Blog authored by V. Krishna Laasya, a law student from School of Excellence in Law, Tamilnadu Dr. Ambedkar Law University, Chennai
A mother’s rights may be classified into- General Rights and Custody Rights. Custody Rights include, the child’s major decision taking authority after initiation of divorce or separation proceedings by the mother and the father of the child. General Rights of a mother include Maternity Rights, Property Rights etc.
This Article emphasizes on the concept of Maternal Rights and Custody Rights of the parents and analyses the intricacies to check if there is importance given to a mother over that of a father.
A marriage, if led to separation, the most affected people would be the children of the couple who are initiating divorce proceedings. The Indian law (through the guardian, Judiciary) holds that though the parent’s rights are important, welfare of the child holds the most importance, especially in case of a minor child.
Welfare of the child depends on the facts and circumstances of any case and cannot be determined through a strict guideline book. But more often than not, welfare of the child depends on the following: upbringing (both ethically and morally), provide good education facility, economic and financial well-being of the child and the overall growth of the child. The mother and father have equal right over a child’s custody. The court is the official authority to decide upon the child’s custody.
Personal laws and the codified statutes of secularity have differing opinions on the custody vide the Guardian and Wards Act, 1890 where the court decides upon the welfare of the child in such a way that there is a balance between the two. Majority of the times, the court decides upon granting a joint custody of the child in such a way that the child does not get affected and receives love and affection from both the parties.
The mother’s General Rights are superior by way of the grant of maternal rights.
The Maternity Benefit Act, along with the Maternity (Amendment) Bill, 2017 provides for maternity leave to all mothers in factories, corporate firms, shops, establishments etc and the criteria for availing the same is work for 80 days for the last 12 months. Paid leave for the period stipulated can also be availed as a part of the average daily wage. The maternity leave granted has been extended to 12 weeks. Medical bonus is now a part of the Benefits availed.
Norms under the Maternal Leave include
- No long standing working hours and no difficult tasks will be allocated
- Crèche facility is to be made available in the establishment and the mother can avail the facility for a stipulated time.
- Health is to be given utmost importance during the six weeks following the delivery or miscarriage.
- No dismissal of a female employee during the period of pregnancy or the maternity leave.
The consideration of a child is not decided on the criteria that “Mother has more rights over the father or vice versa”. It is decided on the basis of, from whom the child can gain more love, affection and well-being. Thus, no legal, vested right or a preferential right is given more importance than that of welfare of the child.
The concept of Maternity Benefits can be considered a stepping stone for mothers on having a right over the child over that of a father. However, it must also be highlighted that a mother’s rights over a child is not exclusively dealt with as matter of child’s possession. Even if it is considered to be so, the fact that nowadays few countries are taking the initiative of granting paternal leave, must be taken into account.
Though, there is no explicit clause in any act that the mother has more rights, it is more often than not, left to the discretion of the Court in case of a minor child and the child’s discretion after attaining majority. Though, in a non-legal perspective, a father’s name is carried on by the child, the world is changing dynamically and the mother is gaining equal importance.
 Child Custody Laws and the Factors of Welfare Constitution, see < http://www.fortunelegal.in/child-custody-laws-in-india.html> last accessed at 18 Sep 2020.
 Benefits availed as a part of the Maternity Benefit Amendment, see <https://www.livemint.com/money/personal-finance/the-benefits-women-are-entitled-to-and-the-rights-they-can-claim-under-maternity-1557655754106.html >. Last accessed on 18 Sep 2020
 Maternity Leave, Consequences and Ill-effects, see <https://www.startuphrtoolkit.com/maternity-leave-in-india/>. Last accessed on 18 Sep 2020.