON AND KELLY ,FOR BETTER OR FOR WORSE 1-
228(2002). Neher and Short, Risk and Protec ve Factors for Children's Substance Use and
An -Social Behavior Following Parental Divorce, 68 AMERICAN JOURNALS OF ORTHO
PSYCHIATRY 151-161(1998). PAUL R. AMATO & ALAN BOOTH, A GENERATION AT RISK 1-
331 (2009). 143 70 7l 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93
94 95 96 97 98 99 PRYOR AND RODGERS, CHILDREN IN CHANGING FAMILIES: LIFE AFTER
PATERNAL SEPARATION 1-334 (2001). SARAH MCLANAHAN AND GARY SANDEFUR,
GROWING UP WITH A SINGLE APRENT 1-196 (1994). Evans, Kelly and Wanner, Educa onal
A ainment o he Children of Divorce: Australia, 3 JOURNAL OF SOCIOLOGY 275-97 (2001).
Deborah A. Dawson, Family Structure and Children's Health and Well Being: Data from the
1998 Na onal Health Interview Survey on Child Health, 3 JOURNAL OF MARRIAGE AND
THE FAMILY 573-584 (1991). Tucker, Friedman, Schwartz, Criqui, Tomlinson-Keasey,
Wingard and Mar n, Parental Divorce: Effects on Individual Behaviour and Longevity, 2
JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 381- 391(1997). STRANG, FAMILY
DISPUTE 108 (1996); ANIA WILCYNSKI, CHILD HOMICIDE 33(1997); ALISON STEWART &
CORNELIA BRENTANO, DIVORCE: CAUSES AND CONSEQUENCES (2002). HESTER
&PEARSON, CHILD ABUSE 54(1995). CATHERINE HUMPHREYS, NICKY STANLEY, DOMESTIC
VIOLENCE & CHILD PROTECTION (2006). ABIGAIL M. JUDGE, ROBIN M. DEUTSCH,
OVERCOMING PARENT -CHILD CONTACT PROBLEMS: FAMILY BASED INTERVENTIONS 62
(2004). THEA BROWN, CHILD ABUSE AND FAMILY LAW: UNDERSTANDING THE ISSUE
HUMAN SERVICE (2007). Hiller and Goddard, Tracking Child Sexual Abuse, 4 JOURNAL OF
CHILD PSYCHOLOGY AND PSYCHIATRY 548, 547- 60 (1989). Amato And Keith, 1991 Cherlin,
Chase-Lansdale and Mcrae, 1998 Glenn and Kramer, 1985 Amato and Keith, 1991; Chase-
Lansdale, Cherlin and Kiernan, 1995; McLeod, 1991; Rodgers, 1994 A.J. Cherlin, Going to
Extremes: Family Structure, Children's well Being 36 DEMOGRAPHY 423, 421-428(1999).
Cherlin et al, 1998; also, Amato, Loomis, and Booth, 1995; Chase-Lansdale et al1995 Ge,
Natsuaki and Conger (2006) Amato and Sobolewski, The Effects of Divorce and Marital
Discord on Adult Children 's Psychology Well-Being, 66 AMERICAN SOCIOLOGICAL REVIEW
910, 900-921(2001). Ross and Mirowsky (1999) WAUTERICKX, ANNELEEN GOUWY AND
PIET BRACKE, CHILDREN AND MARITAL DISRUPTION (2006). IRWIN GARFINKEL, SARA MC
LANAHAN, PHILIP K, CHILD SUPPORT AND CHILD WELL- BEING (1989). PRYOR AND
RODGERS, CHILDREN IN CHANGING FAMILIES: LIFE AFTER PATERNAL SEPARATION (2001).
KIERNAN AND HOBCRAFT, PARENTAL DIVORCE DURING CHILDHOOD: AGE AT FIRST
INTERCOURSE, PARTNERSHIP AND PARENTHOOD (1977). Supra note 90 Ahron, Family Ties
A er Divorce: Long Term Implica ons for Children, 1 FAMILY PROCESS 54, 53-65(2007). !d.
Cunningham, Mick and Arland Thornton, Direct and Indirect Influence on Children's
A tudes Toward Cohabita on in Young Aduthood, 46 JOURNAL OF DIVORCE AND
REMARRIAGE 127, 125- 143. Amato and Booth, 1997; Sobolewski and Amato, 2007;
Wallerstein and Kelly, 1980; Hetherington, 2003; Hetherington and Kelly, 2002; Ahrons,
1994, 2001, 2007. Wallerstein and Kelly, 1980; Hetherington, 2003; Hetherington and
Kelly, 2002; Ahrons, 1994, 2001, 2007. 144 100 101 102 103 104 105 106 107 108 109 110
Ill 112 113 114 115 116 117 118 Haugen, Caring Children: Exploring Care in Post- Divorce
Families,4 SOCIOLOGICAL REVIEW 655, 653- 670 (2007). Juby H, Le Bourdais C &Marcil-
Gra on N, Linking Family Change, Parents' Employment and Income, and Children's
Economic Well-being: A longitudinal Perspec ve (Research No. 2003-FCY-2E), O awa, ON:
Department of Jus ce (2005); Mcintosh, J &Chrisholm R, Shared caser and Children's Best
Interest in a Conflicted Separa on: A cau onary tale from Current Research, 1
AUSTRALIAN FAMILY LAWYER 20, 3- 21. Fehlberg B and Maclean M, Child Support Policy
in Australia, and the United Kingdom: Changing Priori es but a Similar Tough Deal for
Children, 1 INTERNATIONAL JOURNAL OF LAW, POLICY, AND THE FAMILY 1-23(2009).
Haugen G, Caring Children: Exploring Care in Post- Divorce Families, 4 SOCIOLOGICAL
REVIEWS 655, 653-670 (2007). . Alfred Kiddushin, "Child Welfare Strategy in the Coming
Years", in Child Welfare Strategy in the Coming Years 14-17 (Washington, D.C.: Department
of Health, Educa on and Welfare, 1978). See, for example, SHEILA B. KAMERMAN AND
ALFRED J. KAHN, SOCIAL SERVICES IN THE UNITED STATES141(Philadelphia: Temple
University Press, 1976). Eileen Gambrill and Kermit T. Wi s, "Foster Care: Prescrip on for
Change," 32 PUBLIC WELFARE 39-40 Summer 1974. ALFRED KADUSHIN, CHILD WELFARE
SERVICES 75-108 (3rd ed. New York: Macmillan, 1980). Vijender Kumar, Impact of Divorce
on Children: A Socio-economic and Legal Study, 136 NALSARLAWREVIEW [Vol.6: No.1]
(2011). Andreas Diekmann and Kurt Schmieding, The Intergenera onal Transmission of
Divorce, h p://paa2004.princeton.edu/download.asp?submission Id=409 51. Andrea H.
Beller and Sheila F. Krein, Educa onal A ainment of Children from Single Parent Families:
Difference by Gender, Exposure, Race, 25 DEMOGRAPHY 221-234 (1998). It is also
observed that children of divorce have lower level of employment, and financial
a ainment due to the instability within the family structure. See S. MCLANAHAN AND G.
SANDEFUR, GROWING UP WITH A SINGLE PARENT: WHAT HURTS, WHAT HELPS (1994).
Sadness and depression are common to all age-groups of children which is further
characterised b;y loss of appe te, relentlessness, lack of decision making, difficulty in
concentra ng etc., See Howard Raab, The Effect Of Divorce On Child.,
h p://www.divorcesource.com/FLI AR TICLES/raab3.html. Watson, The Children of
Armageddon: Problems of Custody A er Divorce, 21 SYRACUSE LAW REVIEW 55, 78
(1969). Kalter, Children of Divorce In An Outpa ent Psychiatric Popula on, 47 AMERICAN
JOURNAL OF ORTHOPSYCHIATRY 40-48(1977); McDermo , Parental Divorce In Early
Childhood, 124 AMERICAN JOURNAL OF PSYCHOLOGY 1424, 1424 (1968). ROBERT WEISS,
"MARITAL SEPARATION"(l975). Steven L. Nock, The Family and Hierarchy, 50 JOURNAL OF
MARRIAGE AND THE FAMILY 957-966 (Nov. 1988). Ar cle 9(1) of the Conven on states
that: States Par es shall ensure that a child shall not be separated from his or her parents
against their will, except when competent authori es subject to judicial review determine,
in accordance with applicable law and procedures, that such separa on is necessary for
the best interests of the child. Such determina on may be necessary in a par cular case
such as one involving abuse or neglect of the child by the parents, or one where the
parents are living separately and a decision must be made as to the child’s place of
residence NAESP Staff Report, One-Parent Families and Their Children, 60 PRINCIPAL 31,
33(1980) at 31. Leighton E. Stamps, Seth Kunne, and Robert Lawyer, Judicial A tudes
regarding Custody and Visita on Issues, 25 JOURNAL OF DIVORCE AND REMARRIAGE 23-
33 (1996). Alan C. Alcock and K. Jill Kiecolt, Is It Family Structure or Socio-economic status?
68 SOCIAL FORCES 553 (1989). This is o en to say that lower socio-economic status
increases sources of stress and is correlated with lower self-esteem in children of divorced
145 119 120 121 122 123 124 families. See N.J. Shook & J. Jurich, Correlates of Self-Esteem
amongst College Offspring of Divorce Family, 18 JOURNAL OF DIVORCE AND REMARRIAGE
18-314 at 157 (1992). Carolyn J. Frantz, Elimina ng Considera on of Parental Wealth in
Post Divorce Custody Disputes, Vol. 99, No.1 MICHIGAN LAW REVIEW 216-237 (October
2000). L. K. White, The Effect of Parental Divorce and Remarriage on Parental Support For
Adult Children, 13 JOURNAL OF FAMILY ISSUES 234-250 (1992). Paul R. Amato and Alan
Booth, A Prospec ve Study Of Divorce and Parent-Child Rela onships, 58 JOURNAL OF
 MARRIAGE AND THE FAMILY 356-36 (May 1996). EDGAR F. BORGATTA AND RHONDA J.V.
MONTGOMERY, CONSEQUENCES OF DI\TORCE FOR CHILDREN, ENCYCLOPEDIA OF
SOCIOLOGY 707(2nd ed., Vol. I 2000). Hansen, The Role And Rights of Children-In Divorce
Ac on, 6 JOURNAL OF FAMILY LAW 1, 9-11 (1966); Speca and Wehrman, Protec ng The
Rights Of Children In Divorce Cases In Missouri, 38 UMKC LAW REVIEW 1, 6 (1969). See for
instance, the Child Support Act in UK. 146

'RIGHT TO FAMILY LIFE'- PROTECTION UNDER

INTERNATIONAL AND REGIONAL LEVELS

6.1 Introduc on An individual's right to have his established family life respected, and to have
and maintain family. rela onships, form part and parcel of almost all interna onal human
rights instruments. 1 The rela onship between husband and wife/ unmarried partners, 3
parents and children, 4 siblings, 5 and 'near rela ves' such as between grandparents and
grandchildren6 represents "family" as required under the righ o family life. The "existence of
family life is, however a ques on of fact" which has to. be decided subjec vely under each
factual situa on. 7 While considering what cons tutes family rela onships the Court "must
necessarily take into account developments in society and changes in the percep on of social,
civil-status and rela onal issues, including the fact that there is not just one way or one choice
in the sphere ofleading and living one's family or private life." 8 6. 2 'Right to marry' and 'right
to family life' dis nguished Though the 'right to marry' is closely related to the 'right to family
life,' the two rights are not iden cal. The former is explicitly provided for in all human rights
instruments, 9 essen ally providing that all individuals have the right to marry and found a
family. The la er predominantly refers to an individual's right to create and maintain his family
rela onships. This right which is of great significance as far as a child is concerned forms the
subject ma er of study of the present Chapter. 6.3 Interna onal Conven ons The principles
proclaimed in the Charter of the United Na ons underlines that, recogni on of the inherent
dignity and of the equal and inalienable rights of all members of the human family is the
founda on of freedom, jus ce and peace 147 in the world. It is also evident that the peoples
of the United Na ons have, in the Charter, reaffirmed their faith in fundamental human rights
and in the dignity and worth of the human person, and have determined to promote social
progress and be er standards of life in larger freedom. 10 The family being the fundamental
group of society and the natural environment for the growth and well-being of children,
should be afforded the necessary protec on and assistance. The child, for the full and
harmonious development of his or her personality, should grow up in a family environment,
in an atmosphere of happiness, love and understanding. The child should be fully prepared to
live an individual life in society. He should be brought up in the spirit o he ideals proclaimed
in the Charter of the United Na ons; and in par cular, in the spirit of peace, dignity, tolerance,
freedom, equality and solidarity. The UN has been keen in devising and incorpora ng key
provisions in interna onal conven ons in order to safeguard the interests of children. The
major interna onal instruments in this regard along with the specific provisions that directly
or indirectly facilitate the 'right to family life' are discussed below: 6. 3. 1 Universal Declara on
of Human Rights, 1948 The Universal Declara on of Human Rights (UDHR) adopted by the
United Na ons General Assembly on 10 December 1948, declares in unequivocal terms, the
universal rights held by all individuals regardless of subjec ve factors. Arguably the UDHR now
represents customary interna onal law, and as such has legally binding force over States. 11
The per nent provision rela ng to the 'right to family' declares: "The family is the natural and
fundamental group unit of society and is en tled to protec on by society and the State. 12
148 6. 3. 2 Interna onal Covenant on Civil and Poli cal Rights, 1966 The Interna onal
Covenant on Civil and Poli cal Rights (ICCPR) was adopted by the United Na ons General
Assembly on 16 December 1966, and came into force on 23 March 1976. As on May 2016
there are 168 State par es to the ICCPR, giving effect to the civil and poli cal rights of
individuals within their borders. The following provisions ensure the right to family: • No one
shall be subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence; nor to unlawful a acks on his honor and reputa on. Everyone has the right
to the protec on of the law against such interference or a acks. 13 • The family is the natural
and fundamental group unit of society and is en tled to protec on by society and the State.
14 • Every child shall have, without any discrimina on as to race, colour, sex, language,
religion, na onal or social origin, property or birth, the right to such measures of protec on
as are required by his status as a minor, on the part o is family, society and the State. 15 The
above said provisions were given a wider interpreta on by the UN Human Rights Commi ee
in Winata v. Australia. 16 In this case, Winata and Li alleged that their removal from Australia,
where their adolescent son held residency, would violate their fundamental right to family
envisaged under Ar cles 17, 23(1) and 24(1) of the ICCPRYBoth Winata and Li were living
illegally in Australia, and were facing deporta on by the State. It was contended that either
the separa on of Winata and Li from their son through deporta on, or the forced removal of
the whole family unit to Indonesia, would be an interference with the fundamental family unit
that was not compa ble with the State's obliga on to protect the right to family under the
ICCPR. Australia argued that the applica on was inadmissible and incompa ble with the
provisions of the ICCPR, emphasizing the ICCPR provides protec on 149 "only to a right to
family life, not a right to family life in a par cular country." Brushing aside these arguments,
the majority held that while individuals may not have the right to decide where they reside,
States are obligated to protect all of the rights within the ICCPR. The UN Human Rights
Commi ee recognized the importance of State's control over immigra on within their
territory; however this discre on is "not unlimited". It was held that deporta on of Winata
and Li would cons tute a viola on of Ar cles 17 and 23(1) of the ICCPR. 18 Prior to Winata,
interna onal prac ce indicated that it was for States to determine who could reside in their
territory, even where an infringement of Ar cle 23 would arguably occur. 19 The Commi ee's
decision in Winata challenges this assump on, indica ng that an individual's right to family
life receives precedence over States' ability to control residence within their territory. 6.3.3
Interna onal Covenant on Economic, Social and Cultural Rights, 1966 The Interna onal
Covenant on Economic, Social and Cultural Rights (ICESCR) was also adopted by the General
Assembly on 16 December 1966; however it did not enter into force ll nine years a er it
opened for signature on 3 January 1976. Providing for the right to family, the Covenant
mandates that "widest possible protec on and assistance should be accorded to the family,
which is the natural and fundamental group unit of society, par cularly for its establishment
and while it is responsible for the care and educa on of dependent children. 20 6.3.4
Conven on on the Rights of the Child, 1989 Recalling that, in the Universal Declara on of
Human Rights, the United Na ons has proclaimed that childhood is en tled to special care
and assistance;21 and that in all countries in the world, there are children living in
excep onally difficult condi ons, and that such children need special considera on, the State
Par es to the Conven on on the Rights of the Child, 198922 have agreed to incorporate in
their municipal law, the following norms: 150 • Principle of non- discrimina on For the
purpose of the Conven on, the term 'child' has been defined as "a person below the age of
18, unless the laws of a par cular country set the legal age for adulthood younger.'m The
Conven on applies to all children irrespec ve of their race, religion or abili es. It is immaterial
whatever they think or say, whatever type of family they come from, where they live, what
language they speak, what their parents do, what their gender is, what their culture is,
whether they have a disability or whether they are rich or poor. Thus, the Conven on
mandates that no child shall be treated unfairly on any basis?4 • Best interests of the child
The best interests of children must be the primary concern in making decisions that may affect
them. All adults should do what is best for children. When adults make decisions, they should
think about how their decisions will affect children. This par cularly applies to budget, policy
and law makers.25 • Protec on of rights Governments have a responsibility to take all
available measures to make sure children's rights are respected, protected and fulfilled. When
States ra fy the Conven on, they agree to review their laws rela ng to children. This involves
assessing their social services, legal, health and educa onal systems, as well as levels of
funding for these services. Governments are then obliged to take all necessary steps to ensure
that the minimum standards set by the Conven on in these areas are being met. They must
help families protect children's rights and create an environment where they can grow and
reach their poten al. In some instances, this may involve changing exis ng laws or crea ng
new ones. Such legisla ve changes are not imposed, but come about through the same
process by which any law is created or reformed within a country.26 • Parental guidance
Governments should respect the rights and responsibili es of families to direct and guide their
children so that, as they grow, they learn to use their rights properly. 27 Helping children to
understand their rights does not mean pushing 151 them to make choices with consequences
that they are too young to handle. The Conven on encourages parents to deal with rights
issues "in a manner consistent with the evolving capaci es of the child". The Conven on does
not take responsibility for children away from their parents and give more authority to
governments. It does place on governments the responsibility to protect and assist families in
fulfilling their essen al role as nurturers of children. • Survival and development Governments
should ensure that children survive and develop healthily.Z8 • Registra on, name, na onality
and care All children have the right to a legally registered name, officially recognized by the
government. Children have the right to a na onality. Children also have the right to know and,
as far as possible, to be cared for by their parents.29 • Preserva on of iden ty Children have
the right to an iden ty - an official record of who they are. Governments should respect
children's right to a name, a na onality and family es.30 • Separa on from parents and
reunifica on Children have the right to live with their parent( s ), unless it is bad for them.
Children whose parents do not live together have the right to stay in contact with both
parents, unless this might hurt the child.31 Families whose members live in different countries
should be allowed to move between those countries so that parents and children can stay in
contact, or get back together as a family. 32 • No forceful displacements Governments should
take steps to stop children being taken out of their own country illegally. 33 This provision is
par cularly concerned with parental abduc ons. The Conven on's Op onal Protocol on the
sale of children, child 152 pros tu on and child pornography has a provision that concerns
abduc on for financial gain. • Respect for the views of the child When adults are making
decisions that affect children, children have the right to say what they think should happen
and have their opinions taken into account. 34 This does not however mean that children can
now tell their parents what to do. This Conven on encourages adults to listen to the opinions
of children and get them involved in decision making. This does not interfere with parents'
right and responsibility to express their views on ma ers affec ng their children. Moreover,
the Conven on recognizes that the level of a child's par cipa on in decisions must be
appropriate to the child's level of maturity. Children's ability to form and express their
opinions develops with age and most adults will naturally give the views of teen agers greater
weight than those of a preschooler, whether in family, legal or administra ve decisions. •
Freedom of thought, conscience and religion Children have the right to think and believe what
they want and to prac ce their religion, as long as they are not stopping other people from
enjoying their rights. 35Parents should help guide their children in these ma ers. The
Conven on respects the rights and du es of parents in providing religious and moral guidance
to their children. Religious groups around the world have expressed support for the
Conven on, which indicates that it in no way prevents parents from bringing their children up
within a religious tradi on. At the same me, the Conven on recognizes that as children
mature and are able to form their own views, some may ques on certain religious prac ces
or cultural tradi ons. The Conven on supports children's right to examine their beliefs, but it
also states that their right to express their beliefs implies respect for the rights and freedoms
of others. 153 • Right to privacy Children have a right to privacy. The law should protect them
from a acks against their way of life, their good name, their families and their homes. 36 •
Parental responsibili es; and State assistance Both parents share responsibility for bringing
up their children, and should always consider what is best for each child. 37 Governments
must respect the responsibility of parents for providing appropriate guidance to their children.
The Conven on also places responsibility on governments to provide support services to
parents, i oth parents work outside the home. • Protec on from all forms of violence
Children have the right to be protected from being hurt and mistreated, physically or mentally.
Governments should ensure that children are properly cared for and protect them from
violence, abuse and neglect, by their parents, or anyone else who looks a er them. 38 In terms
of discipline, the Conven on does not specify what forms of punishment parents should use.
However, any form of discipline involving violence is unacceptable. There are ways to
discipline children that are effec ve in helping children learn about family and social
expecta ons for their behavior- ones that are non-violent, are appropriate to the child's level
of development and take the best interests of the child into considera on. In most countries,
laws already define what sorts of punishments are considered excessive or abusive. It is up to
each government to review these laws in light of the Conven on. • Special care for children
deprived of family environment Children who cannot be looked a er by their own family have
a right to special care and must be looked a er properly, by people who respect their ethnic
group, religion, culture and language. 39 • Adop on and foster care Children have the right to
care and protec on if they are adopted or in foster care. The first concern must be what is
best for them. The same rules should 154 apply whether they are adopted in the country
where they were born, or if they are taken to live in another country. 40 • Special care and
support for children with disabili es Children who have any kind of disability have the right to
special care and support, as well as all the rights in the Conven on, so that they can live full
and independent Iives.41 • Health and health services Children have the right to good quality
health care- the best health care possible- to safe drinking water, nutri ous food, a clean and
safe environment, and informa on to help them stay healthy.42 Rich countries should help
poorer countries achieve this. Children who are looked a er by their local authori es, rather
than their parents, have the right to have these living arrangements looked at regularly to see
if they are the most appropriate. 43 Their care and treatment should always be based on "the
best interests of the child".44 • Adequate standard of living and right to educa on Children
have the right to a standard of living that is good enough to meet their physical and mental
needs. Governments should help families and guardians who cannot afford to provide this,
par cularly with regard to food, clothing and housing. 45 All children have the right to primary
educa on, which should be free. 46 Wealthy countries should help other countries achieve
this right. Discipline in schools should respect children's dignity. For children to benefit from
educa on, schools must be run in an orderly way- without the use of violence. Any form of
school discipline should take into account the child's human dignity. Therefore, governments
must ensure that school administrators review their discipline policies and eliminate any
discipline prac ces involving physical or mental violence, abuse or neglect. The Conven on
places a high value on educa on. Young people should be encouraged to reach the highest
level of educa on of which they are capable. 155 • Leisure, play and culture Children have the
right to relax and play, and to join in a wide range of cultural, ar s c and other recrea onal
ac vi es.47 The government should protect children from work that is dangerous or might
harm their health or their educa on. 48 While the Conven on protects children from harmful
and exploita ve work, there is nothing in it that prohibits parents from expec ng their
children to help out at home in ways that are safe and appropriate to their age. If children
help out in a family farm or business, the tasks they do must be safe and suited to their level
of development and comply with na onal labour laws. Children's work should not jeopardize
any of their other rights, including the right to educa on, or the right to relaxa on and play.
In addi on, Governments should use all means possible to protect children from the use of
harmful drugs and from being used in the drug trade. 49 Governments should protect children
from all forms of sexual exploita on and abuse. 50 This provision in the Conven on is
augmented by the Op onal Protocol on the sale of children, child pros tu on and child
pornography. The government should take all measures possible to make sure that children
are not abducted, sold or trafficked. 51 Children should be protected from any ac vity that
takes advantage of them or could harm their welfare and development. 52 No one is allowed
to punish children in a cruel or harmful way. 53 Children who have been neglected, abused or
exploited should receive special help to physically and psychologically recover and reintegrate
into society. Par cular a en on should be paid to restoring the health, self-respect and
dignity of the child. 54 6. 4 Regional Arrangements Within Europe, the European Conven on
on Human Rights and the European Social Charter stand as founda onal human rights
instruments. The American Conven on on Human Rights is yet another regional huinan rights
treaty that similarly provides for the right to family life. The protec on of the 156 family and
vulnerable groups is specified under the African Charter on Human and People's Rights as
well. 6.4.1 European Conven on on Human Rights, 1950 The European Conven on on Human
Rights (ECHR) declares: 55 1. Everyone has the right to respect for his private and family life,
his home and his correspondence. 2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with the law and is necessary in a
democra c society in the interests of na onal security, public safety or the economic
wellbeing of the country, for the preven on of disorder or crime, for the protec on of health
or morals, or for the protec on of the rights and freedoms of others. This provision imposes
both posi ve and nega ve obliga ons on States; not only is the State required to protect its
cons tuents from arbitrary interference in family life by public authori es, 56 it must also
provide within its domes c legal system safeguards that allow the development of a "normal
family life". 5 7 It is clear that the provision applies to both "legi mate" and "illegi mate"
family, with no dis nc on between the two qualifica ons within the Conven on. 58 This ECHR
provision has been successfully invoked in EM (Lebanon) (FC) v. Secretary of State for the
Home Department. 59 The instant case involved a second appeal against a decision of the
Secretary of State for the Home Department that EM and her son (AF) must return to Lebanon,
the appellant's country of origin. EM had fled from Lebanon with AF following a violent
marriage and resul ng divorce. Under Lebanese Shariat law, the physical custody of the child
must be transferred to the father or a male family member once the child reaches seven years
of age. Since AF was above seven years of age, all custodial rights were to be transferred to
his paternal father upon return to Lebanon. 157 It was argued that the forced removal to
Lebanon by the United Kingdom would result in a direct breach of the right to family life under
Ar cle 8 of the ECHR. The Court held that removal of the appellant and her son to Lebanon
would violate both EM and AF's rights under Ar cle 8. This decision Is significant, represen ng
the first successful Ar cle 8 claim in a foreign case.60 6.4.2 European Social Charter, 1961 The
European Social Charter IS the counterpart to the European Conven on on Human Rights,
providing for fundamental social and economic rights under a Council of Europe treaty. The
Charter provides for the 'right to family' reaffirming European par es' commitment to the
right: "With a view to ensuring the necessary condi ons for the full development of the family,
which is a fundamental unit of society, the Contrac ng Par es undertake to promote the
economic, legal and social protec on of family life by such means as social and family benefits,
fiscal arrangements, provision of family housing, benefits for the newly married, and other
appropriate means." 61 6.4.3 American Conven on on Human Rights, 1969 The American
Conven on on Human Rights is another regional human rights treaty that provides for the
'right to family' life.62 It specifically declares that "the family is the natural and fundamental
group unit of society and is en tled to protec on by society and the state."63 6.4.4 African
Charter on Human and People's Rights, 1981 The protec on of the family and vulnerable
groups is specified under the African Charter on Human and People's Rights,64 sta ng: 1. The
family shall be the natural unit and basis of society. It shall be protected by the State which
shall take care of its physical health and moral. 2. The State shall have the duty to assist the
family which is the custodian of morals and tradi onal values recognized by the community.65
158 6.5. Conclusion An individual's right to family life respected, and to have and maintain
family rela onships form part and parcel of the right to privacy recognized under almost all
interna onal and regional human rights instruments. This right not only covers the
rela onship between husband and wife, but also the rela onship between the parents and
children and between the siblings. Thus, many rela onships represent "family" as required
under the 'concept family life' for the purpose of right to privacy. While considering what
cons tutes family rela onships, the Courts take into account the social developments and
changes. At the interna onal level, the UN has been keen in devising and incorpora ng key
provisions in interna onal conven ons in order to safeguard the interests of children. The
major interna onal instruments in this regard along with the specific provisions directly or
indirectly facilitate the 'right to family life.' The UDHR, the ICCPR, the ICESCR and the CRC
underline that the best interests of children must be the primary concern in making decisions
that may affect them. Within Europe, the European Conven on on Human Rights and the
European Social Charter stand as founda onal human rights instruments. The American
Conven on on Human Rights and the African Charter on Human and People's Rights are also
major regional human rights trea es that similarly provide for the right to family life. The
contribu ons of the ECHR are also praise worthy. The ICCPR, the American Conven on and
the European Conven on permit State interference in family ma ers under certain
circumstances. However, as required by the Human Rights Commi ee, such interference must
be lawful, reasonable and non-arbitrary. It has to be noted that neither the ICCPR nor the
American Conven on set out permissible limita ons over the right to privacy. Nevertheless,
the European Conven on enumerates reasons for permissible limita ons. 159 The right to
privacy, inter alia includes an individual's general right 'to establish and develop rela onships
with other persons.' This aspect of the right to privacy obviously has implica ons for the
concomitant right to family life, although nothing in the European Conven on prohibits a State
from regula ng some areas of inter-personal rela onships. The doctrine of non-interference
by the State is firmly established in the right to privacy; and the Court has also confirmed this
primary duty of the State. 66 The European Conven on legi mizes a senes of restric ons in
areas where States have long regulated individual ac ons,67 for example in rela on to the age
of sexual consent and divorce. On the other hand, it is in rela on to personal rela onships
that the non-interference principle is o en invoked. Regarding adults, the Commission and
Court have generally taken the view that there is no interference with the right to private or
family life so long as the State does not interfere with its de facto existence and daily
conduct.68 It is universally acknowledged that the role of a parental figure has a huge direct
influence on children's health, both from a psychological and physical point of view. A er
divorce, many children lose the possibility to keep in contact with one of their parents, with
drama c social and biomedical consequences. The most evident effects can be traced in life
sa sfac on level and in hormonal balance as well as an increase in the probability of suffering
from panic a acks in adult life and even consequences on chromosomal integrity with
possible effects on progeny. From a social point of view, there are clear evidences of the effects
on micro-criminality, on school dropout rate, on tobacco addic on, on unintended pregnancy
rate as well as on economic status. It is therefore unwise to link the present topic under study
exclusively to the field of family law, considering that biomedical and psychological aspects
are also involved. Unfortunately, it o en happens that the child loses contact with one of the
two parental figures and, in industrialized countries, this event is mainly linked to divorce, the
birth of children out of wedlock or changes in cohabita on condi ons (parents not sharing
the same house). 160 Research studies 69 which aim at providing a general overview on the
different prac ces of several European countries on the subject of the protec on of children's
interests, shows that there are s ll very different concep ons of children's protec on, varying
from country to country; contrary to the medical world where shared and common guidelines
usually exist; and there is also a global inadequate percep on of the importance of co-
paren ng principle: in most cases, one of the parents is originally marginalized as a
consequence of judicial disposi on. An interven on of the EU ins tu ons, aimed at
guaranteeing the protec on of children's rights and harmonizing exis ng good prac ces, as
would happen in medical science, seems therefore, urgently needed. There is also a clear need
for switching from a formal-legal language to a scien fic language, which could be understood
and applied by all Member States as well as introduced into the relevant legal systems in order
to avoid discrimina on based on children's na onality. 70 Usually, researches in this area turn
out to be very complex due to the lack of official data in many countries. The European
Commission itself admi ed that it has actually no informa on and data about studies and best
prac ces regarding joint custody of children or/and co-paren ng. 71 The EC also stated that
the defini on of "joint custody" is to be determined by na onal family law since it does not
concern the spectrum of competences of the European Union. It shall therefore be regulated
according to Member States na onal norma ve framework. This clarifies why there are s ll
remarkable differences among na onal legal systems regarding the defini on of the concept
of "joint custody" and its actual applica on in real situa ons. 72 It is therefore clear that, this
subject now seen as an Issue specific to family law, has to be tackled using a more universal
scien fic language that each legal system will then be able to transpose independently in
accordance with its own methods. 161 2 3 4 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
24 25 26 27 28 29 30 31 32 33 34 35 36 See for instance, Ar cle 16 of the Universal Declara on
of Human Rights, Ar cle 23 of the Interna onal Covenant on Civil and Poli cal Rights, and
Ar cle 8 of the European Conven on on Human Rights. Goran Cve c, "Immigra on Cases in
Strasbourg: The Right to Family Life under Ar cle 8 of the European Conven on", 36(3)
BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAW 650(1987). Johnston v.
Ireland, (9697/82) ECHR 18 December. Berrehab v. the Netherlands, (3/1987/126/177;
10730/84) ECHR 28 May 1988. Olsson v. Sweden, (10465/83) ECHR 24 March 1988. Marckx v.
Belgium, 2 EHRR 330. Nadia Melehi "The Right to Family Life Free from Discrimina on on the
Basis of Sexual Orienta on: The European and Inter-American Perspec ves", 29 AMERICAN
UNIVERSITY INTERNATIONAL LAW REVIEW 954 (2014). Villianatos and Others v Greece,
(29381/09 & 32684/09) [2013] ECHR (7 November 2013), at [84] European Conven on on
Human Rights, Ar cle 12; American Conven on on Human Rights, Ar cle 17; Interna onal
Covenant on Civil and Poli cal Rights, Ar cle 23(1); African Charter on Human and Peoples
Rights, Ar cle 18; Universal Declara on on Human Rights, Ar cle 16; European Social Charter,
Ar cle 16; Interna onal Conven on on Economic, Social and Cultural Rights, Ar cle 10.
Charter of the United Na ons,1945. ADAM MCBETH, IDSTINE NOLAN AND SIMON RICE THE
INTERNATIONAL LAW OF HUMAN RIGHTS 251 (Oxford University Press, Australia, 2011).
Ar cle 16(3) of the UDHR Ar cle 17 Ar cle 23(1) Ar cle 24. See also, Human Rights Commi ee
"General Comment No 19 of 1990, Ar cle 23" (1994) UN Doc HRI/GEN/1/Rev.1 at 28.
Communica on No. 930/2000 (16 August 2001) UN Doc. CCPR/C/72/D/930/2000 For a
discussion, see RichardBurchill "The Right to Live Wherever you Want? The Right to Family Life
Following the UN Human Rights Commi ee's Decision in Winata", 21(2) NETHERLANDS
QUARTERLY OF HUMAN RIGHTS 227(2003). Winatav Australia Communica on No. 930/2000
(16 August 2001) UN Doc. CCPR/C/72/D/930/2000 at 7.3. Supra note 11 Ar cle 10(1) See also,
the Geneva Declara on of the Rights of the Child of 1924 and Declara on of the Rights of the
Child adopted by the General Assembly on 20 November 1959. Adopted and opened for
signature, ra fica on and accession by General Assembly resolu on 44/25 of 20 November
1989 entry into force 2 September 1990, in accordance with ar cle 49. Ar cle 1 Ar cle 2
Ar cle 3 Ar cle 4 Ar cle 41 of the Conven on points out the when a country already has
higher legal standards than those seen in the Conven on, the higher standards always prevail.
Ar cle 5 Ar cle 6 Ar cle 7 Ar cle 8 Ar cle 9 Ar cle 10 Ar cle 11 Ar cle 12 Ar cle 14 Ar cle
16 (Right to privacy) 162 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58
59 60 61 62 63 64 65 66 67 68 69 70 71 72 Ar cle 18 Ar cle 19 Ar cle 20 Ar cle 21 Ar cle 23
Ar cle 24 Ar cle 25 See, Guiding Principles, Ar cle 3 Ar cle 27 Ar cle 28 Ar cle 31 Ar cle 32
(Child labour) Ar cle 33 (Drug abuse) Ar cle 34 (Sexual exploita on) Ar cle 35 (Abduc on,
sale and trafficking) Ar cle 36 (Other forms of exploita on) Ar cle 37 (Deten on and
punishment) Ar cle 39 (Rehabilita on of child vic ms) Ar cle 8 Belgian Linguis cs case (No.2)
(1968) 1 EHRR 252, at 33[7] Marckx v. Belgium, 2 EHRR. 330, at 31 !d. [2008] UKHL 64, [2008]
3 W.L.R. 931 Stephanie Palmer and A. T. H Smith "Protec ng the Right to Respect for Family
Life in "Foreign" Cases", 68(3) THE CAMBRIDGE LAW JOURNAL 498(2009). Ar cle 16 The
American Conven on on Human Rights, also known as the Pact of San Jose, is an interna onal
human rights instrument. It was adopted by many countries in the Western Hemisphere in
San Jose, Costa Rica, on 22 November 1969. Ar cle 17(1) The African Charter on Human and
Peoples' Rights (also known as the Banjul Charter) was adopted by the Organiza on of African
Unity in 1981 and entered into force on 21 October 1986. Ar cle 18 Airey v. Ireland
(Applica on No. 6289/73, Judgment of9 October 1979) Ar cle 8(2) For example, in Johnston
et a/. v. Ireland, (INSC)ECHR17. which concerned the unavailability of divorce under Irish law,
or of the recogni on of family life outside marriage a er the breakdown of the marriage of
one of the par es and a third person, the Court held that 'Ar cle 8 cannot be regarded as
extending to an obliga on on its part to introduce measures permi ng divorce and re-
marriage'. See for instance, Vi orio Vezze , "European Children And The Divorce of Their
Parents: A Ques on of Right To Health". www.figlipersempre.com/res/site 39917/res689030-
europeanchildren2-2-pdf. In this context, the Italian case is striking: there is a formal 'idyllic'
law ensuring the children's right to have and keep significant and stable rela onships with
both parents a er divorce/separa on Uoint legal custody is formally applied in 89% of cases).
But the par on of the me between the parents is 83% by "primary parent" and 17% by the
"less involved parent. For this reason Italy has been convicted several mes by the European
Court of Strasbourg for not properly protec ng the rela onship between a child and a
divorced parent. MEP Roberta Angelilli's Wri en Interroga on (E-000713/2013) to the
European Commission Supra note 69. 163
 Chapter - VII PROTECTION OF 'FAMILY LIFE' OF CHILDREN
COMPARATIVE PERSPECTIVE

7.1 Introduc on Un l the la er half of the 20th century, judiciary a ributed a gender biased
defini on for 'child's best interests.' In England and the United States, fathers were given
custody as children were seen as the property of the father. 1 This rule had an economic basis:
only men had access to resources to support the child; and mothers who had no independent
economic existence, were the property of their husbands.2 By the end of the 19th century,
this gender bias flipped. At this me, as seen earlier, courts developed the "tender years"
doctrine; and presumed that the mother was the more appropriate custodial parent for young
children. Court decisions of the me, referenced the transcendental importance of mother's
love, something seen as more important than the father's involvement with the child.3 This
judicial switch from father to mother reflects the influence of contemporary thought on the
importance of the mother-child bond in the child's emo onal development. It also reflects the
reali es of the increasing industrializa on and division of labour within the family. Even then,
some gender bias in favour of father con nued. Fathers typically had superior economic
resources, so boys of teenage years could be placed with the father largely because he had
the ability to support the adolescent child and prepare him for an occupa on. Subsequently,
the doctrine was challenged by the large scale entry of women into the work place. The
influence of the campaign to eradicate gender bias against women in the workplace had the
opposite effect in custody disputes. If mothers could not be denied access to jobs and
economic opportunity on the basis of gender, fathers could not be denied custody on the
same basis.4 164 Many states and courts began to move away from this doctrine and toward
a more gender-neutral decision process for custody, maintenance, visita on and other related
aspects. The present Chapter a empts to analyze the legal regime in this regard in different
jurisdic ons, in a compara ve perspec ve. This exercise is done in order to iden fy novel
concepts that could be incorporated in Indian law, with or without modifica ons. 7.2 The
Polish Law The Cons tu on of the Republic of Poland (the CRP) 5 guarantees fundamental
rights to family by s pula ng inter alia that Poland protects family, maternity and
parenthood;6 welfare of the child;7 and family life. 8 It also provides freedom for parents to
raise their children in accordance with their values.9 The primary source of law in rela on to
the breakdown of marriage and welfare of the children is the Family and Guardianship Code
(the FGC) of 1964. 10 Title I of the FGC regulates matrimonial causes11 • Other statutes may
also concern issues relevant to matrimonial law. 12 The grounds on which a nullity can be
brought are specific and are provided by Ar cles 10 to 16 of the FGC. 13 The ground for divorce
is 'complete and irretrievable breakdown' of marriage. 14 However, despite complete and
irretrievable breakdown of marriage, a divorce is not permi ed if the divorce would be
detrimental to the welfare of the common minor children of the spouses or if there are other
reasons indica ng that to grant a divorce would be against the principles of community life.
15The court may also refuse to grant a divorce if the spouse seeking a divorce is exclusively
guilty of the breakdown of the marriage and the innocent spouse does not want to consent
to a divorce, unless the refusal to consent to the divorce, in the given circumstances, is against
the principles of community life. 16 On divorce, at the demand of one of the spouses, the
court will divide their community property. 17 If divorce is granted without the division of
property, the spouses may employ a separate court's property division procedure. The court
has a substan al range of possibili es with respect to structuring a division of community
property. The court can award certain assets to one spouse and certain 165 other assets to
the other spouse. Each spouse should receive assets of the same value. The payment can be
spread out in installments for a maximum period of ten years. The court can also divide
par cular assets in kind, giving part of it to one spouse and the other part to the other spouse,
or order that it be sold and the money divided. 18 When dividing community estate, the court
must take into account that each spouse should repay any expenses and expenditure made
from community property to his separate property, except for necessary expenses and
expenditure on the assets bringing in an income. 19 A spouse can demand the reimbursement
of expenses and expenditures made from separate property on community property. A
.determina on IS generally based on an assump on that the most equitable division is an
equal division. Therefore, spouses have equal shares in community estate.20 However, for
important reasons, each spouse can demand that the court establish different shares when
dividing community estate, taking into account each spouse's contribu on to the property.
When assessing the degree of each spouse's contribu on to the property, the court must
consider raising children and homemaking ac vi es. When assessing "important reasons" the
court takes into account the fault of the spouse in the breakdown of marriage. 21 There is a
reciprocal obliga on of spouses to support each other. 22 It provides that both spouses are
obliged, each according to their strength, earning capacity and resources, to contribute
towards mee ng the needs of the family founded by their marriage. A er divorce, this
obliga on ceases23 and the divorced spouse, who has not been found exclusively guilty of the
breakdown of marriage and who finds him/herself in poverty, may demand that the other
spouse provides a means of maintenance appropriate for the jus fied needs of the en tled
spouse and the earning capacity and resources of the obligor spouse.Z4 Poverty should be
understood as the state in which one cannot meet one's own basic needs. It may result from
different reasons (for example, lack of 166 qualifica ons to get a job as that person took care
of the children and household for many years, inability to work because of the need to take
care of the children, or health problems). Poverty may be the result of the breakdown of
marriage or may occur some me a er the divorce (for example, if the spouse loses job or is
forced to significantly reduce working hours as a result of the serious health problems and as
a consequence has lower earnings). The divorced spouse found exclusively guilty
o reakdown of marriage is not en tled to the spousal support. He/she is obliged, when the
divorce results in significant reduc on of the standard of living of the innocent spouse, to pay
spousal support according to the jus fied needs of the innocent spouse, even though the
innocent spouse is not in poverty. The obliga on to pay spousal maintenance expires only on
the death of the en tled spouse or in the case of a new marriage. However when the obligor
ex-spouse has not been found guilty of the breakdown of marriage, his obliga on to pay
maintenance expires a er five years from the date of the divorce verdict, unless extended by
the court at the request of the en tled spouse, due to excep onal circumstances?5 The courts
do not commonly award maintenance for an ex-spouse a er the divorce. The court is granted
a great deal of discre on with regard to spousal maintenance, including the right not to award
it in excep onal circumstances, even if all of the statutory requirements are fulfilled. 26 When
considering the obliga on of the exclusively guilty spouse to pay support to the innocent
spouse,27 the court must compare the factual financial situa on of the innocent spouse a er
divorce to the posi on that would have existed if the par es had not divorced and would
con nue living together.28 The obliga on for parental support of minor children is found in
several provisions o he FGC. Ar cle 133 of the FGC describes the general obliga on of both
parents to support their child un l the child can provide for him/herself, unless the income
from a child's property is sufficient to cover his/her maintenance and upbringing. 167 The
establishment of the amount of child support is le to the discre on of the Family Court. The
court will examine the factors that have a bearing on the child's standard ofliving,29 both
before and a er the separa on o islher parents, related to the jus fied needs of the children
and income, earning capacity and resources of both par es. The court applies those factors
and determines the amount of support to be paid. Judges applying this standard o en come
to varying conclusions about an appropriate child support award. The amount of child support
is based on the actual needs for health, educa on and maintenance. An important factor in
determining the extent of that child's needs is the age of the child. However, the court can
take into account the standard ofliving that the child would have had if the family had
con nued to live together. The performance of the child support obliga on may rest fully or
par ally on personal efforts for his maintenance and upbringing. In this case, child support for
the non-custodial parent means covering maintenance and upbringing costs for the child. 30
A parent's capacity to pay child support is usually determined by the actual income at the me
the award is made and all other available sources. If the court concludes that the parent's
actual income does not reflect true earning capacity, the court may impute addi onal income
to that parent. This imputa on of income may also occur when the court determines that a
parent has voluntarily (because of circumstances within the parent's control) reduced actual
income. If voluntary and unjus fied reduc on of income or resources took place in the three
years before the court was asked to enter a support order, the reduc on is not taken into
account when compu ng child support. 31 On divorce, the court must determine custody over
the minor common children of the spouses. 32 The court takes into account the agreement
of the spouses on exercising parental authority and visita ons if it is in accordance with the
best interest of the child. Siblings should not be separated on divorce, unless it would be in
the children's best interest. The court can designate one parent as the custodial parent,
limi ng the parental authority of the second parent to specific rights and du es in rela on to
168 the child (for example, par cipa on in decision-making concerning the child's educa on,
health and religious upbringing). 33In determining custody in divorce proceedings, the court
must assess what is in the best interest of the child and in doing so should consider a broad
range of relevant factors. The gender of the parent s ll seems to be one of the most important
factors. The courts favour mothers for young children. The preference for the mother as
custodian, especially of younger children is tradi onally explained by the alleged existence of
the greater emo onal commitments of women to children.34 However, the gender of· the
parent is not considered for the purpose of matching children with a parent of the same sex.
35 The court can leave the parental authority with both parents, only if they present the
agreement and it is reasonable to believe that they will co-operate in ma ers concerning the
child. There are no specific requirements concerning the content of the agreement. The courts
usually demand that the document signed by both parents contains the following basic
arrangements concerning: • The child's place of residence. • The contacts of the non-custodial
parent with the child. • Issues that would require joint decisions by the parents. • The mode
of communica on between the parents. Regardless of parental authority, the parents and
child have the right and duty to maintain contact with each other. 36 If parents living
separately are not able to reach an agreement as to the way of maintaining contact with the
child, the court will decide on visita on rights, taking into account the reasonable wishes of
the child. 37 Contact with the child can include, for example, visi ng the child, taking the child
outside his place of residence, direct and distant communica on and maintaining
correspondence. 38 The parent not granted custody in divorce proceedings is en tled to
visita on rights,39 unless it would not be in the best interest of the child. If it is in the child's
best interest, the court can limit visita on rights. The court can limit 169 contact by prohibi ng
the parent from taking the child outside his place of residence or allowing the parent to meet
the child only in the presence of the other parent or another person. The court can also limit
access to the child by specific kinds of distance communica on or prohibit distance
communica on. Where the visit seriously endangers the child; (for example, in the case of
severe physical or sexual abuse), the court can deny the right of visita on.40 The FGC provides
for the discre on of the court to change contact awards.41 The FGC is silent on the specifics
of a visita on plan and therefore the courts have wide discre on in its formula on. In prac ce
the non-custodial parent is usually allowed to spend alterna ng weekends and one evening
visit during the week with the child. Holidays and school vaca ons are equally divided
between the parents. In a recent judgment in 2017, in Babiarz v. Poland, 42 the European
Court of Human Rights reminded that the European Conven on on Human Rights does not
impose legaliza on of divorce, nor does it contain an individual right to divorce; reitera ng its
2016 decision in Andrzej Piotrowski v. Poland. 43 Both cases involved the refusal of the Polish
jurisdic on to grant divorce to unfaithful husbands in view of the refusal of their legi mate
wives. In Babiarz, the applicant, married in 1997, le his infer le wife in 2005 to live with
another woman with whom he had a child. In 2006, he filed a divorce pe on, which was
refused, considering that he alone was responsible for the deteriora on of the marriage, and
that his wife had legi mate mo ves to be opposed to the divorce. In Poland, when divorce is
filed for by the offender spouse, it can only be granted with the consent of the abandoned
spouse, except when there is evidence that this refusal is abusive. Aggrieved by this decision,
he lodged a complaint with the European Court of Human Rights alleging viola on of his right
to respect for his private and family life and his right to marry to find a family, as guaranteed
by Ar cles 8 and 12 o he European Conven on on Human Rights. He contended that he has
the right to marry his current companion and that he was prevented to do so. 170 The Fourth
Sec on of the European Court concluded by five votes to two that there had been no viola on
of the Conven on. Recalling its previous decisions,44 the Court held that the Conven on does
not require the legaliza on of divorce; and that "the Court has already held that neither Ar cle
12 nor 8 of the Conven on can be interpreted as conferring on individuals a right to divorce."
While no ng that the Conven on is indeed "a living instrument to be interpreted in the light
ofpresent..:day condi ons", the Court reminded, in the light of its conclusions, that it was the
inten on of the dra ers of the Conven on to explicitly exclude the right to divorce. The
European Centre for Law and Jus ce (ECLJ) had also emphasized that the primary purpose of
the right "to marry and find a family" is to provide a stable social framework for the founding
of a family. Accordingly, this right cannot contain a right to "un-marry", just as the right to life
cannot be interpreted as containing a right to death. 45 A er recalling the detailed
examina on of the case by the Polish courts, the judges concluded that they could not find a
viola on of the Conven on, even though a child had been born of the new rela onship, that
the la er seems stable, and that the bond of marriage seemed to be permanently altered.
Judging otherwise, the Court explained, would mean that divorce should be granted to any
person who decides to leave his spouse and to have a child with another partner, regardless
of na onal law. As regards the protec on of family life by the applicant and his new partner,
the judges note that the protec on afforded by the Conven on 46 to families and de facto
(unmarried) rela onships does not contain a right to a specific legal recogni on of this
rela onship. 47 However, the President of the Chamber, Mr. Andras Sajo expressed his dissent.
He considered that the Conven on guarantees a right not to be forced to remain married; and
that this right prevails over that of the other spouse to remain married. He also considered
that a person already married con nues to enjoy the right to marry, that is to say to remarry,
which implies the possibility to divorce. It is submi ed that the majority view seems to be
ra onal. 171 7.3 The Law in Bri sh Virgin Islands The law that applies in the Bri sh Virgin
Islands to divorce, and the financial consequences of divorce, is found primarily in the
Matrimonial Proceedings and Property Act, 1995. The sole ground of divorce is irretrievable
breakdown of marriage. 48 The statutory provision governing en tlement to spousal
maintenance clearly discriminates against men. 49 With regard to asset division upon divorce,
the law provides the courts with enormous discre on. 50 In Findlay v. Findlay, 51 the Eastern
Caribbean Supreme Court applied the excep on to the "yards ck of equality." The judge,
quo ng an English case law52 observed that, "When their partnership ends, each is en tled
to an equal share of the partnership, unless there is a good reason to the contrary. Fairness
requires no less. But I emphasize the qualifYing phrase "unless there is good reason to the
contrary. " The yards ck of equality is to be applied as an aid, not a rule." In the instant case,
the Court determined that there was "good reason to the contrary" since the contribu ons
made by the respondent to the welfare of the family were minimal. The Child Maintenance
and Access Bill, 2016 that is expected to ensure that both parents have access to their children
through appropriate arrangements, is pending before the legislature. 53 The bill was proposed
by the Ministry of Health and Social Development to address the concerns and challenges
presented in the Magistrate's Code of Procedure (MCP), namely chapter 44 rela ng to the
maintenance of children. Under the current legisla on, child maintenance is a regular, reliable
financial support that helps towards a child's everyday living costs. The MCP provides the laws
of the Virgin Islands that govern the jurisdic on of magistrates to hear and determine
affilia on ma ers. Challenges exist under sec on 115 and 118 which provides the principal
methods of enforcement. The bill seeks to introduce other interven ons for addressing a
parent's or guardian's failure to comply with the s pula ons for maintenance. The alterna ves
of media on or measures such as suspension of a license, garnishing 172 of wages or an
a achment order are also proposed as a first line of interven on prior to a term of
imprisonment. The bill also provides for each parent and a person who has assumed
responsibility for a child to be en tled to have access to that child. In addi on, a provision is
made for considera on to be given to what is in the best interest of the child, when making
an order for access. Gender neutrality with children born out of wedlock con nues to be a
concern, as a non-custodial father is duty bound to pay maintenance to the custodial mother
but the mother is not bound to pay the father. Moreover, an order is not enforceable a er the
18th birthday of a child, and no account is taken of a child with special needs who may require
support for the remainder of his or her life. These issues are addressed in the new legisla on.
The proposed legisla on makes no dis nc on between a child or children born in marriage
and those born out of wedlock. It further makes provision where each parent of the child has
an obliga on to provide for the child or children. 7. 4 The Australian Law The Family Law
Amendment (Shared Parental Responsibility) Act 2006 which came into force on July 1, 2006,
drama cally changed Australia's child custody law: It places an increased focus on the rights
of children to have a meaningful rela onship with both their parents and to be protected from
harm. The law also encourages parents to equally share responsibility for their children, a er
separa on. Most cri cally, the law sets forth a presump on that it is in the best interests of
the child for each of the child's parents to have equal shared parental responsibility. In Goode
& Goode, 54 the Family Court of Australia summarized some of the cri cal changes as follows:
• Unless the Court makes an order changing the statutory conferral of joint parental
responsibility, S. 61C (1) provides that un l a child turns 18, each of the child's parents have
parental responsibility towards the child. Parental responsibility means all the du es, powers,
and authority which by law 173 parents have in rela on to children and parental responsibility
is not displaced except by order of the Court or the provisions of a paren ng plan made
between the par es. • The making of a paren ng order triggers the applica on of a
presump on that it is in the best interests of the child for each of the child's parents to have
equal shared parental responsibility. That presump on must be applied unless there are
reasonable grounds to believe that a parent or a person who lives with a parent has engaged
in abuse of the child or family violence. 5 5 • If it is appropriate to apply the presump on, it
is to be applied in rela on to both final and interim orders unless, in the case of the making
of an interim order, the Court considers it would not be appropriate in the circumstances to
apply it. 56 • The presump on may be rebu ed where the Court is sa sfied that the
applica on of a presump on of equal shared parental responsibility would conflict with the
best interests of the child. 57 • When the presump on is applied, the first thing the Court
must do is to consider making an order if it is consistent with the best interests of the child
and reasonably prac cable for the child to spend equal me with each of the parents. If equal
me is not in the interests of the child or reasonably prac cable the Court must go on to
consider making an order if it is consistent with the best interests of the child and reasonably
prac cable for the child to spend substan al and significant me with each of the parents. 58
• The Act provides guidance as to the meaning of substan al and significant me:59 The
concept of substan al and significant me is defined to mean: (a) the me the child spends
with the parent includes both:(i) days that fall on weekends and holidays; and(ii) days that do
not fall on weekends and holidays; and (b) the me the child spends with the parent allows
the parent to be involved in: (i) the child's daily rou ne; and (ii) occasions and events 174 that
are of par cular significance to the child; and (c) the me the child spends with the parent
allows the child to be involved in occasions and events that are of special significance to the
parent. • Where neither concept of equal me nor substan al and significant me delivers an
outcome that promotes the child's best interests, then the issue is at large and to be
determined in accordance with the child's best interests. • When the presump on of equal
shared parental responsibility is not applied, the Court is at large to consider what
arrangements will best promote the child's best interests, including, if the Court considers it
appropriate, an order that the child spend equal or substan al and significant me with each
of the parents. These considera ons would par cularly be so if one or other of the par es
was seeking an order for equal or substan al and significant me but, as the best interests of
the child are the paramount considera on, the Court may consider making such orders
whenever it would be in the best interests of the child to do so a er affording procedural
fairness to the par es. • The child's best interests remain the overriding considera on. 7.5
Law of the People's Republic of China The Marriage Law of the People's Republic of China 60
requires that: a marriage system based on freedom, monogamy and equality between man
and woman shall be implemented; and the lawful rights and interests of women, children and
old people shall be protected. 61 Family members shall respect the old, take good care of the
underage, and help each other so as to maintain an equal, harmonious and . cultured
matrimonial and familial rela onship. 62 Both husband and wife shall be equal in familial
status.63Both husband and wife shall be under the obliga on of following the policy o irth
control.64 The law further provides that the following proper es incurred during the
existence of marriage shall be jointly owned by both husband and wife: (a) wages and
bonuses; (b) any income derived from produc on or management; (c) any 175 income derived
from inteliectual property; (d) any property inherited or bestowed, with the excep on of
those as men oned in this law; (e) other property that shall be jointly owned. Both husband
and wife shall have equal rights in the disposal of jointly owned property. 65 Moreover, the
husband and wife shall be under the obliga on of suppor ng each other. Where either party
fails to perform the obliga on of suppor ng the other party, the party that needs support
shall be en tled to ask the other party to pay aliments.66 Parents shall be under the obliga on
of upbringing and educa ng their children. Where the parents fail to perform their
obliga ons, the underage children and the children without the ability to live an independent
life shall be en tled to ask their parents to pay for aliments. It shall be forbidden to drown or
desert infants or commit any kind of infan cide. 67 Parents shall have the rights and
obliga ons of protec ng and educa ng their children. 68 Both husband and wife shall be
en tled to inherit the property of each other. Both parent and child shall be en tled to inherit
the property of each other.69 A natural child shall have the equal rights of a legi mate child,
and shall not be harmed or discriminated against by any person. The natural father or mother
that does not directly upbring his or her natural child shall undertake the expenses for the
living and educa on of the natural child, un l the child is able to live an independent life. 70
A notable feature of the law is that, it casts an obliga on upon the grandparents also: capable
grandparents and maternal grandparents shall be under the obliga on of upbringing the
grandchildren and maternal grandchildren whose parents have deceased or are incapable of
upbringing their underage children.71 Similarly, capable elder brothers and sisters shall be
under the obliga on of suppor ng their younger brothers and sisters whose parents have
deceased or whose parents are incapable of suppor ng them. The younger brothers and
sisters who have been brought up by the elder brothers and sisters shall be under the
obliga on of suppor ng their elder brothers and sisters who are without labour capabili es
and without. sources of living aliments. 72 176 In China, divorce shall be allowed, if both
husband and wife are willing to divorce. Both par es shall apply to the marriage registra on
authority for divorce. The marriage registra on authority issues a cer ficate of divorce a er
confirming that both par es are indeed willing to divorce and have made proper
arrangements for their children and have properly disposed of their property. 73 The husband
may not apply for divorce when his wife is pregnant or within one year a er giving birth to a
child or within six months a er termina ng gesta on. This restric on shall not apply to the
case where the wife applies for divorce or the Peoples court deems it necessary to accept the
applica on of the husband for divorce.74 The rela onship between parents and children does
not terminate due to the divorce of parents. A er the divorce of the parents, the children
remain the children of both par es; no ma er they are supported directly by either the father
or niother. Both father and mother shall, a er divorce, have right and obliga on of upbringing
their children. It is the principle that the children, during lacta on, shall be brought up by their
mother a er the divorce of the parents. If any dispute arises concerning which party shall
bring up the children beyond lacta on, such dispute shall be se led by the People's court
according to the specific condi ons of both par es and in light of protec ng the rights and
interests of the children. 75 If, a er the divorce of parents, the children are to be brought up
by either party, the other party shall undertake a part or all of the necessary living and
educa on expenses. The amount and term of payment shall be agreed upon by both par es.
If no agreement is achieved, the amount and term shall be decided by the People's court. No
agreement or judgment concerning the expenses for the living and educa on of the children
may in no way prevent the children from making reasonable requests, where necessary, to
either parent for an amount beyond the amount as determined in the said agreement or
judgment. 76 A er divorce, the parent who does not directly bring up the children has the
right to visit the children, and the other party has the obliga on to give assistance. The way
and me for exercising the right of visi ng children shall be agreed upon by the par es
concerned. In case no agreement is achieved, they shall 177 be decided by the People's court.
If the visit of either the father or mother is harmful to the soundness of the body and mind of
the children, the said right shall be terminated by the People's court. When the reasons for
termina ng the said right disappear, the right shall be resumed. 77 At the me of divorce,
both husband . and wife shall agree upon the disposal of the jointly owned property; if they
fail to come to any agreement, the People's court shall decide the disposal thereof, taking into
considera on the actual circumstances of the property and following the principle of
favouring the children and the wife. The rights and interests that both husband and wife enjoy
in the contracted management of land shall be protected by law. 78 In case both husband and
wife agree to separately own the property they respec vely obtain during the existence of
their marriage and either of them has spent considerably more effort on suppor ng children,
taking care of the old or assis ng the other party in work etc., this party shall be en tled to
demand the other party to make compensa ons at the me of divorce, and the requested
party shall make compensa ons.79 If, at the me of divorce, either party has difficul es in
life, the other party shall render appropriate assistance from his or her personal property like
house, etc. Specific arrangements shall be agreed upon by both par es. In case no agreement
is agreed upon, the people's court shall make a decision. 80 Another striking feature of the
Chinese law is that, in any of the following circumstances which has led to the divorce of
husband and wife, the innocent party shall be en tled to claim damages: (a) bigamy; (b)
cohabita on between a person who has a spouse but co-habitats with a third person; (c)
familial violence; and (d) maltrea ng or deser ng any family member. 81 Moreover, in case
any person refuses to execute the judgment or decision on the payment of expenses for
upbringing, suppor ng or maintenance, the par oning or inheritance of property or visi ng
the children, the execu on may be enforced by the people's court in accordance with the
law.82 178 7.6 The Japanese Child Support Law Japan has no substan ve laws for the
protec on of children's rights in cases of parental separa on. There are no statutes of guiding
principles to determine the best interests of minor children when their parents' divorce or
cease cohabita ng. 83 The principle source of laws governing divorce and child custody is
Japan's Civil Code. The Civil Code also provides the basic rules governing interpersonal legal
rela onships in society, such as contract, tort, inheritance, property, and other basic areas of
law. However, a significant amount of family law is judicially created. For example, there are
no clear statutory provisions for visita on in the Civil Code, and the Supreme Court of Japan
has only recently ruled that visita on orders are within the scope of authority to make custody
determina ons granted by the Code. 84 It should be noted at the ~utset that the Civil Code
only really addresses the parent-child rela onship within the framework of marriage and
divorce. Therefore, if a child is born out of wedlock, the father effec vely has no rights. And
since many of the most difficult child custody and visita on issues arise while parents are
estranged but s ll legally married, courts have dealt with these cases by effec vely amending
the clear wording of the Civil Code through interpreta on. 85 As far as child custody and
visita on is concerned, there is no substan ve law in Japan. There is procedure but no
substance. Decisions about a child's welfare are administra ve disposi ons based on the
internally generated rules, procedures and values of a judicial bureaucracy. Even where there
are clear laws, such as the provisions requiring fundamental gender equality in the
Cons tu on and the Law for Adjudica on of Domes c Rela ons (LADR) or the rights espoused
in the Conven on, they may not be applied if they conflict with the goal of preserving judicial
authority, or the judiciary's own family values. Custody and visita on rights can be bypassed
at the discre on of judges and other family court personnel to further the judiciary's
bureaucra c impera ves, unrelated to the best interests of children. Some may a ribute
Japanese custody law to culture, to some "tradi onal" no on that one parent should
disappear a er divorce, or that Japanese people regard children as property.86 179 In Japan,
since 2003, there have been two ways to calculate child support. The first way was through
the use of certain charts created by the "Tokyo and Osaka Child Support Research Group"
which determined child support obliga ons based upon the income levels of the parents and
the age(s) of the children. The charts are published on the website of the Tokyo Family Court.
They are simply to applied since all that is required is the income of each parent, whether the
income is salary or self-employment and the number of children. The charts make it
inappropriate to use the "child support calculators" for Japan that are s ll on several online
web sites. 87 The second way to calculate child support in Japan is to apply an extremely
complicated system. According to this system, gross income figures are reduced by a range of
expenses, including na onal and state taxes, social insurance contribu ons, employment-
related expenses and so-called "special" expenses, including living expenses. The resul ng
figures are then used in specified formulas. The expense figures are usually calculated with
reference to standardized tables, which vary according to the locality within Japan. The results
of applying the formulas are usually significantly lower than applying the figures that are
produced by the charts. In prac ce, Japanese courts rarely issue child support orders resul ng
from contested situa ons. 88 Instead, the par es themselves usually nego ate the figures,
o en with the assistance of court-appointed mediators. The figures in the charts are merely
"maximum" star ng points, from which significant reduc ons are typically made for special
circumstances, such as the father's health problems, or his pre-exis ng obliga ons to support
other family members. The system to collect child support is extremely weak in Japan. Indeed,
surveys show that that only 10 to 20 percent of fathers pay the correct level of child support.
For this reason, child support payments are invariably reduced from the chart levels in order
to secure the ac ve consent of father. 89 In 2010, Japan's Liberal Democra c Party introduced
child-raising support payments called "kodomo teate." These payments replaced the previous
child 180 support system and were intended to combat the country's low birthrate, by making
it easier for families to raise children in Japan. Facing massive reconstruc on costs a er the
March 11, 2011 tsunami and earthquake, Japan's na onal government revised the kodomo
teate law in late 2011, changing payment amounts and eligibility requirements.90 In 2016,
the vic ms of parental abduc on held a rally to push for joint custody rights and to raise
awareness of the plight faced by their offspring's when marriages fall apart.91 Demonstrators
also carried signs reading "More visita on me" and "Affec on from both parents to children"
during the hour-long march on Children's Day. "I want people to know whether children have
the right to see both of their parents; and that parents are responsible for accomplishing that,"
said Daisuke Tanaka, the organizer of the event. "It's usual for the court to give custody to the
parent who lives with the child, and that is why there are so many cases of abduc on. If there
is joint custody, be er conversa ons and nego a ons would likely take place," he said. The
biggest issue is that Japanese law only allows custody to be awarded to one parent. The civil
code requires parents to decide on visita on and custody arrangements 92 but research
shows people are increasingly forgoing such discussions and heading straight to media on by
court. In fiscal 2015, 12,264 cases of media on involving visita on rights were accepted in
family courts na onwide, almost double from 10 years earlier, according to court data. A
group of lawmakers is dra ing a bill to help divorced or separated parents see their children
more easily, but the issue has yet to gain trac on. Some are concerned that parents with a
history of domes c violence are too dangerous to be granted visita on rights.93 Moreover,
court orders· direc ng a divorced parent to hand over a child to his or her former spouse are
o en ignored;94 largely because of absence of any specific legal procedures governing
enforcement of such a custody transfer. A revision of the relevant law is impera ve to ensure
that court decisions on child custody are enforced. There are two important points for
considera on- crea ng 181 a clear rule for the compulsory enforcement of a court order by a
legally empowered official and imposing financial penal es on the par es defying court orders
to get them to comply. Either way, due considera on should be paid to the welfare of the
children, including the poten al psychological damage from the procedure. 95 In the absence
of a specific procedure for custody transfers between divorced parents, the Civil Execu on
Law's provision on the transfer of movable property 96 is currently referred to in enforcing a
court ruling ordering a divorced parent to hand over a child to the other party. But it would
not stand to reason to treat children as if they were "property." In the case of interna onal
marriages, the compulsory execu on of a court order on a custody transfer is possible under
the 1980 Conven on on the Civil Aspects of Interna onal Child Abduc on, popularly known
as the Hague Conven on. 97 A law se ng domes c procedures needed to implement the
conven on has been enacted and put in place. Last year, Jus ce Minister, Katsutoshi Kaneda
asked the Legisla ve Council to look into revising the Civil Execu on Law to set down specific
procedures to enforce court decisions ordering the handover of children between divorced
parents. Based on its recommenda on, the government is expected to submit a bill for the
revision as early as next year. 7. 7 Family Law in Israel The primary source of law in ma ers of
family law is found both in English common law and in statutes. Today there is a greater impact
of US law. Israel maintains a system of concurrent jurisdic on between religious and civil
courts. Approximately 80 percent of the Israeli popula on is Jewish and therefore the
overwhelming majority of case law and legisla on in the area of matrimonial law relates to
the implementa on of Jewish law. Legisla on enacted during the Bri sh regime is s ll in force.
The Pales ne Order in Council 1922 determines ma ers of personal status according to the
182 religious affilia on of each individual. The Order includes a list of recognized religious
communi es who are subject to those communi es' laws in all ma ers of personal status.
Those that are not affiliated with any of the listed religious communi es are subject to civil
law. The Spouses (Property Rela ons) Law 1973 encodes many of the principles that existed
under relevant case law. The principal doctrine of this law states that there is a complete
separa on of each spouses' property during the marriage. The par es' assets with certain
specified excep ons are considered in total at the me of divorce and divided between them.
98 The Legal Capacity and Guardianship Law 1962 determine the rela onship between
parents and children. This provides that both parents have equal custodial rights in rela on to
their children. These rights include ma ers of educa on, health, welfare and place of
residence.99 The Family Amendment (Maintenance) Law 1959 ((herein a er, the
Maintenance Law) establishes the basis for the obliga on to pay child support for minor
children up to the age of 18 years. Matrimonial ma ers are divided into several jurisdic onal
categories. The dissolu on of marriage is within the exclusive domain of religious courts. The
Rabbinical Courts Act (Marriage and Divorce) states that applica ons regarding ma ers of
marriage between Jewish spouses are in the exclusive jurisdic on of the rabbinical courts.
Similar legisla ons exist regarding exclusive jurisdic on of Muslim and Catholic courts.
Ma ers that are ancillary to divorce are within the concurrent jurisdic on of both civil and
religious courts. Therefore, ma ers of division of assets, child custody and child maintenance
can be adjudicated by either of the separate legal systems. The Supreme Court in Israel, si ng
in its capacity as the High Court of Jus ce, can set aside decisions made by supreme religious
courts. 10° Furthermore, where religious courts fail to comply with legisla on that specifically
binds them, the Supreme Court can also intercede. 101 183 The Supreme Court has developed
a set of rules that are not found in any legisla ve enactment to limit the damage to principles
of equity and due process in religious courts. For example, the Supreme Court has established
a good faith test for the inclusion of ancillary ma ers to divorce proceedings filed in a
rabbinical court. Where divorce pe ons include ma ers of child custody or support or
division of assets solely for the purpose of preven ng the family court from li ga ng these
issues, the rabbinical court's jurisdic on will be denied. 102 This is due to the generally inferior
status of women in the religious courts, who therefore prefer to li gate in the civil courts. The
Supreme Court has also held that the religious courts, although generally not subject to civil
law, are required to implement certain fundamental rights. For example, the Equal Protec on
of Women Law must be implemented when the religious courts are determining distribu on
of marital assets. The Supreme Court has also held that ma ers of child support cannot be
determined by the rabbinical court, even if it has a ained ini al jurisdic on, without the
express agreement of the mother. 103 Ac ons regarding children are controlled by the Legal
Capacity and Guardianship Law 1962. The courts in Israel are competent to act in any manner
regarding minor children when the need to do so arises iri. Israel. 104 This gives the court
broad jurisdic on to act in ma ers concerning minors, even when there are no other pending
proceedings between the parents. Child support is within the jurisdic on of civil courts and
can only be adjudicated in the religious courts if the wife gives explicit consent: A person is
obliged to support his or her minor children ~ l they reach the age of 18 years. 105 Between
the ages of 18 and 21 years, a parent is responsible for one-third of the monthly support
amount paid before the age of 18 years. 106 This obliga on is con ngent on the child serving
in compulsory military service or studying full me in an ins tute of higher learning. The
religious law applicable to Jews divides the obliga on to pay child support into different
categories: 184 1. Un l the age of six years, the obliga on to pay child support is the exclusive
responsibility of the father, without regard to his financial ability. ii. Between the ages of 6-15
years, the father is exclusively responsible only for the child's necessi es. iii. From the age of
15 years un l the child a ain the age of 18 years, a father's obliga on to pay child support is
not absolute and depends on his ability to bear the burden. In prac ce, in rela on to an
unemployed father with no assets: i. The courts will order the father to pay a minimum level
of child support for a child up to the age of 15 years. ii. Between the ages of 15 -18 years, the
father will only be obliged to pay support, if he has the financial ability to do so. iii. From the
age of 15 years, the mother may also be obliged to contribute to the support of the child
according to her ability to pay, as the obliga on is not exclusively on the father. Israeli law does
not have child support guidelines and therefore amounts vary from case to case even where
incomes and needs are the same. The standard under Israeli law is that the child is supposed
to be able to con nue the same standard of living to which he or she was accustomed prior
to the divorce. 107 Divorce agreements between the parents which establish child support
levels even when ra fied by the court do not bind the children. A child can file an ac on
against the parent to increase the level of child support beyond the amount set in the divorce
agreement without concern of estoppels. 108 In cases where the father is not capable of
providing for the child's minimal requirements, the grandparents of the child can be sued and
obliged to pay support where they have the financial means to do so. A child who 185
unjus fiably refuses all contact with the father and is old enough to do so knowingly may have
their child support payments reduced by the court. 109 In cases where the personal status
law is Islamic, the father has an absolute obliga on to pay child support un l the child reaches
the age of 18 years. Under Ar cle 52 of the Pales ne Order in Council, the applicable Islamic
law is the 1917 O oman Family Law. This law is based on the Hanafi school of thought.
Interpreta on of that law therefore must be based on the Hanafi Shari a Law. 110 The
obliga on of the father to pay child suppo~ under Muslim Law differen ates between sons
and daughters. The father is obliged to support his son to the age where he can support
himself. It is customary that this age is a ained with the comple on of the child's studies. The
obliga on to support a daughter is un l she is married, without any age limita on. Under
Muslim law a wealthy father is obligated to pay support in abundance (yasar) and a poor father
is only obligated to pay minimum necessi es (a' aser). The Legal Capacity and Guardianship
Law 1962 states that both parents are equal guardians of their children. This applies whether
or not the parents are married. The courts interpret this to mean that both parents have an
equal right to determine significant issues regarding health, educa on and welfare of their
children. Where parents are unable to agree, the courts are empowered to make the
determina on, generally a er receiving a report from the social services agency or a
psychological evalua on by a court appointed expert. The law creates a legal presump on
that the custody of a child, un l the age of six, is with the mother. In cases where both parents
are considered equally suited to have custody, the presump on will work in favour of the
mother. This presump on can be overcome by showing that it is not in the child's best
interests. A government-appointed commi ee has spent six years developing
recommenda ons to revise and update child custody law. The report was submi ed in 2011
and is yet to be adopted. 111 Despite the fact that no legisla ve ac on has yet been taken,
the report has already been cited by the courts while 186 referring to some of its
recommenda ons. The most controversial recommenda on was to abandon the legal
presump on of custody for children up to the age of six. The commi ee recommended
replacing the current legal presump on with a presump on of joint parental responsibility
from birth. The guiding principle in determining custody will always be the best interests of
the child, as per Ar cle 18 of the UN Conven on on the Rights of the Child 1989. 112 Among
the considera ons, which the commi ee recommended be weighed by the court in custody
ma ers, are the following: • The child's right to have direct and regular contact with both
parents. • The care which each parent gave the child prior to the divorce. • The ability to
provide for the child's development, stability and par cular needs. • The willingness and
ability of each parent to ensure the child's rights. The commi ee also recommended that
terms such as custody and visita on be replaced with "parental responsibility". Some courts
have adopted the report's terminology, which is meant to create a different percep on of
children's interests in divorce cases. Today, both parents remain guardians of their children.
The non-primary custodial parent has rights of visita on that typically include every other
weekend, once or twice during the week, which may or may not include overnights, and half
the school holidays and vaca on. Courts have recently begun to adopt joint physical custody
as a possible arrangement a er the breakdown of the marriage. 113 7.8 The Law in the United
States Custody issues typically arise in proceedings involving dissolu on of marriage, as well
as in paternity, annulment, and other legal proceedings in which children are involved. In most
jurisdic ons in the United States, the issue of which parent the child will reside with is
determined in accordance with the best interests of the child standard. 114 In rare cases
custody may be awarded to 187 somebody other than a parent, but only a er the
fundamental right afforded to biological parent's has been overcome or where the third party
has an established role that is in the manner of a parent. 115 When a child's p~rents are not
married, it is necessary to establish paternity before issues of child custody or support may be
determined by a court. In the decades leading up to the seven es child custody ba les were
rare, and in most cases the mother of minor children would receive custody. Since the
seven es, as custody laws have been made gender-neutral, contested custody cases have
increased as have cases in which the children are placed in the primary ' 116 custody of the
father. Family law proceedings that involve issues of residence and contact o en generate the
most acrimonious disputes. In extreme cases, one parent may accuse the other of trying to
"tum" the childrel). against him or her, allege some form of emo onal, physical, or even sexual
abuse by the other parent, the "residen al" parent may disrupt the other parent's contact or
communica on with the children, or a parent may remove the child from the jurisdic on in
viola on of court orders, · so as to frustrate the other parent's contact with the children. 117
Following the ra fica on of the United Na ons Conven on on the Rights of the Child in most
countries other than the United States which has not ra fied the conven on, terms such as
"custody" and "access" (known as "visita on" in the United States) have been superseded by
the concepts of "residence" and "contact". Instead of a parent having "custody" of or "access"
to a child, a child is now said to "reside" or have "contact" with a parent. Courts and legal
professionals within the U.S. may use terms such as "paren ng me" instead of custody and
visita on. 118 The goal of the newer, alterna ve terminology is to eliminate the dis nc on
between custodial and noncustodial parents and to be er focus on the best interests of the
children by cra ing schedules that meet the developmental needs of the children. 119 For
example, small children may need shorter, more frequent me with parents, 188 whereas
older children and teenagers can tolerate and may demand less frequent shi s, but longer
blocks of me with each parent. 120 In State of Illinois, child support was based on the net
income of the child support payer. It was for one child (20 percent), two (28 percent), three
child (32 percent) and for four(40 percent). Net income was defined as 'gross income minus
certain specified deduc ons'. 121 The amount of paren ng me that each parent has with
the child was not considered. However, some Appellate Courts opined that the paren ng me
may also be considered. In the fall of 2016, the Illinois Legislature passed a new statute that
completely changed the way child support was calculated in Illinois. The new law took effect
on July 1, 2017. The new law eliminates the former percentages and creates what is called the
income shared approach. 122 For the first me, the new statute defines "income" explicitly
clear, so that spousal maintenance, alimony, received pursuant to a court order 'is income for
child support purposes. 123 The Court can also order a contribu on to extra-curricular
ac vi es and school expenses, child care expenses, which can include camps when school is
not in session. Unless and un l the Illinois Department of Healthcare and Family Services
comes out with its guidelines and tables, it is impossible to predict if child support under the
new law will be greater or lesser than under current law. Mary Ann Mason aptly sums up the
child custody law in the United States over the last half century thus: 124 "In the dizzying shi s
and changes of law regarding who had rights to the child over the past fi y years, all
supposedly based on the "best interest of the child," one voice was almost never heard or
acknowledged, that of the child. During this same me period, the law determined that a child
who steals a candy bar is en tled to a lawyer. Yet a child subject to a brutal tug of war between
adults remained powerless. The wishes and feelings of the child, even teenagers, were rarely
sought or even considered. Increasingly the United States has grown out of step with the rest
of the world in not focusing on the child's interests and developmental needs. We are the only
na on that has signed but not ra fied the 1989 United Na ons Conven on on the Rights of
the 189 Child, which states that children have the right to a nurturing environment in
accordance with their developmental needs, 125 the right to legal representa on, 126 and
the right to economic and emo onal support from their parents and the state." 127 Several
other countries, including England and Scotland, have issued explicit legisla on regarding the
rights of children, which guarantee that children have representa on in all administra ve and
legal proceedings that pertain to them. In some states a small movement has begun in the
new millennium which considers the wishes and feelings of children themselves, not just the
parents, in configuring what was in their best interests. Colorado and several other states have
re-thought their custody laws and moved away from parental rights to parental
responsibili es; children are provided with special advocates in all child custody disputes to
present all available evidence. 128 Many courts across the country are combining juvenile and
family courts so that all issues affec ng children can be heard in a court prepared for children's
issues, where children are listened to and can receive support from social services. 129 S ll,
without adop ng the principles of the U.N. Conven on on the Rights of the Child, there will
be no na onal consensus on the "best interests of the child." In the. United States, the phrase
'child support' implies 'the court-ordered payment by one parent to the custodial parent of a
minor child a er divorce or separa on as a contribu on to the costs of raising a child. All states
have set guidelines to determine child support. These guidelines use different formulas based
upon the income of either or both parents, the number of children, and various other relevant
factors. There are typically three basic child support calcula on models: 130 • Income Shares
Model The founda on of this model is the idea that a child should receive the same propor on
of parental income that the child would have received, had the parents not divorced. It
calculates child support as the es mated share of each parent's income that would have been
appor oned to the child if they had been 190 living in an intact household. The percentage to
be applied is determined by the number of children, and in some states, by the ages of the
children. • Percentage of Income Model This model uses only the non-custodial parent's
income, either gross or net, to determine child support. It sets support as a percentage of that
parent's income. There are two methods used: the flat percentage model or the varying
percentage model. With the flat percentage applica on, the.percentage of income allocated
to the child remains constant at all income levels. When using the varying percentage method,
the amount allocated varies according to the level of income. As in the Income Shares Model,
the percentage of support to be applied is determined by the number of children, and in some
states, based on the ages of the children. • Melson Formula Model This ·model was named
a er Judge Elwood F. Mel wood of the Delaware Family Court. It was adopted by the Delaware
Supreme Court in Dalton v. Clanton. 131 It is a more complicated version of the income shares
model, but recognizes three basic beliefs: i. Support of others is impossible un l one's own
basic support needs are met; n. Further enhancement of the parents' own economic status
should not be allowed un l the parents jointly, in propor on to their incomes, meet the basic
poverty level needs of their children; and iii. Incorpora ng a Standard of Living Adjustment
(SOLA) reflects that parents should share their addi onal incomes with their children,
improving their children's standard ofliving as their own standard of living improves. This
model assigns to each parent a poverty self-support reserve. It then determines the total
remaining combined parental income, the non-custodial parent's percentage thereof, and
applies the non-custodial parent's percentage to a 191 standard primary support obliga on
based on the number of children. A er the primary support obliga on is subtracted, the
formula then assesses the noncustodial parent an addi onal percentage of his/her remaining
income. Laws governing child support in divorce cases vary from state to state. 7.9 The Law in
England and Wales Common law is the basis of the legal system of England and Wales. There
IS no codified system of law. Family law is found in Acts of Parliament, as applied and
interpreted by the Higher Courts. The Matrimonial Causes Act 1973 (MCA 1973) is the king
pin legisla on rela ng to divorce and financial proceedings. The Children Act 1989 (CA 1989)
is the primary source of law in rela on to children, their upbringing and welfare. 132 A number
of EC Regula ons apply in England and Wales, notably Regula on (EC) 220112003 concerning
jurisdic on and the recogni on and enforcement of judgments in matrimonial ma ers and
ma ers of parental responsibility (Brussels II Regula on). The UK has also ra fied a number
of interna onal conven ons dealing with the interna onal aspects of family law, including the
Hague Conven on on the Civil Aspects of Interna onal Child Abduc on 1980 (Hague
Conven on). The court has a wide discre on in rela on to the division of assets on divorce or
judicial separa on. It has the power to order a party to: (i) make periodical payments to the
other party (some mes known as maintenance); (ii) pay a lump sum or sums to the other
party; (iii) make periodical payments for the benefit of any children (known as child
maintenance) subject to certain restric ons set out in child support legisla on; (iv) pay a lump
sum for the benefit of any children; (v) transfer specified property to the other party; (vi) make
a se lement of specified property (that is, set up in trust, for the benefit of the other party
and/or a child of the family); (vii) vary any nup al se lement or trust made for the benefit of
one of the par es; (viii) sell specified property and distribute the proceeds; and (ix)share a
pension fund. 133 192 In White 134 the House of Lords established two key principles: (i)
there should be no bias in favour of the money-earner against the home-maker. Whatever the
division of roles between the husband and wife, their contribu on to the marriage, and to the
family assets, should be seen as having equal value; and (ii) a judge exercising his discre on
should check his tenta ve views against the yards ck of equality of division and should depart
from it only if, and to the extent that fairness requires it. Judges who give a spouse less than
half of the matrimonial assets should be able to explain why they have "departed from
equality". In Miller, 135 the House of Lords par ally confirmed these principles; and added:
when dividing assets on divorce, judges should consider: (i) the needs (generously
interpreted) generated by the rela onship between the par es; (ii) compensa on for any
financial disadvantage generated by the rela onship; and (iii) the sharing of the fruits of the
matrimonial partnership. The House of Lords further reminded that the court should consider
all three, being careful to avoid double coun ng. The ul mate objec ve of the court is to give
each party an equal start on the road to independent living. In Charman, 136 the Court of
Appeal reviewed the three principles iden fied in Miller, and discussed how to apply the
principles in prac ce. The court made the general point that in the event of irreconcilable
conflict between the principles, the overriding criterion _ is fairness. 137 The legal obliga on
of the parents to support their children financially con nues a er divorce or separa on. Non-
resident parent must provide payment to the parent with care in respect of children who are
under the age of 16 or under the age of 20 and in full- me secondary educa on. For parents
who cannot agree maintenance arrangements and who are both resident in England and
Wales, there is a complex set of laws and regula ons commencing with the Child Support Act
1991 and a series of amending statutes and regula ons. These have effec vely resulted in
three child support regimes, the most recent of which is the 2008 regime, referred to as 'the
gross income scheme', which now applies to all new 193 child maintenance applica ons. Since
November 2013, all new cases have been administered by the Child Maintenance Service
(CMS) which replaced the Child Support Agency (CSA). The CMS calculates the payments using
a fixed statutory formula which works on the basis of the paying parent's yearly gross income
using informa on supplied by HM Revenue & Customs or informa on about benefits received
by unemployed parents. 138 The court can also make orders for the payment of school fees,
maintenance for step-children and where the child is passed the child support age but has a
disability which requires extra financial support. The court can also order lumpsum payments
or the se lement of property for the benefit of a child. 139Following the breakdown of a
marriage or rela onship, the parents may decide between themselves the children's living
arrangements and the contact they will have with each parent. If the parents do not agree on
the arrangements, either may apply to the court140 to determine the posi on. Previously, an
individual could apply to the court for a contact or residence order. This provision was
amended by the Children and Families Act 2014, to replace residence and contact orders with
child arrangement orders (CAO). The court may now order that the child lives with one or both
parents or spends me with a parent or someone named in the order. Where the order
provides for the child to live with both parents in their respec ve homes, me in each home
will not necessarily be equal. The concept of 'parental responsibility' is defined as "all the
rights, du es, powers, responsibili es, and authority that by law a parent of a child has in
rela on to the child and his property." 141 The fact that both parents retain parental
responsibility gives them, in theory, an equal say in major decisions in the child's life. Day-to-
day decisions will inevitably be made by the parent with whom the child resides for the
majority of the me. It is possible for more than one person to have parental responsibility
for a child at any one me. 194 The Children Act, 1989 sets out those who automa cally
acquire parental responsibility for a child; that is, the mother and the father (if married to the
mother at the me of the child's birth). When making any order, the child's welfare must be
the court's primary considera on. When determining whether an order is in the child's best
interests, the court must consider the welfare checklist set out in the CA, 1989. 142 The factors
to be considered include the child's physical, emo onal and educa onal needs, and how
capable each of their parents is of mee ng their needs. The wishes of the child may be taken
into considera on if they are of sufficient age and understanding. The recent CF A, 2014
creates a presump on that the involvement of a parent in a child's life will further the child's
welfare. 143 However, this is only the case if there is no evidence to the contrary (that is, that
the involvement will put the child at risk of suffering harm). The presump on only applies to
parents. Since the commencement of the CF A 2014, arrangements rela ng to contact with a
child now fall under the court's power to make CAOs. 144 Parents can determine
arrangements between themselves, with the court able to make an order if they are unable
to reach agreement. In all cases which come before the court, safeguarding checks are
undertaken by CAFCASS (Child & Family Court Advisory & Support Service). Where there are
allega ons of or proven domes c violence, contact may be limited to indirect means such as
cards and le ers, or may be supervised. If a parent is in breach of a CAO order, the other
parent may apply for an enforcement order for breach of which there are penal es including
a requirement to undertake unpaid work. 7.10 Law in Canada In Canada, both the federal and
provincial governments regulate family law: 145 the federal government presides over
ma ers of marriage and divorce; and the provincial government has jurisdic on over the
solemniza on of marriage and property and civil rights. Custody and child support generally
fall within the ambit of provincial legisla on. However, when issues connected with divorce
are raised, there is jurisdic on for them to be considered under federal legisla on. 195 The
Divorce Act is the federal legisla on which governs divorce and corollary relief including
custody, child support and spousal support for all of Canada's provinces and territories. 146
In Ontario, the Family Law Act (FLA) 147, specifically Part I, sets out the method by which
property is to be divided following the breakdown of marriage. Child and spousal support
obliga ons are included in Part III of the FLA, while child custody is prescribed by the Children's
Law Reform Act (CLRA). 148Canada is a "no fault" jurisdic on which means that the reason
the marriage is at an end is irrelevant to determina ons of custody, access and support. Where
there has been a breakdown of marriage, a court can grant divorce. 149 Since 1 May 1997,
child support in Ontario has been calculated in accordance with the Federal Child Support
Guidelines. The amount of support is based on the income of the payer and the number of
children living with the recipient parent. The Guidelines are grids that provide a specific
amount of support to be paid for every income level, above a minimum threshold income of
CAD$9,000, depending on the number of children for whom support is paid. Sec on 4 of the
Guidelines mandates a different approach when income exceeds CAD$150,000. However, in
prac ce the Table amounts, which are presump ve, are generally applied for incomes up to
CAD$1 million. Table child support accounts for the payer's contribu on to the costs incurred
by the recipient parent for the children's food, clothing, rent, u li es and transporta on.· In
addi on to the Table. amount, many payers must contribute to the children's special or
extraordinary expenses, such as child care, summer camp, educa on and extracurricular and
health-related expenses. Both parents must contribute to these special expenses in
propor on to their respec ve incomes. Custody refers to decision-making authority with
respect to the child, specifically over issues rela ng to educa on, religion and non-emergency
medical decisions. 196 • Provisions under the Divorce Act Either or both spouses can apply
for custody of a child following the breakdown of a marriage. The court must consider only
the best interests of the child. The willingness of the person making an applica on for custody
to facilitate the child's contact with the other parent is a factor for the court to take into
considera on. 150 • Provisions under the Children's Law Reform Act While never actually
defining the term "custody", the provincial legisla on in Ontario explicitly provides that both
parents are equally en tled to custody of the child, but where the par es separate and the
child lives with one of them with the consent or acquiescence of the other, the en tlement of
the parent with whom the child does not live is suspended un l a separa on agreement or
court order provides for custody. The parent with custody, or both parents where custody is
jointly held, must exercise their rights and responsibili es in respect of the child in accordance
with the child's best interests. 151 The legal posi on rela ng to access/contact/ visita on
following the breakdown of a rela onship or marriage can also be analyzed under the
following two heads: • Provisions under the Divorce Act A parent who is granted access has
the right to informa on about the health, educa on and welfare of the child. Courts must give
effect to the principle of maximum contact which provides that a child should have as much
contact with each spouse as possible, so long as such contact is in the child's best interest. 152
• Provisions under the Children's Law Reform Act Where a child lives with one parent a er
separa on, the other parent con nues to have en tlement to access to the child, including
the right to visit with the child and to ask and be provided with informa on about the health,
educa on and welfare of the child. 153 197 7.11 The French Law The primary sources of law
rela ng to family law in France are in the Civil Code (CC) which governs marriage;154
breakdown of a marriage;155and the welfare of children and parental responsibility. 156 The
Civil Code (CC) states that the breakdown of a marriage or a rela onship does not affect the
rules governing the exercise of parental responsibility. 157 Therefore, separated parents
con nue to exercise joint parental responsibility over their children, as provided under the
cc.1ss However, the judge may trust only one of the parents with parental responsibility taking
into considera on the best interests of the child. Serious reasons must be evidenced in order
for the judge to grant unilateral parental responsibility. In determining the prac cali es
concerning parental responsibility, the judge will take several elements into considera on: 159
(i) the agreements previously entered by the parents; (ii) the feelings expressed by the child;
(iii) the ability of each parent to assume their du es and to respect the rights of the other;
and (iv) the results of social and psychological inves ga ons. Following the breakdown of a
rela onship or marriage, the judge determines custody of the child. Two op ons are available,
and the judge decides either: (i) to award custody to one of the parents; or (ii) to allow
alternate residence (one week at the mother's place, one week at the father's place for
example). However, this last op on will only be chosen if several condi ons are met (age of
the child, availability of the parents, material condi ons of accommoda on, proximity of the
parents' places and so on). When child custody is awarded to one of the parents, the non-
custodial parent will benefit from a visita on right (for example, the first, third and fi h
weekend of each month and half of the school vaca on). Visita on rights can be denied to
the non-custodial parent but only if it is jus fied by serious reasons. The judge can also decide
that the non-custodial parent's visita on right will be exercised in a special mee ng space,
when the best interests of the child require this. Under the Civil Code (CC) similar
arrangeme~ts can be made concerning the 198 presenta on of the child. These may take
place in a special mee ng space or with the assistance of a trusted third party, when the best
interests of the child require this or when direct presenta on of the child to the other parent
presents a risk for one o hem. 160 Addi onally, the parents can agree on parental
responsibility, child custody and visita on rights, and submit to the judge their plans for the
same. The judge will ra fy the agreement, unless it does not sufficiently protect the best
interests o he child or the parents' consent has not been given freely. 161 The Civil Code (CC)
provides that each parent (whether married or not) has a duty to par cipate in the needs of
common children propor onately to their resources. France has a family benefit system based
on the number of children from the age of two upwards, and not related to the income of the
parents. Therefore, the court will take into account this amount, as well as other criteria such
as home state allowance and any income of the parents. This child support does not include
any right for the mother, for example, to have a "roof over her head". In broad terms, the
judge determines the "available" income of each parent a er deduc ng compulsory
expenses. This support is based on living costs. It may vary if the resident parent relocates far
away from the other parent. The judge has the power to decide which parent will have to pay
travel costs. Child support is taxable by the Internal Revenue Service for the creditor and
deduc ble for the debtor. The French Ministry of Jus ce has developed an indica ve table of
child support. 7.12 South African Jurisprudence In South Africa, the new family law landscape
has been introduced by the Children's Act, 2008. The Act not only introduced a change in
terminology; but has also introduced a shi in the way one thinks and conceptualizes
paradigms in family law. In the context of issues rela ng to reloca on, the terms 'custody and
access' have been replaced with the terms 'care and contact' respec vely. Care has a much
wider ambit than custody. It means not only providing for the child's daily· needs such as a
safe home, food, educa on and love, but also 199 includes promo ng the wellbeing of the
child, maintaining a sound rela onship with the child and, of paramount importance and
a ending to the best interests of the child. Both parents have these responsibili es and rights.
162 The current paradigm seems to favour the prac cal and theore cal thrust in the direc on
of shared parental responsibility and rights. It is now more readily accepted that children haye
two primary a achments, which seems to deny the assump on that men are not prima facie
nurturers and caretakers of their children. This flows into the idea that courts should grant
joint care orders so that children maintain close bonds with both parents. In all ma ers
concerning the care, protec on and wellbeing of a child the standard that the child's best
interest is of paramount importance must be applied. 163 The Act sets out a lengthy list of
factors which courts need to take into account when determining the best interests of a child:
164 the nature of the rela onship between the child and parents; the a tude of the parents
toward the child and to the exercise of parental responsibili es and rights in respect of that
child; the likely effect on the child of changed circumstances such as separa on from either or
both parents; the need for the child to remain in the care of his or her parent, family or
extended family and to maintain a connec on with his or her culture or tradi on; the child's
age, maturity, stage of development, background, physical and emo onal security and
intellectual, emo onal, social and cultural development; and the need of the child to be
brought up within a stable environment. The general principle is that both parents retain
guardianship of a child a er the dissolu on of a marriage unless the courts orders otherwise.
165 The responsibili es and rights that parents have in respect of their children include the
responsibility and right to care for the child, to maintain contact with the child, to act as a
guardian of the child; and to contribute to the maintenance of the child. 166 Unfortunately,
the Children's Act does not make provision for consent procedures for reloca on. It is clear
from sec on 18 that if a parent wishes to 200 relocate outside of South Africa the consent of
both parents is needed. However, with reloca on within the borders of South Africa, the
situa on may technically be different. The Children's Act s pulates that co-holders of
guardianship over a child can exercise their parental responsibili es and rights independently
and without the consent of the other guardian's rights. 167 This prima facie means that a
parent, with whom the child permanently resides, can independently and without the consent
of the other parent, decide to relocate with child within the country. However, the Act states
that, a child, having regard to his or her his age, maturity and stage of development, and a
person, who has parental responsibili es and rights in respect of that child, where
appropriate, must be informed of any ac on or decision taken in a ma er concerning the child
which significantly affects the child. 168 Furthermore, the Act s pulates that a co-holder of
parenta_l responsibili es and rights must consult and give considera on to the views of other
co-holders of responsibili es and rights as well as the child when making decisions which are
likely to change significantly or to have a significantly adverse effect on the coholders exercise
of parental responsibili es and rights in respect of the child. This would include decisions
which affect contact between the child and parent. 169 In Joubert v. Joubert170 in the Cape
High Court, Erasmus J found that although the primary caregiver had to ·consult the other
parent, who also has responsibili es and rights in respect of the child, this did not mean that
the primary caregiver was bound to give effect to the views and wishes of the other parent.
The court further held that a failure to give considera on to the views of the other parent and
failure to inform the other parent did not render the decision by the primary caregiver void or
invalid. However, failure to do this would render the decision subject to review. With the
paradigm shi to the idea of shared paren ng, the ques on has changed from being which
parent the child will live with to how the child's me will be shared between the parents. 201
In the HG v. CG171 the court stated that the Children's Act brought about a fundamental shi
in the parent/child rela onship and not only vested a child with certain rights but also gave
the child the opportunity to par cipate in any decision affec ng him or her. The court was
enjoined by the Act to give due considera on to the views of the children in a case. In the
present case the minor children were of an age and level of maturity (14 and 11 years of age)
to make an informed decision, namely to preserve the status quo of joint care by both parents
and to reject reloca on to Dubai. 7.13 The Law in Nether lands The current sources of law for
divorce in The Netherlands are the: Dutch Civil Code, 172and the Dutch Code of Civil
Procedure173 In addi on, the provisions of the European Conven on on Human Rights
(ECHR) and the case law handed down by the Dutch Supreme Court and the lower Dutch
courts, are important sources of law. The current source of law for the welfare of children is
the Dutch Civil Code. 174 Parents who have joint custody will con nue to have joint custody
a er their marriage has been dissolved. 175 The parenthood and the related rights and
obliga ons towards the minor will con nue to apply. This provision is based on the principle
that in the event of a divorce, any interference in the right to respect for private and family
life must be limited to every extent possible. 176 In the event that parents exercise joint
custody outside of a matrimonial rela onship, that joint custody will con nue a er the
parents have separated. If during the rela onship only the mother has custody of the child,
she will con nue to have custody a er the rela onship has ended. If the father has
acknowledged paternity, he can request the Cantonal Division of the court to grant him
custody o he child. 177 The legal posi on in rela on to access/contact/visita on following
the breakdown of a rela onship or marriage is provided for in the Dutch Civil Code. The child
and the parent who does not have custody have a right to have contact with each other. 178
The law does not provide that the parents and the child have a 202 right to contact with each
other in the event that the parents have joint custody; they derive the right directly from the
custody rela onship that they already have. In the event that parents who are not married
end their rela onship, the custody will simply con nue in the same form. 179 The parent with
whom the child does not have his principal place of residence can request parental contact
arrangements. 180 In the event that only one of the parents had custody during the
rela onship, the parent who does not have custody can request the court to establish parental
contact arrangements. 181 7.14 Posi on in Thailand In Common law (Australia, UK, USA, etc.),
the term "custody" is synonymous with "parental powers." But under Thai law, there are other
terms, like "guardian" or "controller of property," that could apply. The term "parental
powers" appears in several clauses of the Commercial and Civil Code of Thailand (CCCT). 182
A person exercising parental power has the right to: (i) determine the child's place of
residence;(ii) punish the child in a reasonable manner for disciplinary purposes; (iii) require
the child to do such work as may be reasonable to his ability and condi on in life; and (iv)
demand the return of the child from any person who unlawfully detains him. 183 'Parental
powers' include the management of the property; and the child. 184 In Thailand, children are
bound to maintain their parents; 185 and the parents are bound to maintain their children
and to provide proper educa on during their minority. 186 Majority is reached at 20 years of
age. 187 Parental obliga ons or responsibili es can con nue even a er their children become
adults; provided that they are infirm and unable to earn their living. 188 In a divorce, where
one parent is awarded full and sole custody and/or parental powers, the other, non-custodian
parent is normally given certain visita on rights, by agreement or by the Court. The best
interests of the child are the main criteria for all decisions taken about children. 189 If the
parents cannot 203 agree on the ma ers of educa on, custody or religion, the Thai court will
base its decision on what it judges to be the best interests of the child. In case of divorce by
mutual consent, the spouses shall make an agreement in wri ng for the exercise of parental
power over each of the children. In the absence of such agreement or an agreement thereon
cannot be reached, the ma er shall be decided by the Court. 190 In case of divorce by
judgment of the Court, the Court trying the divorce case shall also order that the parental
power over each of the children belong to any party. If, in such trial, it is deemed proper to
deprive that spouse of the parental power, the Court may give an order depriving that spouse
of the same and appoin ng a third person as a guardian, by taking into considera on the
happiness and best interests of the child." 191 If it appears that the person exercising parental
power of the guardian behaves improperly or there is a change of circumstances a er the
appointment, the Court has the power to give an order appoin ng a new guardian by taking
into considera on the happiness and interests of the child. 192 7.15 Law in Singapore The
courts are empowered, when gran ng a judgment of divorce, to order the division or sale of
matrimonial assets in such propor on as is just and equitable. 193 The court is also
empowered to make orders for maintenance for the wife, incapacitated husband and children
of the marriage. 194 With respect to the division of matrimonial assets, the court may make
any order necessary or expedient to effect the division, which includes making an order for
sale, ves ng any asset owned jointly by the par es in both the par es, ves ng any asset or
any part thereof in either party, ordering for any asset to be held in trust on such terms as
may be specified in the order and ordering a payment of sum of money by one party to the
other party. 195 With respect to maintenance orders, in addi on to the typical orders of
payment of a lump sum or periodical payments, the court may provide for an order for
a achment of earnings; or require security for the maintenance by 204 ves ng property in
trustees upon trust to pay the maintenance out of the income of the property. 196 To
determine the appropriate order to make, the court takes into account all the circumstances
of the case, including certain statutorily required factors. With respect to the division of
matrimonial assets, the court takes into account the factors such as the contribu ons made
by each party in money, property or work towards acquiring, improving or maintaining the
matrimonial property, and to the welfare of the family. 197 In prac ce, all contribu ons are
categorized as either "direct financial contribu ons" or "indirect financial/nonfinancial
contribu ons" towards the acquisi on of the matrimonial assets. With respect to spousal and
child maintenance, the courts take into account the factors such as income, earning capacity,
property and other financial resources which each of the par es has or is likely to have in the
foreseeable future, the par es' standard of living and their ages. 198 Different policy
considera ons underlie spousal and child maintenance. It should be noted that the courts
have recently decided that even nominal maintenance (i.e. $1 maintenance) for a former wife
is not to be awarded automa cally or as a ma er of course. 199 The court can order a parent
to pay maintenance for the benefit of a child of the marriage who is under the age of 21 years.
Both parents are under a duty to maintain or contribute to the maintenance of their biological
or adop ve child.200 The court may order a parent to make a monthly allowance or a
lumpsum for the maintenance of his/her child up un l he/she a ains 21 years of age.Z01 The
court may also do so during matrimonial proceedings. 202 A maintenance order may also be
ordered for the benefit of a child beyond the age of 21 years, if the child: (a) has a physical or
mental disability; (b) is or will be serving full- me na onal service; (c) is or will be studying or
undergoing training for a trade, profession or voca on whether or not under gainful
employment; or (d) has special circumstances jus fying the making of the order. 203 When
ordering child maintenance, the court must have regard to all the circumstances of the case,
including: (a) the financial needs of the child; (b) the income, earning capacity (if any),
property and financial resources of the parents; 205 (c) any disability of the child; (d) the age
of the parents and dura on of the parents' marriage; and (e) the standard of living enjoyed
by the child before the parent ceased providing reasonable maintenance for the child,
including how the par es expected him to be, educated or trained. 204 A maintenance order
may also be ordered for the benefit of a child beyond the age of 21 years in certain
circumstances, typically un l the comple on of university educa on. It has been held that if
a child is genuinely pursuing a course of studies in order to be er prepare himself for the
working world, as long as it is reasonable for the child to pursue that course and the parents
can afford it, the court may order the parents to maintain the child either fully or par ally
while s ll studying. 205 The court has to make orders in respect of "custody", "care and
control" and "access" under the Women's Charter in the event of divorce. The court has the
power to place a child in the custody of either parent or (in excep onal circumstances) a
rela ve. 206 The person given "custody" has deCision-making control and responsibility over
the upbringing, educa on, health and religion of the child.Z07 The Court of Appeal has
emphasized that parenthood is a lifelong responsibility and endorsed the idea of joint parental
responsibility, even where there is acrimony between the parents, 208 by way of joint or no
custody orders. Courts may order sole custody in excep onal circumstances, e.g. where one
parent physically, sexually or emo onally abuses the child. The parent with "care and control"
has the right to take care of the child and to make the day-today decisions concerning the
child's upbringing and welfare. This right naturally belongs to the parent with whom the child
lives.Z09 Orders for shared care and control are rarer in Singapore on account of various
reasons, e.g. due to the logis cal difficul es, that it may be disrup ve and the parents have
markedly different paren ng styles. In deciding which parent 206 should be given care and
control of the children, the following trends emerge from local case law: • A young child
requires a mother's daily care.210 • There is a preference towards preserving the status quo
and con nuity of living condi ons.211 • Siblings should not be separated.212 • The court
usually grants "access" to the parent who does not have care and control of the child to have
regular contact with the child? 13 In such cases, the decision is ul mately taken by the Judge.
However, the Judge may (via an applica on by a party or otherwise) order the produc on of
reports such as a Social Welfare Report, Custody Evalua on Report, Access Evalua on Report,
Special Issues Report, etc. by professionals from the appropriate disciplines within the
Ministry of Social and Family Development and various other government agencies? 14 The
Judge may s ll interview a child a er he/she receives the reports or expert evidence as these
avenues are not mutually exclusive. The court may (via an applica on by a party or otherwise),
if it is in the best interests of the child to do so, appoint a child representa ve for a child for
any ac on involving the child or the custody or welfare of the child.215 7.16 The Law in Kenya
The Marriage Act, 2014 along with the Cons tu on governs the law rela ng to marriage in
Kenya. The Children's Act, 2001 sets out the rights and du es of parents and the children. The
Registra on of Births and Deaths Act make it mandatory for the parents to get a birth
cer ficate for their children. The cons tu on has specific provisions for children. 216 The
Children's Court has the jurisdic on to deal with the children's issues including those in
breaking or broken marriages. At the court, the best interest of the child principle, under the
Children Act, 217 as read alongside the Cons tu on, guides the magistrates whenever they
have to determine the issues of these children. 207 The most problema c issues that the court
has to deal with. include the ques on of the custody, access and parental responsibility during
and a er the separa on or dissolu on of the marriage. Some customs dictate that upon
dissolu on of the marriage, the children belong to the father or the mother. Customary law is
now cons tu onally provided for under the cons tu on.Z18 The Children's Act of 2001 makes
provision for parental responsibility, fostering, adop on, custody, maintenance, guardianship,
care and protec on of children. It also makes provision for the administra on of children's
ins tu ons, gives effect to the principles o he Conven on on the Rights of the Child and the
African Charter on the Rights and Welfare of the Child. A child shall have a right to live with
and to be cared for by his or her parents.Z19 Where the court or the Director determines in
accordance with the law that it is in the best interests of the child to separate him from his or
her parent, the best alterna ve care available shall be provided for the child.Z20 Where a child
is separated from his or her family without the leave of the court, the Government shall
provide assistance for reunifica on of the child with his or her family. 221 Every child shall be
en tled to educa on; the provision of which shall be the responsibility of the Government
and the parent~. 222 Every child shall have a right to health and medical care the provision of
which shall be the responsibility of the parents and the Government. 223 7.17 Conclusion
Tradi onally, judiciary a ributed a gender based defini on for 'child's best interests.' In
England and the United States, fathers were given custody as children were seen as the
property of the father. By the end of the 19th century, this gender bias flipped. At this me,
courts developed the "tender years" doctrine; and presumed that the mother was the more
appropriate custodial parent for young children. This judicial switch from father to mother
reflects the influence of contemporary thought on the importance of the mother-child bond
in the child's emo onal development. Subsequently, many States and courts began 208 to
move away from this doctrine and toward a more gender-neutral decision process for custody,
maintenance, visita on and other related aspects. A notable feature of the Polish law is that,
despite complete and irretrievable breakdown of marriage, a divorce is not permi ed if the
divorce would be detrimental to the welfare of the common minor children of the spouses or
if there are other reasons indica ng that to grant a divorce would be against the principles of
community life. The obliga on for parental support of minor children is found in several
provisions of the FGC, which describes the general obliga on of both parents to support their
child un l the child can provide for himself, unless the income from a child's property is
sufficient to cover his maintenance and upbringing. The establishment of the amount of child
support is le to the discre on of the Family Court. A parent's capacity to pay child support is
usually determined by the actual income and all other available sources. If the court concludes
that the parent's actual income does not reflect true earning capacity, the court may impute
addi onal income to that parent. On divorce, the court must determine custody over the
minor common children of the spouses. The courts favour mothers of young children. Siblings
should not be separated on divorce, unless it would be in the children's best interest.
Regardless of parental authority, the parents and child have the right and duty to maintain
contact with each other. The parent not granted custody in divorce proceedings is en tled to
visita on rights. In Bri sh Virgin Islands, the Child Maintenance and Access Bill, 2016 that is
expected to ensure that both parents have access to their children through appropriate
arrangements, is pending before the legislature. The bill seeks to introduce other interven on
methods for addressing a parent or guardian's failure to comply with the s pula ons for
maintenance. The alterna ves of media on or measures such as suspension of a license,
garnishing of wages or an a achment order are also proposed as a first line of interven on
prior to a term of imprisonment. 209 In Australia, the Family Law Amendment (Shared
Parental Responsibility) Act 2006 which came into force on July 1, 2006, drama cally changed
child custody law: It places an increased focus on the rights of children to have a meaningful
rela onship with both their parents and to be protected from harm. The law also encourages
parents to equally share responsibility for their children, a er separa on. Most cri cally, the
law sets forth a presump on that it is in the best interests of the child for each of the child's
parents to have equal shared parental responsibility. The law of the People's Republic of China
provides that the parents shall be under the obliga on of upbringing and educa ng their
children. Where the parents fail to perform their obliga ons, the underage children and the
children without the ability to live an independent life shall be en tled to ask their parents to
pay aliments. A notable feature of the law is that, it casts an obliga on upon the grandparents
also; capable grandparents and maternal grandparents shall be under the obliga on of
upbringing the grandchildren and maternal grandchildren whose parents have deceased or
are incapable of upbringing their underage children. Similarly, capable elder brothers and
sisters shall be under the obliga on of suppor ng their younger brothers and sisters whose
parents have deceased or whose parents are incapable of suppor ng them. The younger
brothers and sisters who have been brought up by the elder brothers and sisters shall be under
the obliga on of suppor ng their elder brothers and sisters who are without labour
capabili es and without sources of living aliments. In China, divorce shall be allowed if both
husband and wife are willing to divorce. Both par es shall apply to the marriage registra on
authority for divorce. Subject to certain excep ons, the husband may not apply for divorce
when his wife is pregnant or within one year a er giving birth to a child or within six months
a er termina ng gesta on. This restric on shall not apply to the case where the wife applies
for divorce or the People's court deems it necessary to accept the applica on of the husband
for divorce. A er divorce, the parent that 210 does not directly bring up the children has the
right to visit the children, and the other party has the obliga on to give assistance. Another
striking feature of the Chinese law is that, if: (a) bigamy; (b) cohabita on between a person
who has a spouse but co-habitats with a third person; (c) familial violence; and (d) maltrea ng
or deser ng any family member etc. were the reasons for divorce, the innocent party shall be
en tled to claim damages. However, Japan has no substan ve laws even for the protec on of
children's rights in cases of parental separa on. There are no statutes or guiding principles to
determine the best interests of minor children when their parents' divorce or cease
cohabita ng. A significant amount of family law is judicially created. Decisions about a child's
welfare are administra ve disposi ons based on the internally generated rules, procedures,
and values of a judicial bureaucracy. Custody and visita on rights can be bypassed at the
discre on.o udges and other family court personnel to further the judiciary's bureaucra c
impera ves, unrelated to the best interests of children. In prac ce, Japanese courts rarely
issue child support orders resul ng from contested situa ons. Instead, the par es themselves
usually nego ate the figures, o eq. with the assistance of court-appointed mediators.
Moreover, court orders direc ng a divorced parent to hand over a child to his or her former
spouse are o en ignored; largely because of the absence of any specific legal procedures
governing enforcement of such a custody transfer. In Israel, matrimonial ma ers are divided
into several jurisdic onal categories. The dissolu on of marriage is within the exclusive
domain of religious courts. The applica ons regarding ma ers' of marriage between Jewish
spouses are in the exclusive jurisdic on of the rabbinical courts. Similar legisla ons exist
regarding exclusive jurisdic on of Muslim and Catholic coUrts. Ma ers that are ancillary to
divorce are within the concurrent jurisdic on of both civil and religious courts. Therefore,
ma ers of division of assets, child custody and child maintenance can be adjudicated by either
of the separate legal systems. The Supreme Court in Israel, si ng in its capacity as the High
Court of Jus ce, can 211 void decisions made by supreme religious courts. Furthermore,
where religious courts fail to comply with legisla on that specifically binds them, the Supreme
Court can interfere. Israeli law does not have child support guidelines and therefore amounts
vary from case to case even where incomes and needs are the same. The standard under
Israeli law is that the child is supposed to be able to con nue the same standard of living to
which he or she was accustomed prior to the divorce. Divorce agreements between the
parents which establish child support levels even when ra fied by the court do not bind the
children. A child can file an ac on against the parent to increase the level of child support
beyond the amount set in the divorce agreement without concern of estoppels. Courts have
recently begun to adopt joint physical custody as a possible arrangement a er the breakdown
of the marriage. In the United States of America, up to 1970s, in most cases mothers had
preferen al right· over child custody. Since the 1970s, as custody laws have been made
gender-neutral, children are placed in the primary custody of the father. Following the
ra fica on of the CRC, in most countries except the United States, the terms such as "custody"
and "access" (known as "visita on" in the United States) have been superseded by the
concepts of "residence" and "contact". Instead of a parent having "custody" of or "access" to
a child, a child is now said to "reside" or have "contact" with a parent. Courts and legal
professionals within the U.S. may use terms such as "paren ng me" instead of custody and
visita on. In States like Illinois, child support is based on the net income of the child support
payer. However, some Appellate Courts opined that the paren ng me may also be
considered. United States has signed but not ra fied the CRC, which states that "children have
the right to a nurturing environment in accordance with their developmental needs, the right
to legal representa on, and the right to economic and emo onal support from their parents
and the state." Several countries, including England and Scotland, have issued explicit
legisla on regarding the rights of children, which guarantee that children have representa on
in all 212 administra ve and legal proceedings that pertain to them. In some states in U.S a
small movement has begun in the new millennium which considers the wishes and feelings of
children themselves, not just the parents, in configuring what was in their best interests. There
are two forms of joint custody in the United States of America: joint legal custody and joint
physical custody. Joint legal custody as defined by the State of Georgia, means both parents
have equal rights and responsibili es for major decisions concerning the child, including the
child's educa on, health care. Joint physical custody means that physical custody is shared by
the parents in such a way as to assure the child of substan ally equal me and contact with
both parents. Australian family courts rarely award joint physical custody in postdivorce
arrangements. The courts have developed a detailed list of precondi ons for shared physical
custody. They include: geographical proximity, compa ble paren ng, and ability of the
pare1;1ts to supervise the child, child's adaptability, mutual trust, co-opera on and good
communica on. The parents who wish to secure a joint physical custody arrangement must
prove to have a degree of maturity, value, a tude, behaviour and openness of mind to
communicate with the other parent. Family courts in United Kingdom take into account
several factors that · include: the ascertainable wishes and feelings of the child concerned. His
physical, emo onal and educa onal needs, the likely effect on him of any change in his
circumstances, his age, sex, background and any characteris cs of his which the court
considers relevant. They also consider how capable each of his parents is, and any other
person in rela on to whom the court considers the ques on to be relevant, is of mee ng his
needs. For parents who cannot agree maintenance arrangements and who are both resident
in England and Wales, there is a complex set of laws and regula ons commencing with the
Child Support Act 1991. These have resulted in three child 213 support regimes, the most
recent of which is the 2008 regime, referred to as 'the gross income scheme ', which now
applies to all new child maintenance applica ons. Since November 2013, all new cases have
been administered by the Child Maintenance Service (CMS) which replaced the Child Support
Agency (CSA). The CMS calculates the payments using a fixed statutory formula which works
on the basis of the paying parent's yearly gross income using informa on supplied by HM
Revenue & Customs or informa on about benefits received by unemployed parents. Since the
commencement of the Children and Families Act 2014, arrangements rela ng to contact with
a child now fall under the court's power to make child arrangement orders. Parents can
determine arrangements between themselves, with the court able to make an order if they
are unable to reach an agreement. In all cases which come before the court, safeguarding
checks are undertaken by CAFCASS (Child & Family Court Advisory & Support Service). If a
parent is in breach of a child arrangement order, the other parent may apply for an
enforcement order for breach of which there are penal es including a requirement to
undertake unpaid work. In Canada, both the federal and provincial governments regulate
family law. The Divorce Act is the federal legisla on which governs divorce and corollary relief
including custody, child support and spousal support. for all of Canada's provinces and
territories. In Ontario, the Family Law Act (FLA) sets out the method by which property is to
be divided following the breakdown of marriage, child and spousal support obliga ons. Child
custody is prescribed by the Children's Law Reform Act (CLRA). Since 1997, child support in
Ontario has been calculated in accordance with the Federal Child Support Guidelines. The
parent with custody, or both parents where custody is jointly held, must exercise their rights
and responsibili es in respect of the child in accordance with the child's best interests. Courts
must give effect to the principle of maximum contact which provides that a child should have
as much contact with each spouse as possible, so long as such contact is in the child's best
interest. 214 In France, the Civil Code (CC) provides that each parent (whether married .or
not) has a duty to par cipate in the needs of common children propor onately to their
resources. France has a family benefit system based on the number of children from the age
of two upwards, and not related to the income of the parents. Child support does not include
any right for the mother, for example, to have a "roof over her head". In broad terms, the
judge determines the "available" income of each parent a er deduc ng compulsory
expenses. Child support is taxable by the Internal Revenue Service for the creditor and
deduc ble for the debtor. In South Africa, the new family law landscape has been introduced
by the Children's Act, 2008. The Act not only introduced a change in terminology; but has also
introduced a shi in the way one thinks and conceptualizes paradigms in family law. In the
context of issues rela ng to reloca on, the terms 'custody and access' have been replaced
with the terms 'care and contact' respec vely. Family courts in South Africa do not frequently
award joint physical custody of children on the basis that such an arrangement would be
disrup ve for the child, par cularly in cases in which the parents live far apart. Instead, courts
grant joint custody (but not joint physical custody of the parent). South Africa offers a unique
look at autonomy of the children in ques on for custody arrangements. It takes into account
the opinions of the children in dispute. In Netherlands, parents who have joint custody will
con nue to have joint custody a er their marriage has been dissolved. The parenthood and
the related rights and obliga ons towards the minor will con nue to apply. This provision is
based on the principle that in the event of a divorce, any interference in the right to respect
for private and family life must be limited to every extent possible. All divorces must be
accompanied by a paren ng plan based on the assump on of a shared parentage system. The
plan must include: the division in the care and paren ng tasks, how to inform and consult
each parent on paren ng the children and the costs of caring and paren ng the children. If no
plan can be agreed upon or the plan is not amenable, the judge has the discre on to send the
divorcing 215 parents to a mediator in order to acquire such a plan before con nuing the
divorce proceedings. In Thailand, children are bound to maintain their parents; and the
parents are bound to maintain their children and to provide proper educa on during their
minority. Majority is reached at 20 years of age. There are generally two procedures for
securing child custody arrangements. The first is by mutual consent and the second, by the
court. Mutual consent is an op on for previously married parents who have divorced by
mutual consent, previously married parents who had an uncontested divorce, or unmarried
couples in which the child is registered as the legi mate child of the father and the unmarried
parents agree on the custody arrangement. The court can also award custody to the parents
or to a third person as a guardian in lieu of the parents if it is in the "happiness and interest"
of the children. In Singapore, the family law requires the court to consider the best interests
of the child. The court may not make any judgment of divorce or nullity of marriage or grant
a judgment of judicial separa on unless the court is sa sfied that arrangements have been
made for the welfare of the child and that those arrangements are sa sfactory or are the best
that can be devised in the circumstances or that it is imprac cable for the party or par es
appearing before the court to make any such arrangements. The court has to make orders in
respect of "custody", "care and control" and "access" under the Women's Charter in the event
of divorce. The court has the power to place a child in the custody of either parent or (in
excep onal circumstances) a rela ve. Kenyan law draws the dis nc on between actual
custody and legal custody. Actual custody is the actual possession of a child, whether or not
that possession is shared with one or more persons. Legal custody is so much of the parental
rights and du es in rela on to possession of a child as are conferred upon a person by a
custody order. The Kenyan law considers the conduct and wishes of the parent or guardian of
the child, the ascertainable wishes of the child, the customs of the community to which the
child belongs and the religious persuasion 216 of the child. It is important to note that Kenyan
law does not place the "best interest of the child" necessarily as paramount. Research
suggests that children whose parents have divorced have higher levels of externalizing
behaviors and internalizing problems, lower academic achievement, and more problems in
social rela onships than children whose parents have not divorced. The age of the child at the
me of the divorce and the me of the study, length ·of me since the divorce, demographic
characteris cs, child's adjustment prior to the divorce, and s gma za on as moderators of
the links between divorce and children's adjustment etc. are the determinant factors for
behavioral outcomes. Children who are younger at the me of their parents' divorce may be
more at risk than are children who are older at the me of the divorce, but for academic
outcomes and social rela onships, adolescents whose parent's divorce, may be at greater risk
than are younger children. In cultural and historical contexts in which divorce is s gma zed,
children may show worse adjustment following divorce than they do in contexts where
divorce is not s gma zed. State policies related to grounds for divorce, child custody, and child
support might affect children's adjustment to their parents' divorce. Policies that reduce inter-
parental conflict and provide economic security to children have the poten al to benefit
children's adjustment Evalua ng whether par cular policies are related to children's
adjustment following their parents' divorce has the poten al to inform future policymaking.
It is important to end this review by emphasizing that not all children experience similar
trajectories before or a er experiencing their parents' divorce. Thus, trajectories of
adjustment that may be typical of many children may not be exhibited by an individual child.
Furthermore, what ini ally appear to be effects of divorce are likely to be a complex
combina on of parent, child, and contextual factors that precede and follow the divorce in
conjunc on with the divorce itself. 217 2 4 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
25 25 25 26 27 28 29 30 31 See generally, MARY ANN MASON, FROM FATHER'S PROPERTY TO
CHILDREN'S RIGHTS: A HISTORY OF CHILD CUSTODY (Columbia University Press, 1994). !d.
Mary Ann Mason, "The Roller Coaster of Child Custody Law over the Last Half Century" 24
JOURNAL OF THE AMERICAN ACADEMY OF MATRIMONIAL LAWYERS, 451- 466 (2012) !d. Act
of 2 April1997, JOURNAL OF STATUTES 1997, no. 78, item 483, with subsequent amendments
Ar cle 18, CRP Ar cles 71 and 72, CRP Ar cles 47 and 48, CRP Sec on 3, Ar cle 48 and 53,
CRP Act of 23 April 1964, Journal of Statutes 1964, no. 16, item 93 with subsequent
amendments This tle is further divided into five parts, covering almost every aspect of issues
surrounding the crea on of marital union, rela ons between spouses, marital property,
termina on of marriage and judicial separa on. For example, procedural ma ers connected
with matrimonial law are contained in the Polish Code of Civil Procedure (PCCP) (Act of 17
November 1964, Journal of Statutes 1964, no. 43, item 269 with subsequent amendments),
mainly in Ar cles 425 to 458 and 561 to 667(5). Civil status issues are covered by The Law on
Civil Status Registry of 1986 (Journal of Statutes 2004, no.161, item 1688, with subsequent
amendments). Ar cle 17, FGC They are: (i) spouse was under the age of 18: a marriage can be
annulled if the spouse was under the age of 18 (Ar cle 10, FCG). However, if there are
important reasons, the Court can permit a woman aged 16 to marry, where circumstances
show that the marriage would be in accordance with the best interest of established family;
(ii) Full legal incapacita on: no one who is fully legally incapacitated can marry (Ar cle 11,
FGC); (iii) mental illness or retarda on: marriage is voidable if either party suffered from
mental illness or was mentally retarded (Ar cle 12, FGC)(iv} bigamy: someone who is already
married cannot marry (Ar cle 13, FGC); and (v)prohibited rela onship: the intended spouses
must not be closely related. However, if there are important reasons, the guardian court can
authorize a marriage between in-laws (Ar cle 14, FGC). Finally, it is not possible for an
adop ve parent and adop ve child to marry unless the adop on has been terminated (Ar cle
16, FGC). Ar cle 56, FGC Ar cle 56 § 2, FGC Ar cle 56 § 3, FGC Ar cle 58§ 3, FGC Ar cle 46,
FGC and Ar cles 212 and 1035, PCC Ar cle 45, FGC Ar cle 43, FGC Judgment of Supreme Court
of27 June 2003, IV CKN 278/2003. Ar cle 27, FGC Decision of Supreme Court of 13 July 2011,
III CZP 39/2011. Ar cle 60 § 1, PGC Ar cle 60 § 3, FGC Judgment of Supreme Court of 15
February 2000, II CKN 391/2000. Ar cle 60 § 2, FGC Judgment ofPosnan Appellate Court of9
September 2009, I A Ca 565/09, Legalis Judgment of Supreme Court of 15 February 2000, II
CKN 391/2000. Ar cle 60 § 2, FGC Judgment ofPosnan Appellate Court of9 September 2009,
I A Ca 565/09, Legalis Ar cle 135 § 1, FGC Ar cle 135 § 3, FGC Ar cles 135 § 1 and 136, FGC
218 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 Ar cle 58§ 1, FGC
Ar cle 58 § 1a, FGC Decision of Supreme Court of December 15, 1998 r., I CKN 1122/98,
LexPolonica nr 334439 Decision of Supreme Court of30 November 1954,2 CR 1229/54,
LexPolonica nr 376778 Ar cle 113, FGC Ar cle 1131 FGC Ar cle 113 § 2, FGC Ar cle 58, FGC
Ar cle 1133 Family and Guardianship Code Ar cle 113(5) No.1955110-Judgment dated 101 h
January 2017 No. 8923112- Judgment dated 22nd November 2016 F. v. Switzerland, no.
11329/85, Johnston v. Ireland, no. 9697/82 Pre y v. UK [2002] ECHR 423 (29 April, 2002).
Ar cle 8 §54 It must be established by proof that: (a) the respondent commi ed adultery and
the pe oner finds it intolerable to live with the respondent; or (b) the respondent has
behaved in such a way that the pe oner cannot reasonably be expected to live with the
respondent; or (c) the Respondent has deserted the pe oner for a con nuous period of at
least 2 years immediately before the filing for the divorce; or (d) Both par es have lived apart
for a con nuous period of at least 2 years immediately before the filing of the divorce and the
respondent consents to the divorce being granted; or (e) The par es have lived apart for a
con nuous period of at least 5 years immediately before the filing of the divorce. Sec on 27,
the Matrimonial Proceedings and Property Act 1995 reads: "(1) Either party to a marriage may
apply to the Court for an order under this sec on on the ground that the other party to the
marriage (in this sec on referred to as "The Respondent")-( a) Being the husband, has willfully
neglected to provide reasonable maintenance for the applicant; or (b) Being the wife, has
willfully neglected to provide, or to make a proper contribu on towards reasonable
maintenance for the applicant in a case where, by reason of the impairment of the applicants
earning capacity through age, illness or disability of mind or body and having regard to any
resources of the applicant and the Respondent respec vely which are, or should properly be
made, available for the purpose, it is reasonable in all the circumstances to expect the
Respondent so to provide or contribute." Sec on 26 reads: The Act provides that the Court:
"shall have regard to all the circumstances of the case including the following ma ers:- (a) the
income, earning capacity, property and other financial reserved which each of the par es to
the marriage has or is likely to have in the foreseeable future; (b) the financial needs,
obliga ons and responsibili es which each of the par es to the marriage has or is likely to
have in the foreseeable future, (c) the standard of living enjoyed by the family before the
breakdown of the marriage, (d) the age of each party to the marriage and the dura on of the
marriage, (e) any physical or mental disability of either of the par es to the marriage, (f)
contribu ons made by each of the par es to the welfare of the family, including any
contribu on made by looking a er the home, (g) any order made under sec on 49, (h) in the
case of proceedings for divorce or nullity of marriage, the value to either of the par es to the
marriage, of any benefit (for example, a pension) which, by reason of the dissolu on or
annulment of the marriage, that party will lose the chance of acquiring and to so exercise
those powers as to place the par es, so far as it is prac cable and, having regard to their
conduct, just to do so, in the financial posi on in which they would have been if the marriage
had not broken down and each had properly discharged his or her financial obliga on and
responsibili es toward the other." Judgment, BVIHMT 2006/0070 (ECSC HC, Nov. 13, 2009)
Miller v Miller [2006] 2 WLR 1288 The legisla on received their first reading in December,
2016. www.bvi.gov.vg [2006) Fam. CA 1346 219 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69
70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 S. 61DA(1) and S.61DA(2)
S.61DA(l) and S. 61DA(3) S. 61DA(4) S.65DAA(l) and (2) Ss. 65DAA(3) and (4) Passed at the 21st
mee ng of the Standing Commi ee of the Ninth Na onal People's Congress on April28, 2001
Ar cle 2 Ar cle 4 Ar cle 13 Ar cle 16 Ar cle 17 Ar cle 20 Ar cle 21 Ar cle 23 Ar cle 24 Ar cle
25 Ar cle 28 Ar cle 29 Ar cle 31 Ar cle 34 Ar cle 36 Ar cle 37 Ar cle 38 Ar cle 39 Ar cle40
Ar cle 42 Ar cle 46 Ar cle 48 CAL. F AM. CODE § 3020 In addi on to numerous procedural
requirements, the California Family Code includes the following statement of legisla ve
purpose: The legislature finds and declares that it is the public policy of this state to assure
that children have frequent and con nuing contact with both parents a er the parents have
separated or dissolved their marriage, or ended their rela onship, and to encourage parents
to share the rights and responsibili es of child rearing in order to effect this policy ... TAKASHI
UCHIDA, THE CIVIL CODE, VOLUME IV: FAMILY AND INHERITANCE135-136. An amendment to
the Civil Code that would have codified exis ng family court prac ce by adding to Ar cle 766
specific references to "visita on and interac on" as ma ers courts could decide in connec on
with custody determina ons was proposed, but never adopted. !d. Colin P.A. Jones, "In The
Best Interests of the Court: What American Lawyers Need to Know About Child Custody and
Visita on in Japan" 8 ASIAN-PACIFIC LAW & POLICY JOURNAL 167-269 (Spring 2007) See, e.g.,
Doug Struck & Sachiko Sakamaki, Divorced from Their Children: In Japan, Foreign Fathers Have
Minimal Rights to Custody or Visita on, WASH. POST, July 18, 2003, at A09 (quo ng a Japanese
mother as saying "In Japan, children are treated like things. Japan watches silently as parents
and children are tom apart.") h p://www. asahi-net. or jpl-zi3h-kwrzll awychspcal. html For a
discussion, See Takao Tanase, "Divorce And The Best Interest Of The Child: Disputes Over
Visita on And The Japanese Family Courts", 20 PACIFIC RIM LAW & POLICY JOURNAL 563-588
(2011). Fujiwara Chisa, "Single Mothers and Welfare Restntcturing in Japan: Gender and Class
Dimensions of Income and Employment" 6 THE ASIA-PACIFIC JOURNAL (2008); Ezawa, A. and
Fujiwara, C. "Lone Mothers and Welfare-to-Work Policies in Japan and the United States", 32
JOURNAL OF SOCIOLOGY AND SOCIAL WELFARE 41-63 (2005). 220 90 91 92 93 94 95 96 97 98
99 100 101 102 103 104 105 106 107 108 109 /10 111 112 113 h p://www.
tokyoweekender.com Daisuke Kikuchi "Parental abduc on vic ms hold a rally to push for joint
custody rights" THE JAPANTIMES(MAY 5, 2017) Ar cle 766 reads: (1) If parent's divorce by
agreement, the ma er of who will have custody over a child, visita on and other means of
contact between the child and his or her mother or father, payment of expenses for child-
rearing, and any other necessary ma ers regarding child custody shall be determined by that
agreement. In such situa ons, the child's interests must be given the highest priority. (2) If an
agreement referred to in the preceding paragraph cannot be reached,. or discussions are not
possible, a family court shall decide the ma ers referred to therein.(3)If the family court finds
it necessary, it may change determina ons made pursuant to the provisions of the preceding
two paragraphs and order any other proper disposi on regarding child custody. (4) The rights
and d~ es of parents beyond the scope of custody may not be altered by the provisions of the
preceding three paragraphs. !d. In 2015, there were 97 cases in which divorced parents with
parental preroga ves or the care and custody right over their children asked that their former
spouses tum the children over to them, but the children were handed over in only 27 of the
cases, according to the Supreme Court. Editorial on ''Handing over a Child' JAPAN
TIMES(January27, 20 17)h p://www Japan mes.coJp Sec on 2 (3) -Compulsory Execu on
against Movables (Ar cle 122 to Ar cle 142), Civil Execu on Act Japan signed and ra fied it in
2014. Menashe Shava, "The Property Rights of Spouses Cohabi ng Without Marriage In Israel-
A Compara ve Commentary" 13 GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE
LAW 465-487(1983). Anonymous v. The Rabbinical Court of Appeals, HCJ 7395/07 (21.1.
2008); the Na onal Parents Organiza on (Registered Society) v. The Minist1y of Educa on,
Culture and Sports et. AI HCJ 6914/06 (14.8. 2007). Anonymous v. Anonymous, 6802/04 (19
.12.2004). Vilogeny v. High Rabbinical Co_urt, Bagatz, 323/81, P .D. 36(2) 733. Anonymous v.
Anonymous, 9182/06 (10.4.2007). Bavli v. High Rabbinical Court, et. a!., Bagatz 1000/92, P.D.
(2) 221. Paragraph 76 Paragraph 3, Maintenance Law Paragraph 4(2) , Maintenance Law · CA
(Civil Appeal) 210/82 Gel bar v. Gel bar, 35 P .D. ( 2) 14, Supreme Court of Israel. C.A. 411176
Sher v. Sher, 32 P.D. (1) 449. C.A 1880/97 Katan v.Katan, 39 P.D. (1) 215. C. A 353/62
Muhammad A/fakir v. A orney General of Israel, 18 P.D.( 2) 200, p.221 However, on April 11,
2017, Amendment No. 18 to The Law of Legal Capacity and Guardianship, 5722-1962 came
into effect. This is a wide ranging amendment regarding the ins tu on of court appointed
guardianship. The main goal of the amendment is to decrease the use of guardianship to the
extent possible, so that guardianship will be imposed as a last resort, a er less restric ve
measures are considered. A Commi ee chaired by the Deputy President of the Tel Aviv District
Court, Jus ce Saviona Rot Levi, was appointed in 1997 by the Minister of Jus ce. The Minister
appointed the Commi ee to thoroughly examine Israeli legisla on concerning the rights of
children and children's legal and welfare status under Israeli law, in light of the principles set
down in the Conven on on the Rights of the Child, so that Israel could meet its commitments
under the Conven on. Two Supreme Court cases are significant in this context: Chinboy v.
Chinboy (Family Appeal 2433/04) and Ohana v. Ohana (Family Appeal 5750/03). Both hold
that when determining child support the courts should require the mother to par cipate in
essen al support payments and not just in the non-essen al. Courts are obliged to examine
the mother's financial capabili es as well as the father's when awarding child support; and
the 221 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133
134 135 136 137 138 obliga on should be imposed on both. The result is that there is a trend
for courts to minimize what is defined as essen als, to more evenly divide the obliga on for
child support. "Determining the Best Interests of the Child'' : Child Welfare Informa on
Gateway; Children's Bureau, h ps://www.childwelfare.gov/pubPDFs/best_interest.pdf
Retrieved 16 May2017. Larson, Aaron, "Grandparents' Rights to Visita on" : ExpertLaw.com.
Retrieved 16 May 2017 SIDONO, PATRICIA H. "EPIDEMIOLOGY OF DIVORCE" 4 (1): 15-28,
(1994) Saunders, Daniel G. ,"The Need to Carefully Screen for Family Violence Wizen Parental
Aliena on is Claimed", 46 (6) MICHIGAN FAMILY LAW JOURNAL 7-11(Jun 2016) "Custody &
Paren ng Time (Visita on)" ( California Courts- Judicial Council of California) DEMO, DAVID H.,
BEYOND THE AVERAGE DNORCE 67-68 (SAGE, 2010). Larson, Aaron, "Custody, Paren ng Time
and Child Development": ExpertLaw.com. 750 ILCS 5/505 750 ILCS 5/505 (a)(1)(D) 750 ILCS
5/505 (a) (3) Mary Ann Mason, "The Roller Coaster of Child Custody Law over the Last Half
Century", 24 JOURNAL OF THE AMERICAN ACADEMY OF MATRIMONIAL LAWYERS 451-466
(2012). United Na ons, Conven on on the Rights of the Child, Art. 6(2), Nov. 20, 1989, 1577
U.N.T.S. 3 /d. at Art. 12 (1)-(2) !d. at Art. 3 (2) In reMarriage ofBarnthouse, 765 P.2d 610,613
(Colo. App. 1988) Mary E. Boudreau & Judge Regnal W. Garff, "The Family Court Issue: A Vital
Ques on Quietly Visits Utah's Judicial Council" 12 UTBJ 18, 19 (1999) h ps://www.hg.org
Del.Supr. 559 A.2d 1197, 1202-09 (1989) Other important statutes are: The Married Women's
Property Act 1882 (declara on of exis ng property rights),The Domicile and Matrimonial
Proceedings Act 1973 (DMPA 1973) (jurisdic on disputes within the jurisdic ons of England,
Scotland),Northem Ireland, Jersey, Guernsey and the Isle of Man, The Matrimonial and Family
Proceedings Act 1984 (MFPA 1984), Part III (financial relief in England and Wales a er an
overseas divorce), The Family Law Act 1986 (FLA 1986),The Child Support Act 1991 (CSA
1991),The Family Law Act 1996 (Part IV, family homes and domes c violence),The Human
Rights Act 1998 (incorpora ng the European Conven on on Human Rights into English
law),The Civil Partnership Act 2004 (CPA 2004) (allows same sex couples to form registered
civil partnerships),The Children and Families Act 2014 (CFA 2014),Marriage (Same Sex
Couples) Act 2013 (M(SSC)A 2013),The Adop on and Children Act 2002 (ACA 2002),etc.
Sec ons 22 to 24A, MCA 1973 [2000] 2 FLR 981 [2006] UKHL 24 [2007] EWCA Civ 1791 In
Cooper-Hohn v. Hohn [2014] EWHC 4122 (Fam) the court held that a significant departure
from equality was jus fied because of the husband's special contribu on in building up vast
wealth ofUS$6 billion, much of which had been donated to two charitable founda ons.
Between the date of separa on and the final hearing, there was a significant increase in the
value of the assets due to the husband's "financial genius" and the wife was therefore
awarded US$530 million which was 36% of resources totaling US$1.5 billion. Those who earn
GB£100 or less gross per week are charged a flat rate of GB£5 per week. Those who earn
between GB£100.01 to GB£199.99 gross per week will pay a reduced rate. If the non-resident
parent's gross weekly income exceeds GB£3,000, the parent with care can apply to the court
for increased maintenance. 222 139 140 141 142 143 144 145 146 147 148 149 150 151 152
153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174
175 176 177 178 179 180 181 182 183 184 185 186 187 188 See, Schedule 1 of the CA 1989
Sec on 8 of CA 1989 Sec on 3 of theCA 1989 Sec on 1(3) It inserted into sec on 1 of the CA
1989, subsec ons (2A), (2B) and (3) Sec on 8(1) CA 1989 Sec ons 91 and 92, Cons tu on Act,
1867 R.S.C. 1985, App II., No.5 Divorce Act, R.S.C. 1985, c. 3; (2nd Supp.) Family Law Act, R.S.O.
1990, c. F.3 R.S.O. 1990, c. C.12 Sec on 8, Divorce Act Sec on 16, Divorce Act Sec on 20,
Children's Law Reform Act Sec on 16, Divorce Act Sec on 20, Children's Law Reform Act
Ar cles 143 to 227 Ar cles 229 to 308 (Ar cle 309 has been repealed since Regula on (EU)
1259/2010 of20 December 2010 implemen ng enhanced co-opera on in the area of the law
applicable to divorce and legal separa on (Rome III Regula on) entered into force) Ar cles
372 to 381 Ar cle 373-2, CC Ar cle 372 Ar cles 373-2 and 373-11, CC Ar cles 373-2 and 373-
9, CC Ar cles 373-2 and 373-7, CC Sec on 1 of the Children's Act Sec on 8 Sec on 7 Ss. 19
and 20 Sec on 18 Sec on 18(4) Sec on 6(5) Sec on 31 2008 JOL 219229 (C), para 35 2010 3
SA 352 (ECP) para 6 Book 1: Persons and Family Law, Title 9: Dissolu on of marriage, Ar cles
1:149 to 1:166, Title 10: decree of judicial separa on and the dissolu on of the marriage a er
judicial separa on, Ar cles 1: 169 to 1:183 Book 3, Title 6, Ar cles 814 to 827 Book 1, Title 14:
Custody over minor children, Ar cles 1:245 to 1:377, and Title 15: Right to contact and
informa on, Ar cles 1:377a to 1:377h Ar cle 1:251(2), Dutch Civil Code Ar cle 8, European
Conven on for the Protec on of Human Rights and Fundamental Freedoms Ar cle 1:253 c
(1), Dutch Civil Code Ar cle 1 :377a(1) Ar cle 1:252 Ar cle 1 :377h Ar cle 1 :377a Clauses
1549, 1551, etc. Clause 1567 Clause 1571 CCCT, Clause 1563 CCCT Clause 1564 CCCT Sec on
19 CCCT Clause 1564 CCCT 223 189 190 191 192 193 194 195 196 197 198 199 200 201 202
203 204 205 206 207 208 209 210 2ll 212 213 214 215 216 217 218 219 220 221 222 223
Sec on 1520 CCCT Sec on 1520 CCCT Sec on 1582 Clause 152, Civil and Commercial Code
Sec on 112(1), Women's Charter Ss 113, 127, Women's Charter Ss. 112(3), 112(5), Women's
Charter Ss. 81, 115, Women's Charter S. 112(2),Women's Charter S.114(1) ATE v. ATD [2016]
SGCA 2. Sec on 68, Women's Charter; Sec on 7(1) of the Adop on of Children Act Sec on
69(2), Women's Charter Sec on 127, Women's Charter Sec on 69(5), Women's Charter
Sec on 69(4), Women's Charter Wong Ser Wan v. Ng Cheong Ling [2006] 1 SLR(R) 416. Sec on
125, Women's Charter Ss. 126(1), (2), Women's Charter CX v. CY [2005] 3 SLR 690. AQL v.
AQM[2012] 1 SLR 840. Soon Peck Wah v. Woon Che Chye [1997] 3 SLR(R) 430. Wong Phi/a
Mae v. Shaw Harold [1991] 1 SLR(R) 680. Kim Chun A he v. Ng Siew Kee [2002] SGDC 276.
Supra note 209 Sec on 28, Family Jus ce Act; rr 35, 36, Family Jus ce Rules; AZB v. AZC [2016]
SGHCF 1. Rule 30, Family Jus ce Rules Ar cle 53 Sec on 4 Ar cle 2 Sec on 6 (1) Sec on 6 (2)
Sec on 6 (3) Sec on 7 (1) Sec on 9 224