A Review of Laws Governing Marital Separation in India: (In)visible Children?

IF 1.5 3区社会学 Q2 FAMILY STUDIES

Child & Family Social Work Pub Date : 2026-07-05 Epub Date: 2025-10-01 DOI:10.1111/cfs.70065

Bhavya Jain, Nidhin K P

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引用次数: 0

Abstract

Children whose parents undergo separation often experience significant emotional, social and legal consequences, yet their perspectives and well-being are frequently sidelined in law and policy. In India, marriage and divorce are regulated through diverse religious personal laws as well as a secular legislation. This article critically reviews the treatment of children within India's divorce laws, focusing on how they conceptualize children's rights, welfare and participation. Using qualitative document analysis and a thematic approach informed by the new sociology of childhood, the study examines the laws governing marital separation in India. The analysis shows that while these laws consistently invoke the principle of the child's welfare and provide some child-friendly procedures, they largely reduce children's legal presence to questions of custody, legitimacy and property. Children born within marriage are privileged over others, and children's voices in custody decisions remain limited and discretionary. The findings suggest that Indian divorce laws reflect a paternalistic view of children, positioning them as dependents rather than as rights-bearing individuals. By highlighting these gaps, the article contributes to broader debates on children's rights in the context of parental separation and underscores the need for reforms that recognize children as active participants in legal processes affecting their lives.

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对印度婚姻分居法律的回顾：（在）可见的孩子？

父母分居的孩子往往会经历重大的情感、社会和法律后果，但他们的观点和福祉往往在法律和政策中被边缘化。在印度，婚姻和离婚是通过不同的宗教个人法以及世俗立法来规范的。本文批判性地回顾了印度离婚法中对儿童的待遇，重点是他们如何将儿童的权利、福利和参与概念化。本研究采用定性文献分析和新儿童社会学的专题方法，考察了印度婚姻分居的法律。分析表明，虽然这些法律一贯援引儿童福利的原则，并提供一些对儿童友好的程序，但它们在很大程度上将儿童的法律存在简化为监护、合法性和财产问题。在婚姻中出生的孩子比其他孩子享有特权，孩子在监护权决定中的发言权仍然有限，而且是自由裁量的。研究结果表明，印度的离婚法反映了家长对孩子的看法，将他们定位为受抚养人，而不是拥有权利的个体。通过强调这些差距，文章有助于就父母分居背景下的儿童权利进行更广泛的辩论，并强调需要进行改革，承认儿童是影响其生活的法律程序的积极参与者。

本文章由计算机程序翻译，如有差异，请以英文原文为准。

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来源期刊

Child & Family Social Work Multiple-

CiteScore

3.50

自引率

5.90%

发文量

期刊介绍： Child and Family Social Work provides a forum where researchers, practitioners, policy-makers and managers in the field of child and family social work exchange knowledge, increase understanding and develop notions of good practice. In its promotion of research and practice, which is both disciplined and articulate, the Journal is dedicated to advancing the wellbeing and welfare of children and their families throughout the world. Child and Family Social Work publishes original and distinguished contributions on matters of research, theory, policy and practice in the field of social work with children and their families. The Journal gives international definition to the discipline and practice of child and family social work.