Unveiling the Gender Biases in Custodial Allocation: A Call for Change

October 17, 2023

The character of Sandy, the male nanny in the hit TV show Friends, is a prime example. Despite being portrayed as kind, loving, and nurturing, the character is still subject to ridicule and suspicion from the show's other characters. This reinforces the idea that men are not capable of providing adequate care for children and that it is not a suitable career choice for them.

In the Republic of India, child custody disputes are known to be complex and emotionally charged. This is due to the presence of gender biases in the legal system, which further complicates the matter. In accordance with customary practice, custody is typically granted to the mother, unless the father is able to demonstrate that she is unsuitable for such responsibility. Fathers seeking custody must undergo a rigorous legal procedure to obtain it. This is based on the presumption that mothers are the natural caregivers and better equipped to take care of the child’s needs, especially in the early years of their life. However, this presumption is not based on empirical evidence and is highly problematic as it reinforces gender stereotypes and biases.

One of the primary reasons for this gender bias is the patriarchal nature of Indian society. Traditional gender roles assign women the responsibility of taking care of children and the home, while men are seen as the primary breadwinners. This has resulted in a cultural belief that women are better suited for childcare and child-rearing and that it is their primary role in society.

Photo credits: Times of India

Men as caregivers: An oxymoron?

Palkovitz (1997) suggests that the traditional gendering of caregiving responsibilities is not based on biology or innate differences between men and women, but rather on socialisation and cultural norms.

He argues that men can be just as nurturing and competent as mothers when given the opportunity to develop their caregiving skills

In patriarchal societies, the concept of men as caregivers is often perceived as a deviation from the norm. Traditional gender roles dictate that men are providers and protectors, while women are expected to assume the role of caregiver. These rigid gender roles are reinforced by societal norms and cultural expectations, which often lead to the marginalisation of men who take on caregiving responsibilities.

This marginalisation of men in caregiving roles is a form of patriarchy, as it reinforces the gender binary and perpetuates the notion that certain roles are only suitable for men or women. This perception is not only detrimental to men who wish to take on caregiving roles but also to society as a whole, as it limits the potential for shared parenting responsibilities and reinforces gender-based power imbalances.

Furthermore, the stigmatisation of men in caregiving roles is often accompanied by the denigration of traditionally feminine activities, such as cooking, cleaning, and child-rearing. This further perpetuates patriarchal ideals by reinforcing gender-based stereotypes and promoting the idea that men who take on caregiving roles are somehow less masculine.

One of the most glaring examples of this bias can be seen in the portrayal of male caregivers in popular culture. The character of Sandy, the male nanny in the hit TV show Friends, is a prime example. Despite being portrayed as kind, loving, and nurturing, the character is still subject to ridicule and suspicion from the show’s other characters. This reinforces the idea that men are not capable of providing adequate care for children, and that it is not a suitable career choice for them.

The idea of ‘Paternal Leave’

Obviously, no conversation on caregiving and men would exclude the ongoing debate in the Indian State about the notion of ‘Paternal leave’

Paternal leave is a policy that allows fathers to take time off work to care for their newborn or newly adopted child. The concept of paternal leave is rooted in the recognition that caregiving is not solely the responsibility of mothers and that fathers should also have the opportunity to bond with and care for their children in the early stages of their lives. The implementation of paternal leave policies varies across different countries, but the underlying principle remains the same – to promote gender equality by recognising the importance of caregiving as a shared responsibility between men and women.

While the policy is intended to make fundamental changes and showcase a transformation from the erstwhile traditional understanding of partners’ acclaim, ‘she is pregnant’ to ‘we are pregnant’ but from a realistic lens, this notion is not easily translated into actuality.

Paternal leave policies, in their current form, can place an additional burden on women, especially in societies where women are still expected to assume the primary caregiving responsibilities. This burden can manifest in several ways.

First, if the paternal leave policy is not accompanied by a corresponding increase in overall leave entitlements, women may be expected to take on additional work to compensate for their male partner’s absence. This can lead to an increase in the workload of women, who are already often overburdened with household and caregiving responsibilities.

Second, if the paternal leave policy does not provide adequate financial compensation for fathers who take leave, it may incentivise women to continue working, even if they would prefer to take time off to care for their children. This can perpetuate gender-based wage gaps, as women may end up earning less than men due to taking time off for caregiving responsibilities.

Lamb (2000) notes that research on Father Involvement has shown that fathers who are more involved in their children’s lives tend to have children who are more socially and emotionally competent, have higher academic achievement, and are less likely to engage in delinquent behaviour.

If this is so, what is stopping us as a society from manifesting a greater role for fathers in child caregiving and nurturing?

If you don’t know this already, you’re in fact an ‘Unfit Mother’

In child custody battles, it is unfortunately not uncommon for one parent to try and portray the other parent as “unfit” in order to gain custody. Women are often unfairly targeted with this tactic, and one of the ways in which they are portrayed as “unfit” is by accusing them of having extramarital affairs. This approach is highly problematic and reinforces misogynistic attitudes towards women.

The suggestion that a woman’s infidelity makes her a bad mother is rooted in the sexist idea that women’s value lies in their sexual purity and their ability to conform to traditional gender roles.

This belief is not only outdated but also perpetuates harmful double standards in society, where men are often excused for their infidelity while women are stigmatised.

Moreover, the notion that a woman’s extramarital affair automatically disqualifies her from being a good mother is not only unfounded but also deeply unfair. A person’s infidelity does not necessarily correlate with their ability to parent their child in a loving and nurturing manner. Additionally, it is not uncommon for both men and women to have affairs, and it is unfair to single out women and accuse them of being “unfit” based on this one factor alone. This reinforces gender stereotypes and perpetuates the idea that women who do not conform to traditional gender roles are somehow “bad” or “immoral.” It can also have a devastating impact on women who are already going through the difficult process of a divorce and a custody battle.

Mothers are sometimes unfairly portrayed as “selfish” in custody battles when they spend time on themselves, such as pursuing their career or hobbies.

The argument that a woman is “selfish” for pursuing her own interests is based on the assumption that women should prioritise their roles as wives and mothers over their own personal goals and desires. This idea is rooted in traditional gender roles, where women are expected to be nurturing, selfless, and devoted to their families. Let’s be honest, have we ever had cases of declaring a father as ‘Unfit’ just because he works, and more importantly, enjoys his work?

The problem with this argument is that it ignores the fact that women are individuals with their own interests, goals, and aspirations. Women can be loving, nurturing parents while also pursuing their own passions and interests. The very fact that she couldn’t be ‘sacrificial enough’ portrays how the ‘selflessness’ becomes a mandate in order to be accepted as a ‘mother’, that too, not a ‘good’ one because a ‘good mother’ must also be able to make sacrifices and also not complain about them.

The paramount consideration of child’s welfare in custody cases

Based on the above discussion, it seems as if child welfare is the last priority when it comes to custodial cases. However, legally, that’s not entirely true. Or for that matter, it shouldn’t be true,

“In any dispute regarding custody, it is hereby established that the welfare of the child shall be of paramount consideration”

In matters of custody, it is legally mandated that decisions be made in the best interests of the child. However, the presence of gender bias may impede the objective evaluation of a father’s capacity to provide care, thereby compromising the fairness of the assessment. Furthermore, it is a well-established fact that the legal system has historically accorded greater significance to financial stability as opposed to emotional and caregiving capabilities, thereby placing men at a disadvantage who may not possess comparable emotive means as their female counterparts.

It is imperative to acknowledge that the conventional gender-based allocation of work, which assigns women the primary role of caregiving, is not only discriminatory but also curtails the father’s capacity to actively engage in the child’s upbringing. This recognition is of utmost importance. The promotion of shared parenting and the encouragement of fathers to assume a more active role in their child’s life may serve as a means for India to challenge prevailing societal attitudes towards parenting and foster gender equality within the family unit. It is widely recognised that the presence of both parents in a child’s life is crucial for the development of healthy relationships and a positive sense of self.

However, this is not to be cynical about the system. “Change is the only constant” and that has been well-reflected by Indian courts in some cases.

In the case of Gaurav Nagpal v. Sumedha Nagpal (2009), the Supreme Court of India held that the welfare of the child was the paramount consideration in custody disputes. This principle shall be upheld and given utmost importance in all proceedings related to custody disputes and that the court must take into account all relevant factors, including the child’s age, health, education, and emotional and physical development

In the case of Varsha Kapoor v. Usha Rani (2011), the Delhi high Court held that the welfare of the child was the overriding consideration in custody disputes, and that gender stereotypes and biases should not influence the decision-making process.

The concept of Guardianship is recognised by the Indian legal system pursuant to the Guardians and Wards Act, of 1890. This provision establishes the legal basis for the resolution of child custody disputes. Pursuant to Section 17 of the aforementioned Act, it is within the court’s purview to designate either parent or any other individual as the legal guardian of a minor child. Notwithstanding any other provisions, it has been observed that the court has a tendency to grant custody to the mother in actuality.

In this regard, It is proposed that an amendment be made to the Guardians and Wards Act, of 1890, to include provisions for joint custody as a means of achieving the aforementioned objective. The implementation of joint custody would result in the equitable distribution of rights and responsibilities between both parents in regard to the upbringing of the child. The approach of joint custody has been implemented by various nations, including the United States of America, where it has become the prevailing practice.

The notion of joint custody may serve to mitigate some of these concerns by guaranteeing that both parents possess an equivalent voice in the child’s existence. The term “joint custody” pertains to a legal arrangement in which both parents are granted equal rights and responsibilities in the upbringing of their child. The aforementioned may encompass determinations pertaining to the child’s education, healthcare, and overall well-being. The norm of joint custody has been adopted by various countries, such as the United States, Canada, and Australia, acknowledging that both parents possess an equal responsibility in the upbringing of their child. It is recommended that India consider the experiences of other countries and implement comparable policies to safeguard the best interests of the child while affording both parents equal opportunities to participate in the child’s life.

Conclusion

The gender biases that exist in custodial allocation in India are deeply ingrained in societal attitudes and norms. Despite efforts to promote gender equality and challenge stereotypes, there is still a tendency for courts to award custody to the mother based on assumptions about women as natural caregivers.

This reinforces the gendered division of labour in child-rearing and places a disproportionate burden on women. To address this issue, there is a need for greater awareness and sensitivity to issues related to gender equality and the importance of the child’s relationship with both parents.

Ultimately, the best interests of the child should be the paramount consideration in custody disputes, and gender biases and stereotypes should not influence decision-making. By working towards a more just and equitable society, we can ensure that children have access to the love and support of both parents, regardless of gender.

References

Githa Hariharan v. Reserve Bank of India and others, (1999) 2 SCC 228
Mohinder Kaur v. K.S. Jagjit Singh, (2000) 2 SCC 465
Shyamrao Maroti Korwate v. Deepak Kisanrao Tekam, (2018) 6 SCC 72
Danial Latifi and another v. Union of India and others, (2001) 7 SCC 740
Suresh Kumar Kaushal v. Naz Foundation and others, (2014) 1 SCC 1
National Legal Services Authority v. Union of India and others, (2014) 5 SCC 438
Varsha Kapoor v. Usha Rani (2011), Delhi High Court, FAO No. 445 of 2010

Rudraksha Sharma is a 20-year-old law student currently pursuing his degree at NMIMS School of Law Navi Mumbai. With a passion for justice and a keen interest in the legal field, Rudraksha is driven to make a positive impact on society through his career in law. He is dedicated to academic excellence and constantly seeks to broaden his knowledge and skills in various areas of law.

Rudraksha Sharma