There was a time when it was unthinkable for a woman to give up custody rights over her children during divorce proceedings. Increasingly, though, women are beginning to consider the questions 'Do I really want custody?' and 'Is this best for the child?' Mothers find that, in the current social dispensation, when they have custody, it almost frees the fathers from all responsibilities.
"My marriage hasn't been working for sometime now and we have decided to go for a divorce. While Vipul might not have fulfilled my emotional needs, I do realize and appreciate that he is a great father to my four-year old daughter. This is why I am seriously thinking of giving up custody rights over Sonalika. The only issue in my mind is that she might feel that her mother abandoned her to follow her own dreams," says Deepanjali Sarkar*, 34, a Delhi-based media professional.
This raises another pertinent question: Do women opt for custody due to social pressure and internalization of gender roles? Maybe the biggest evidence of this is that all the women this reporter spoke to were ready to talk off-the-record but had reservations about being quoted. "While I believe that that my decision to be a non-custodial parent is in my son's best interests, I will always have to be apologetic about it. This is probably the reason that I still am thinking about it," said Aparna Sachdev, 30, a human resources development executive living in Delhi.
Lawyers too have noticed the change. "In 90 to 95 per cent of cases, mothers still opt for the custody of their children; but now there are some cases where they willingly let go. For instance, there was this case where the girl had gone in for an inter-caste marriage against her parent's wishes but was later unable to adjust to the different culture. She then decided to give up her child and come back to her family. There was another case where the woman wanted to follow her career (she is now in the US) seriously and finally decided to let go of custody rights. The child is now with the father in Hyderabad," says Anzar Hasan, who deals primarily with matrimonial cases in the Delhi High Court.
There is also been an increase in the number of divorce cases and the growing acceptability of divorce in India, certainly in urban India. According to a recent survey conducted by 'India Today', a prominent weekly magazine, in four metros - Delhi, Mumbai, Chennai and Kolkata - almost 70 per cent of divorce cases now involve couples below 35 years of age, driven apart by stressful lifestyle and intolerance. The survey also found a dramatic increase in the number of cases filed by women.
"I feel that I am hardly there for the kid anyway because of my long working hours. But we had a good support system at home with my in-laws. With our marriage breaking up, I just feel that my son is very attached to his grandparents, and that I should probably not take that away from him. This makes me feel that it might be better if I am the non-custodial parent. However, I must say that this is possible only in situations where there is no animosity between the couple. I know I can visit my son anytime I feel like it," says Sachdev.
The law highly favors women when it comes to custodial rights. "In most cases, custody is awarded to the mother with visitation rights to the father. Unless the mother is unable to look after the child, she is most likely to get custody. Of late, there are at least some instances where mothers give up custody rights. A case that comes to mind is of a mother who went to the US to pursue further education. Initially she wanted custody, but later realized that it would not work because the child was being pulled in two directions by his parents. Finally, the father got custody of the child," says Osama Suhail, a lawyer dealing with matrimonial cases in Delhi.
There are, of course, celebrities who rang in the trend sometime back. The most prominent case being that of Mohammad Azharuddin, former Indian cricket team captain and his ex-wife Naureen. There were news reports that Naureen took Rs 2 crore from Azharuddin to give up custody of her two sons. She is now married to a Canadian businessman. Another case is that of a model and actress, Kunika, who gave up the custody of her son from first marriage to carve a niche for herself in Mumbai's tinsel town.
Lawyer Mayuri Singh of Lawyers Collective, however, has not observed this trend in her area of work - perhaps suggesting that it might still be restricted to a certain socio-economic strata. "We give legal advice to anybody who needs it, so mostly people who come to us are the ones who cannot afford it. So, in the less financially secure strata of society, I have not come across a woman who willingly gives up custody rights over her children. They do so only when they are unable to financially support the child for one reason or another," says Singh.
(*Some names have been changed to protect identities.)