This Article is authored by Advocate Anil Malhotra.
Hindu Minority and Guardianship Act, 1956 (HMGA), declares that natural guardian of a Hindu minor boy or unmarried girl shall be father and mother, provided that custody of a minor who has not completed 5 years of age, shall be with mother. HMGA does not contain any independent, legal or procedural mechanism for deciding custody rights or declaring Court appointed guardians. Reference to word “Court” in HMGA, shifts a parent or any other person seeking appointment as a “guardian” to seek relief under a 132 year old colonial law i.e. the Guardian and Wards Act, 1890 (GWA). Parents are forced to seek exclusive temporary and permanent custody of their biological offspring as single guardians. Sad, but true. Child custody issues between parents are to be determined under GWA, upon a natural parent wanting to be declared as an exclusive guardian to his own natural born child. Joint or shared parenting is not an option. Antique laws rule the roost.
India is a signatory to United Nations Convention on Rights of Child (UNCRC). Consequently, definition of “best interest of child” has been implanted from UNCRC in Juvenile Justice (Care and Protection of Children) Act, 2015 to mean “the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social wellbeing and physical, emotional and intellectual development". Axiomatically, Courts in India, are duty bound to ensure true import of this meaning to full expression. Supreme Court in 2019 in a child centric approach held that “best interest of child”, “cannot remain love and care of mother as primary care giver of an infant few years old.” Glass ceiling of gender preference was shattered to provide neutrality to parents. Presumption of maternal custody as sound child welfare policy is now rebuttable. In 2022, Supreme Court held child welfare get precedence if custody of a small child with mother is to be disturbed, as such orders are not passed for protecting rights of parents.
Law Commission of India report in 2015, on Reforms in Guardianship and Custody Laws in India, recommended joint custody and shared parenting, whilst disagreeing with single custody parents. Exhaustive recommendations were made to suggest amendments in HMGA and GWA for joint custody and guidelines for custody, child support and visitation arrangements. Report 263 of Law Commission of India on, Protection of Children (Inter-Country Removal and Attention) Bill, 2016, recommended a draft Bill for protecting the best interest of children relating to custody as per UNCRC. Report of Justice Bindal Committee submitted to Government in 2018 also suggested that best interest of children is of paramount importance in matters relating to child custody in view of UNCRC. Alas, these reports gather dust in Government archives. Stalemate results in ugly custody disputes. Supreme Court in 2017, highlighted the concept of Parental Alienation Syndrome, and held that “a child-centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the child, who are the future of the nation.” Sadly, alienated children polarised irreversibly by single custody laws, do not even want to speak or see non custodial parents.
Pandemic times also see custodial parents taking advantage and denying visitation rights to non custodial parents resulting in catastrophic consequences. Family Courts offer little aid to mollify grievances. Supreme Court in 2020 has permitted children to travel outside India during pandemic times, holding a father can very well take care of welfare and safety of minor. General guidelines as practice directions are dire need of hour. Shared or joint parenting with equal rights is a viable option. Family Courts free to devise their own procedure, independent of technicalities of law, can formulate out of box methods and insist children be shared by father and mother. Being caught up in conventional single parent custody traps is outmoded and archaic. It ruins the child and turns parents into mental wrecks. Antiquity must go.
Supreme Court judgements shall be binding on all courts. In absence of a clear codified law on inter-parental child removal issues, much needed clearer path of innovative solutions by Family Courts will guide litigants and courts. Children are not chattels to be possessed by one parent. Change is needed. Prophecy of Wordsworth resounds, reverberates and echoes, resonating that the child is the father of man.