Child Support And Child Incarceration In India

SYNOPSIS

Every individual is entitled to be provided with basic amenities such as food, clothing, shelter, and other requirements for a dignified sustenance. According to the principles of social justice, it is the natural duty of a person to provide these amenities to their family – parents and children in the form of maintenance. The maintenance law in India establishes the duty of a man to provide maintenance to his parents, wife, and children when and if they are unable to maintain themselves. The Code of Criminal Procedure, 1973, dictate the concept of maintenance in India in combination with several personal laws that extend the right of maintenance, not only to the wife, but also to her parents and children.

WHAT DO YOU MEAN BY CHILD SUPPORT & MAINTENANCE?

Child support is defined as a parent’s obligation to contribute to the financial maintenance of their child. the concept of child support is generally initiated when the parents of the child decided to get separated or divorced, hence when both parties start living separately, the child born out of the wedlock or relationship need not bear the brunt of the breakage of the relationship. 

Child custody in itself is a complex matter, and may be much more complicated when the parents of the minor are unmarried. In such cases, the mother of the child born out of wedlock gains the custody, while the father is left visitation rights. To elaborate it further, mother becomes the sole custodian of the child, holding legal and physical rights of the minor in matters regarding residence, schooling, sports, health needs, travel, vacations, child care, etc. The father holds the rights of visiting his child or shares the custody with the mother. The child support system parents who have never been married states that both parents shall pay for the child support as per their financial conditions and in case one of them is not able to pay, they can seek support and re-evaluate their circumstances based on the change in situations.

Every child born into family has been born into different circumstances and situations, due to which child support cannot be measured absolutely and equally in every case. Hence, judges need to examine their approach towards each case, but the law has laid down certain salient points to be overlooked while catering to child support. Some of them require to be like any child support from any previous marriage of either parent, some require the parent to pay for child support to his/her previous marriage. 

“Some of them pertain to be like any child support from the previous marriage of the parent, or the parent has to pay child support to his or her previous marriage, whether any parents is responsible towards any child from a previous marriage, out of both the parents is looking for the health insurances and the cost for the child, or day-care cost or whether either parent is required to pay union dues or has other amounts deducted from paycheques, ages of the children, whether either parent receives irregular income such as bonuses or incentive pay, or expects severance pay or other lump-sum payments, and, whether either parent lives with a new partner or spouse who contributes to household expenses.”

In India, the issue of custody may be dealt between parties or parents amicably among themselves, otherwise it shall be decided by the family court. The custody of a child is not an automated result of a divorce or separation, thus requiring one to sought for judicial remedies for the custody which may differ from religion to religion. The court holds the supreme authority to grant sole or joint custody according to the situation at hand. In cases of younger children, the court presumes to hand over the custody to the mother, however, preferences of the child are taken into account if the child is over 9 years of age.

CHILD INCARCERATION IN INDIA

A study by the Government of India in 2015 had revealed that Indian prisons accommodate about 419,623 prisoners, out of which 4.3%, or about 18,000 of them, are women. This study increased concerns regarding the children residing with their mothers in prisons and raised the important questions regarding the basic human rights guaranteed to those children. Women who face trial or found guilty of a crime are allowed to keep their children with them during their time in prison. According to prison statistics, about 1,866 children resided in prisons with their mothers up till 2015.

The Constitution of India assigns states governments to look after the administration and management of prisons. This gives the authority to state governments to establish and implement prisons laws as per their own discretion and requirements. However, these authorities still remain subject to centrally-enacted laws like Prisons Act, 1894. Hence, there still exists an enormous difference in laws pertaining to the managements of prisons and caretaking of the prison populations.
The age up to which mothers are allowed to keep their children with them in prisons varies differently in different states. In Delhi and Assam, children are allowed to stay with their mothers up till the age of 6, whereas, in Bihar, they are allowed to stay only up to the age of 2 years. The healthcare, medical and educational facilities provided to these children also varies drastically. In many states, children below the age of 5 are provided with the same food as the prisoners. Further, due to lack of adequate infrastructure and funding, special medical facilities remain unavailable to certain states to look after these children. According to the reports, metropolitan cities like Delhi, Chandigarh, and Mumbai are equipped with medical facilities catering to the requirements of children. In other states, provisions for children to attend nearby centres for education due to lack of a formal schooling system. The women in prisons with children also lack special services and provisions for food, medical, educational and recreational facilities. 

According to an investigation and the Supreme Court ruling in 2006, minor amendments had been made to the treatment of women prisoners of children. Due to this, a few prison departments started with providing fortified food and creche and nursery services, however, several convict mothers are still hesitant about sending their children to these facilities. But despite the limited public funds and other issues, several non-governmental organisations have sought to improve the living conditions of children in prisons by providing them with, for example, a smooth transition from jail facilities to residential schools. In a few states, the government brought NGOs to support impoverished prisoners.

LAWS ON CHILD SUPPORT OUTSIDE INDIA

From the list of 195 countries, unfortunately only 15 countries have accepted the agreement put forth by the United States enforcing child support, which include Australia, the Czech Republic, Canada, El Salvador, Hungary, Finland, Ireland, Northern Ireland, the Netherlands, Poland, Norway, Portugal, the United Kingdom, the Slovak Republic, and Switzerland. 

“The child support model is currently issued by the family courts and both the laws of the individual state and the system that has been there for several years in the state. Different countries have different laws regarding child support as a stepchild or step-parents as well.”

The German law requires the parental resources be split equally over the children. In Finland and Sweden, both parents have child-related expenses deducted from their income. Denmark follows the same rule of law as Germany, and Netherlands follows the same law as Finland and Sweden in case of child support. Canada gives preference to the child born into a wedlock or relationship and avoid including the new parent or stepchild into the equation and gives preference to the actual parents of the child. The law of United Kingdom does not take the new parents into account and only the paying parent’s resources are included, but both, the stepchild and the actual child are taken into consideration while paying for child support. 

WHAT AMENDMENTS CAN BE MADE FOR CHILD CARE AND SUPPORT IN PRISONS?

On analysis of laws of various countries, it is to be observed that amendments should also sought to address important concerns, such as development of infrastructure and facilities of prisons for women, which shall require a necessary increase in funding to prisons across the country. Further, modernisation of prisons shall ensure that children have improved living conditions and can lead a better life. Additionally, children should be allowed to remain with their mothers at least up till the age of 6 years, looking into the factors that involving the ‘best interest’ of the child, for example, in cases involving domestic violence. 

Special provisions for dietary, educational, medical and recreational facilities should also be made available and children, as well as mothers in all prisons. This would help the mental as well as physical growth of children from a young age. Separate prison administration catering solely to mothers and their children should also be proposed to the government, as they would provide a better atmosphere for parenting and more harmonious living conditions for children protecting them from susceptible violence within the general prison population. State governments should further ensure to include the aforementioned recommendation in jail manuals to ensure equal treatment of children residing in prisons across the country.

CONCLUSION

The Article 21 of the Indian Constitution guarantees the right to live with human dignity to every person. The Directive Principles mentioned in the Constitution also assure to provide suitable opportunities to children in order to ensure a healthy all-round development. India has also ratified various international conventions, such as the UNCRC, that obliges the Indian government to work towards the development of conditions that result in the benefit and well-being of these children. Thus, governments ought to recognise the need to make these necessary amendments to their prison policies so as to meet its international and constitutional obligations.