Broken homes and the resultant divorce is traumatic for all families, except in cases where the level of incompatibility is so high that the bonds of wedlock becomes a mental stranglehold and life together turns into a living hell.
Divorce and separation were not new things before the Marriage Act was promulgated. In the extended Bhutanese family, the child never suffered, at least prior to 1980s. As it happened, the children always lived in the mother’s family in almost all such cases.
It is the same traditional approach that worked into our 1980 Marriage Act, whereby the mother ends up being the custodian of the children.
It is often said and there is a truism to a great extent that the mother always tends to give greater care and love to the children, even after divorce. The father may have all the money, but it takes a mother to give a sense of belonging. That is true when we look at the traditonal structure of our family. That was when tradition ruled the roost and legal process had not entered our lives.
There are people who believe that a piece of paper (marriage certificate) can keep two people together. In one way, that is true if we go by the proverb that marriage is made in heaven. So why should a pice of paper tie two people together through thick and thin.
That was fine when tradition and culture was a great bonding factor in our social lives. But when the traditional joint family structure breaking away at the seams, as more and more young people preferred to live far away from their home hearth, either in government, corporate or private servic e, the thread that bound us started getting stretched.
So we started nuclear families, away from our home and families. During the annual gathering of the family members, which usually happens when Lochoed (annual puja is being held, we are almost like strangers meeting for the first time, with our own likes and dislikes. We are only there bound by our connection with the ancestral home, which is at breaking point.
So when the Marriage Act 1980 came into force, the mothers ended up with the custody of the children. Nothing wrong with it. But when this traditional sentiment got expressed into black and white in the act, there were quite a few things that were not given due consideration.
How much would 20 percent of the father ‘s contribution help the child, if the mother is unemployed. And if she is saddled with two or three children under nine years of age, she may not even have the time to go out and earn a living.
Biological rights of the mother not withstanding, how about if the mother is not able to, forget the child’s right, provide a proper atmosphere or the necessary care due to various factors. There was a case of a father who lost his daughter to the mother . But then the father went from the dzongkhag court to the high court till he got the custody of the child. Of course he presented concrete proof of the mother’s inability to care for the child.
Now coming to the question of child support, most father’s had found it difficult to part with the 20 percent of his earning. The court may rule out that the mother has to be paid the amount but who will ensure that it will be paid every month. Every time the money is not paid, the mother has to run to the court. Some times, the father may not be living in the same dzongkhag. Who is going to trace him out and make him pay?
Therefore, the decision to amend the Marriage Act in conformity with the changing times would be a good approach.