When unwed parents battle for their child

Born to a live-in couple who have since parted ways,a three-year-old is at the centre of an unprecedented legal battle for her custody

Written by MAYURA JANWALKAR | Mumbai | Published: September 14, 2012 3:45 am

The battle for the custody of a child born from a live-in relationship has highlighted an unprecedented legal dilemma facing the couple.

The live-in couple,now estranged,have a three-year-old daughter whose custody they are fighting for in the Bombay High Court. The father has been granted interim custody but the case will proceed,now in the district court in Thane.

Each parent has indulged in mudslinging against the other. The man has claimed that the child’s mother is a bar dancer and lives a life of “debauchery and immorality” that he did not wish for his daughter,while the woman filed a kidnapping complaint against the man,denied his allegations and said he had concealed his first marriage and had maintained a “walk-in-and-walk-out relationship” with her only to satisfy his lust.

Legal experts say it is the welfare of the child that will be paramount in the eyes of the law. While there are laws that may aid either of them to strengthen his or her case,the court will test the ability of each parent to look after the child.

The battle comes at an age when live-in relationships are no longer frowned upon,but when society might not be ready yet for the children of such couples after such an estrangement,legal experts say.

“Marriage is no longer an institution. The increasing divorce rate is indicative of that. Couples married as recently as three months earlier are going in for divorce,” said leading family court lawyer Mridula Kadam. She said this has led to more and more people opting for live-in relationships.

“A child born from the union of a man and a woman,in my eyes,would be legitimate. But in the eyes of the law,a child is legitimate only when it is born within wedlock,” said lawyer Kranti Sathe.

She said the Protection of Women from Domestic Violence (DV) Act of 2005,however,puts a live-in relationship at par with a marriage. “The DV Act was introduced for relationships that had no legal sanctity. It has enough provisions for a woman in a live-in relationship to seek the child’s custody and alimony,” Sathe said. She said that ordinarily,if the child is under six years old,custody is granted to the mother since she is the better equipped to look after it.

Sathe said the age of the child,however,cannot be the sole reason for denying custody to the father. Under the law,the father is the natural guardian of the child and he can seek its custody under the Hindu Adoption and Maintenance Act,1956,or the Guardians and Wards Act,1890.

“The child has an independent right to maintenance,” Kadam said. “Even if the child stays with the mother but the father accepts that it is his child,the child’s maintenance can be claimed from the father.”

Dr Rajan Bhonsle,counsellor and consultant in sexual medicine,observed that most live-in couples do not plan to have a child and pregnancies are accidental. “The couple is thrilled that the woman is pregnant. They don’t wish to abort their love child. But they don’t think of the possibilities in the future,” he said. Bhosale said a live-in relationship is exactly like marriage without a formal ceremony. Some couples feel they are much better off in a live-in relationship than they are in a marriage,he said.

Since there has been no marriage,there cannot be a pre-nuptial agreement between a live-in couple. But in the event of their parting ways,they must ideally have something written down that both will adhere to,Bhonsle said. “That may not be useful in a court but it would make things a lot easier if the couple make their intentions clear in advance,” he added.

Professor of sociology Nandini Sardesai said,“Its a catch-22 situation.” She said although live-in relationships are becoming increasingly common,in the event of a pregnancy couples decide to get married to legalise their relationship. “Even abroad,the trend is to get married to give the child legitimacy.”

To be caught in a tricky situation such as the custody battle between the estranged live-in partners,Sardesai said,shows the lack of foresight and maturity. She said if a couple decides to live in so that they don’t have to bear the responsibilities of marriage,they should be mature enough to know whether they can shoulder the responsibility of having a child together. “ Sex cannot be a continuous process. You can’t have your cake and eat it too,” she said.

Kadam said live-in relationships were looked down upon until a few years ago,but that has changed with time. However,regarding the perception of children born out of live-in relationships,she said,“ We are not ready for that yet. It’s going to take time for children of estranged live-in partners to have the same standing as that of children whose parents’ marriages has been broken.”

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