The Invisible Third Party: Rethinking the Child’s Place Within Marriage
- Legal Journey
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Abstract
Indian family law has traditionally conceptualised marriage as a union between spouses or families, while treating the child as a derivative subject whose legal relevance emerges primarily at the point of marital breakdown. This paper challenges that framing by foregrounding the child as an ever-present yet structurally invisible participant within the institution of marriage itself. It argues that although Indian law frequently invokes the “best interests of the child,” this standard is applied in a predominantly adult-mediated and outcome-oriented manner, leaving the child’s lived experience of marriage doctrinally and procedurally under-theorised.
Employing a qualitative and interdisciplinary doctrinal methodology, the paper integrates Supreme Court jurisprudence, statutory analysis, secondary empirical data, and insights from developmental psychology and sociology. It examines why parents marry, why children are born, how children are perceived within marriage, how they experience marital relationships, and the psychological, social, educational, and legal consequences that follow. Through close analysis of custody and guardianship jurisprudence, the paper demonstrates that the best interests standard in India functions largely as a protective doctrine rather than a participatory one, often positioning children as objects of adult claims rather than autonomous rights-bearing subjects.
The paper concludes by arguing for a reconceptualisation of marriage as an institution accountable to children. It proposes reforms aimed at recognising children’s evolving autonomy, embedding meaningful participation, decoupling child welfare from the marital binary, and prioritising emotional and developmental well-being. Re-centering the child within marriage, it contends, is a constitutional commitment to dignity, voice, and personhood.
Introduction
Marriage in India is traditionally framed as a union between two individuals or, more deeply, between two families. Yet this binary framing conceals a crucial third presence: the child, whose life, identity, and rights are profoundly shaped by the marital institution. While law and custom treat the child as a product/ extension of marriage, children experience marriage as the primary environment in which their emotional, psychological, cultural, and social selves are formed.
Despite this centrality, Indian law often engages with the child only when marriage breaks down, most visibly through custody litigation. The everyday functioning of marriage, its norms, pressures, and asymmetries, remains legally under-theorised from the child’s perspective. This paper argues that the child must be understood not as a derivative subject of marriage but as an autonomous rights-holder embedded within marital dynamics.
To develop this argument, the paper integrates jurisprudence, empirical findings, doctrinal critique, and psychological research to uncover the systemic marginalisation of the child within Indian family law and discourse. While doing so the paper also tries to answer various questions relating to marriage from the perspective of a child.
The Basic Questions
This article examines the structural invisibility of the child within the institution of marriage in Indian family law. While legal doctrine frequently invokes the “best interest of the child,” the child’s lived experience of marriage, prior to and independent of marital breakdown, remains largely untheorised. Against this backdrop, the article is guided by the following basic questions:
Why Do Parents Get Married? The Child in Marital Intentions.
Why Is the Child Born? Motivations and Expectations.
How Is the Child Seen Within a Marriage?
How Does the Child Perceive the Marriage?
What are the consequences for the Child?
Through these questions, the paper seeks to move beyond custody-centric analysis and develop a child-centred critique of marriage as a legal and social institution.
Methodology and Scope
Methodology
This piece adopts a qualitative, interdisciplinary doctrinal methodology, combining legal analysis with insights drawn from sociology and developmental psychology.
Doctrinal Legal Analysis - The core of the article is a close reading of Indian Supreme Court jurisprudence on marriage, custody, guardianship, and child welfare, including decisions under the Hindu Marriage Act, Guardians and Wards Act, and related constitutional principles under Article 21. Particular attention is paid to how courts conceptualise the child’s role, voice, and agency within marital and post-marital disputes.
Statutory and Normative Analysis - The paper analyses statutory frameworks governing family law and child welfare to identify structural silences and asymmetries, especially the absence of mechanisms that recognise the child’s position within an ongoing marriage. International norms under the United Nations Convention on the Rights of the Child (UNCRC) are used as interpretive benchmarks rather than as binding standards.
Use of Secondary Empirical Data - Empirical references are drawn from established secondary sources such as the National Family Health Survey (NFHS-5), ASER reports, UNICEF publications, and large-scale international surveys (e.g., Pew Research Center). These datasets are used illustratively to contextualise legal arguments, not to establish causal claims.
Psychological and Sociological Literature - Insights from developmental psychology, particularly attachment theory and studies on parental conflict, are incorporated to illuminate the child’s lived experience of marriage. These findings are treated as correlational and contextual, not determinative of individual outcomes.
Scope and Limitations
The paper focuses primarily on heteronormative marital frameworks as recognised under Indian family law, while acknowledging the growing presence of diverse family forms. It does not conduct original empirical fieldwork, nor does it claim statistical generalisability. Instead, its contribution lies in offering a normative and doctrinal critique of how marriage is legally imagined, and how that imagination marginalises the child.
Why Do Parents Get Married? The Child in Marital Intentions
1. Marriage as Social Obligation
Marriage in India continues to function as a key marker of adulthood and social legitimacy. National-level analyses based on NFHS and DHS data indicate that marriage remains near-universal, with well over nine in ten women married by their late twenties, underscoring the continued normative centrality of marriage in adult life. Marriage is closely tied to reproduction in India: childbirth overwhelmingly occurs within marriage, and a substantial body of research documents strong social expectations for women to begin childbearing soon after marriage.
Judicial reasoning has also reflected these expectations. In Samar Ghosh v. Jaya Ghosh (2007), the Supreme Court observed, by way of illustration, that a unilateral decision by either spouse, depending on the facts and circumstances, not to have a child may amount to mental cruelty. This reasoning reflects the persistence of normative assumptions linking marriage with procreation, through which the child is often presumed even before conception.
2. Marriage as Prerequisite for “Legitimate” Childbirth
Despite statutory reforms under Section 16 of the Hindu Marriage Act that have mitigated formal distinctions between “legitimate” and “illegitimate” children, social practices continue to police legitimacy. Demographic data indicate that an overwhelming majority of children in India are born within marriage, reinforcing the role of marriage as the dominant social framework for reproduction.
3. Cultural, Familial, and Religious Expectations
Extended family structures frequently function as sites where expectations of lineage continuity, caste affiliation, and ritual succession are maintained, shaping norms around marriage, childbearing, and intergenerational obligation.
Thus, even prior to the child’s birth, the marital framework anticipates and prescribes the child’s social role.
Why Is the Child Born? Motivations and Expectations
1. Child as Symbol of Marital Fulfilment
Pew Research Center surveys show that Indians place high cultural value on family life and children, with most adults saying it is important for families to have both sons and daughters and that lifecycle traditions involving children are important components of family identity.
2. Child as Carrier of Lineage
A substantial body of sociological research on family and kinship in India indicates that children are commonly understood by parents as bearers of caste affiliation, religious tradition, and familial lineage. While these expectations are deeply embedded in normative understandings of family, their strength and expression vary across regions, communities, and social contexts.
3. Child as Emotional or Marital Stabiliser
Psychological literature and family counselling practices indicate that many couples believe the birth of a child may stabilise or repair strained marriages, even though empirical studies caution that the transition to parenthood frequently introduces new relational stresses.
4. Constraints on Reproductive Autonomy
NFHS-5 data reveals that a substantial proportion of married women in India experience limited autonomy in reproductive decision-making, including constraints on timing, spacing, and consent. Many children are born not out of deliberate planning but structural pressure, reinforcing the child’s embeddedness in marital expectations.
How Is the Child Seen Within a Marriage?
1. The Child as Future of the Family
Within many Indian families, children are understood as bearers of caste continuity, religious obligation, and long-term economic security. Expectations surrounding inheritance, succession, and caregiving in later life frequently position the child as the future custodian of family identity and resources. As a result, inheritance and succession disputes often mediate moral judgments about parental conduct through claims made in the name of the child.
2. The Child as Emotional Bonding Mechanism
Judicial reasoning sometimes proceeds on the assumption that stable marital or caregiving arrangements are inherently beneficial to the child. This assumption can indirectly situate the child at the centre of adult efforts to preserve familial harmony. In Githa Hariharan v. RBI, the Supreme Court foregrounded the welfare of the child while dismantling rigid hierarchies in parental roles. However, the judgment conceptualised child welfare primarily as an outcome secured through adult arrangements and decision-making, without engaging with the child’s own participatory voice or emotional experience within the family.
3. The Child as Economic/Social Asset
Despite statutory prohibitions on child labour, children continue to participate in family-based economic activities in many contexts, particularly within informal and household economies. Such participation is frequently justified as part of familial duty, socialisation, or necessity, reflecting the persistent instrumentalisation of children as contributors to household survival and social standing rather than as autonomous rights-bearing subjects.
This practice is explicitly accommodated by law through the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (as amended in 2016), which exempts children below fourteen from the prohibition on labour when they assist in family enterprises outside hazardous occupations and outside school hours.
4. The Child as Object of Custody
Custody disputes often operate as adversarial contests between parents, with children positioned as the subject of competing claims rather than as independent participants. In Gaurav Nagpal v. Sumedha Nagpal (2009), the Supreme Court criticised the manner in which such adversarial custody litigation can reduce children to pawns in parental conflict, emphasising that these dynamics frequently undermine the child’s welfare.
How Does the Child Perceive the Marriage?
1. Marriage as Emotional Climate
Children primarily experience marriage not as a legal or ritual institution, but as a daily emotional environment shaped by patterns of care, conflict, communication, and silence. The quality of parental interaction forms the immediate context within which children understand relationships, security, and belonging.
2. Marriage as Identity Formation
Through everyday familial interactions, children internalise caste norms, gender roles, economic anxieties, religious expectations, and moral codes. Marriage thus functions as a key site of socialisation, transmitting broader social hierarchies and values to the child.
3. Internalising Parental Conflict
Empirical studies across jurisdictions consistently associate prolonged exposure to high-conflict parental relationships with increased risks of anxiety, emotional distress, and difficulties in emotional regulation among children. It is sustained conflict, rather than family form alone, that most significantly shapes these outcomes.
4. Adult Attachments
Attachment theory suggests that early relational patterns within the family can influence how individuals form and sustain relationships in adulthood. While not determinative, parental interaction styles often shape children’s expectations of intimacy, trust, and emotional security later in life.
Consequences for the Child
A. Psychological Consequences
1. Internalisation of Conflict
Indian qualitative and clinical studies suggest that children exposed to parental conflict often internalise responsibility for such conflict, with tendencies toward self-blame being particularly pronounced in patriarchal family settings that emphasise obedience and conformity.
2. Parentification
In Sheoli Hati v. Somnath Das (2019), the Supreme Court acknowledged the psychological harm caused to children by prolonged exposure to parental conflict, reflecting judicial concern about the emotional burdens placed on children in adversarial custody disputes.
3. Attachment Impairments
Prolonged exposure to familial conflict has been associated with disruptions in:
Secure attachment formation;
Emotional regulation; and
Expectations of future interpersonal relationships
B. Social Consequences
School-based studies indicate reduced peer competence and increased social withdrawal among children from high-conflict family environments. In the Indian context, stigma surrounding divorce or separation further contributes to withdrawal, lowered self-esteem, and social isolation.
C. Educational Consequences
Large-scale datasets such as NFHS-5 and ASER reveal associations between family disruption, residential mobility, and poorer educational outcomes, including reduced school performance and discontinuity in learning. Frequent relocation and instability in caregiving arrangements disrupt educational continuity and classroom integration.
D. Legal Consequences
1. Loss of Legal Stability
Children subjected to prolonged custody disputes often experience inconsistent guardianship and fragmented care arrangements. In Vikram Vir Vohra v. Shalini Bhalla (2019), the Supreme Court criticised a parent’s non-compliance with visitation orders, emphasising that such conduct undermines the child’s emotional well-being.
2. Identity Fragmentation
Judicially mandated changes in name, residence, or religious affiliation can destabilise a child’s developing sense of identity and continuity.
3. Procedural Exclusion
Although Section 17 of the Guardians and Wards Act, 1890 requires courts to consider the wishes of a child capable of forming an intelligent preference, the manner and weight of such consideration remain largely discretionary. In Nil Ratan Kundu v. Abhijit Kundu (2008), the Supreme Court emphasised the importance of listening to the child, yet meaningful and consistent child participation in custody proceedings remains limited in practice.
The Best Interest of the Child (BIC) Principle: A Doctrinal Critique
The BIC standard, derived from Articles 3 and 12 of the UNCRC, is intended to function as a substantive right, interpretive principle, and procedural rule. Indian jurisprudence, however, operationalises only its substantive aspect, neglecting the interpretive and procedural dimensions.
1. Strengths of BIC
Encourages holistic evaluation of welfare.
Moves beyond proprietary notions of parenthood.
Aligns India with UNCRC commitments.
2. Doctrinal and Structural Limitations
a. Judicial Subjectivity and Elasticity
In Rosy Jacob v. Jacob Chakramakkal (1973), the Supreme Court described the best interests of the child standard as ‘elastic,’ thereby conferring wide judicial discretion. Scholars have since argued that such elasticity risks allowing judges’ assumptions about gender roles, religion, caste, and family structure to influence custody determinations.
b. Gendered Assumptions
Although Indian courts have moved away from treating the tender years doctrine as an automatic rule, its underlying logic continues to surface in custody decisions. In Roxann Sharma v. Arun Sharma (2015), the Supreme Court framed maternal custody for a very young child in the language of welfare and caregiving, illustrating how maternal preference persists even when expressed in child-centric terms.
c. Adversarialism
Indian custody litigation continues to operate within an adversarial framework. In Gaurav Nagpal v. Sumedha Nagpal (2009), the Supreme Court criticised the adversarial nature of custody disputes for prioritising parental conflict over the child’s welfare; yet, this judicial concern has not translated into systematic procedural reform.
d. Lack of Child Participation
UNCRC General Comment No. 14 emphasises meaningful child participation as a procedural requirement of the best interests standard. In Indian custody jurisprudence, however, such participation is often limited in effect. In Lahari Sakhamuri v. Sobhan Kodali (2019), the Supreme Court recorded the child’s preference but ultimately subordinated it to judicial assessments of the child’s future welfare.
3. Statutory Frameworks Reinforce Marginalisation
Hindu Marriage Act (Section 26) - Children enter the legal framework only upon marital breakdown; the Act contains no mechanism for recognising children as rights-bearing subjects within an ongoing marriage.
Guardians and Wards Act (Section 17) - While the statute mandates consideration of the child’s wishes where the child is capable of forming an intelligent preference, it leaves the manner and weight of such consideration largely to judicial discretion.
Juvenile Justice Act - Although the JJ Act articulates child-centred and participatory norms, matrimonial courts rarely incorporate these standards into custody or guardianship proceedings.
Doctrinal Conclusion - As a result, the best interests of the child standard in India functions primarily as a protective doctrine rather than a participatory one, enabling the child to be represented by adult claims rather than heard as an independent subject.
The Persistent Objectification of Children in Law
1. Custody as Ownership
Despite formal commitment to child welfare, custody litigation frequently proceeds as a contest of parental entitlement, with children positioned as objects of dispute rather than independent rights-bearing subjects.
2. Tokenistic Consent
Although statutes require consideration of the child’s wishes, child participation in custody proceedings is often limited in practice, with interviews conducted in ways that are brief, formalistic, or insufficiently child-sensitive.
3. Residual Stigma
While statutory distinctions between legitimate and illegitimate children have been abolished, social stigma continues to influence inheritance disputes and custody narratives, often indirectly shaping judicial outcomes.
4. Exclusion from Proceedings
The absence of consistent child-friendly spaces, trained counsellors, and participatory procedures in family courts reinforces the structural invisibility of children within matrimonial and custody adjudication.
Conclusion: Re-Centering the Child in the Marital Institution
Indian family law continues to treat the child as a secondary figure; present symbolically, but absent doctrinally and procedurally. To reposition the child as a central rights-bearing subject, reform must occur along the following axes:
1. Recognising the Child as an Autonomous Legal Subject
Law must shift from a protective model to a participatory one. Autonomy must be understood as evolving capacity (UNCRC), not adult-like independence.
2. Transforming Judicial Processes
Mandatory child participation facilitated by trained counsellors.
Non-adversarial forums for custody and marital disputes.
Procedural incorporation of JJ Act standards.
3. Accommodating Diverse Family Forms
Law must decouple child welfare from the marital binary, recognising single-parent, queer, kinship-based, and cohabiting families.
4. Embedding Emotional and Developmental Welfare Into Legal Standards
Courts must prioritise continuity of care, emotional stability, and psychological safety over parental claims.
5. Normative Reframing
Marriage must be reframed not as an institution that produces or owns children, but as one accountable to them.
To make the child visible within marriage is not merely a doctrinal adjustment, it is a constitutional commitment to dignity, voice, and personhood.
Family law often looks at children only when disputes reach the courtroom, but the questions raised here extend far beyond litigation.
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