Law panel moots joint custody of minors of divorced parents

The Law Commission, in its report, has recommended joint custody of minors to both parents in case of a divorce, saying that Indian custody laws must change with the times.

  • The commission’s recommendations assume significance as in India the idea of shared parenting is still new to custody jurisprudence.

Details of the Report:

  • In its 257th report on ‘Reforms in Guardianship and Custody Laws in India’, the commission said the change in laws will let courts to consider awarding joint custody of children in circumstances beneficial to the welfare of the child. Or in exceptional circumstances award custody to one, with visitation rights to the other.
  • The report says that neither the father nor the mother of a minor can, as of a right, claim to be appointed by the court as the guardian unless such an appointment is for the welfare of the minor.
  • It also says, wherever possible, courts should now grant joint custody of minors. Recommending changes in the Hindu Minority and Guardianship Act and the Guardians and Wards Act, the panel said even after the Supreme Court’s judgment in the Gita Hariharan v. Reserve Bank of India case, the mother can become a natural guardian during the lifetime of the father only in exceptional circumstances.
  • The Law Commission has suggested amendments to the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956, to bring them in tune with modern social considerations.
  • The commission has recommended involving trained mediators specializing in dispute resolution.
  • The report also gives discretion to courts to extend child support from the existing age of 18 to 25 while considering the child’s academic and health needs. In case of a disability, child support can be extended up to whole life.
  • The report also introduces several other new concepts such as submitting parenting plans to court, recognizing grandparents’ rights by allotting visitation rights and guidelines for relocation of parents.

The commission said the amendments were necessary in order to bring these laws in tune with modern social considerations. The two draft Bills proposed by the panel to amend the existing laws also deal with removal of preference for the father as the natural guardian under Hindu law.

Present scenario:

At present, courts in India award a minor’s custody to one parent or the other depending on who they think will ensure the child’s welfare, though the legal position is different in Hindu law, which considers the father the natural guardian, and other secular laws, which consider the mother the natural guardian of a child.

Sources: The Hindu, Wiki.


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