This Article is authored by Advocate Anil Malhotra.
Seeking custody of a child in the event of a marriage breaking down is a messy affair. While the concept of shared parenting is a reality in countries such as the U.S., the U.K. Australia, etc., it is not an option in India. Here, antique laws rule the roost.
What does the law say?
Two laws determine the custody of children in India. The first is The Hindu Minority and Guardianship Act (HMGA) of 1956, which states that the natural guardian of a Hindu minor boy or unmarried girl shall be the father and mother, provided that custody of a minor who has not completed five years of age shall ordinarily be with the mother. But the HMGA does not contain any independent, legal or procedural mechanism for deciding custody rights or declaring court-appointed guardians.
Hence, the fallback is on the second, colonial law i.e. The Guardian and Wards Act of 1890 (GWA). This deals with the appointment of a person as a 'guardian' to a child, both with respect to the child and property. Child custody, guardianship and visitation issues between parents are determined under the GWA, if a natural parent wants to be declared as an exclusive guardian to his/her own child.
Upon disputes between parents in a petition under GWA, read with HMGA, guardianship and custody can be vested with one parent with visitation rights to the other parent. In doing so, welfare of the minor shall be the paramount consideration.
What does "best interests of the child" mean?
India is a signatory to the United Nations Convention on the Rights of the Child (UNCRC). The definition of “best interests of the child” has been incorporated from the UNCRC in the Juvenile Justice (Care and Protection of Children) Act, 2015. The "best interests of the child" means, “the basis for any decision taken regarding the child, to ensure fulfillment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development" and is paramount in any custody battle. In 2019, the Supreme Court of India held in Lahari Sakhamuri v. Sobhan Kodali that the “best interests of the child" is wide in its connotation and "cannot remain the love and care of the primary care, i.e., the mother in case of an infant or the child who is only a few years old.” This is child-centric approach. Again, in 2022, the Supreme Court in Vasudha Sethi v. Kiran V. Bhaskar held that a child's welfare and not the individual or personal legal right of the parents are of paramount concern in a custody battle. In fact, welfare of the child must get precedence over the parents' rights.
Have any recommendations have been made for joint parenting?
Recommendations have been made for joint parenting by various committees. The Law Commission of India Report in 2015, on Reforms in Guardianship and Custody Laws in India, recommended joint custody and shared parenting. It disagreed with the idea of singular child custody with one parent. It made exhaustive recommendations for amendments in the HMGA and GWA for joint custody and for guidelines for such custody, child support, and visitation arrangements.
Report 263 of the Law Commission of India, titled The Protection of Children (Inter-Country Removal and Attention) Bill, 2016, recommended a draft Bill for protecting the "best interests of the child" relating to custody as per the UNCRC. The report of the Justice Bindal Committee, submitted to the government in 2018, also said that "best interests of the child" are of paramount importance in matters relating to child custody in view of the UNCRC. A complete draft of The Protection of Children (Inter-Country Removal and Retention) Bill, 2018 defining wrongful removal and retention with a complete mechanism for redressal was given in a two-volume report to the Government of India.
What has happened to these recommendations?
Unfortunately, these reports are gathering dust in government archives, and impasse over the issue has resulted in ugly custody disputes. Against this backdrop, in 2017, in Vivek Singh v. Romani Singh, J. Sikri of the Supreme Court highlighted the concept of Parental Alienation Syndrome, which refers to the unjustified disdain of a child towards his or her parents. It highlighted its "psychological destructive effects". Sadly, alienated children do not even want to speak to or see the parent whose custody they are not under. The court 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.” Regrettably, a prolonged separation divides and splits families.
What is the way forward?
Despite the idea of joint parenting growing in India, the laws remain unchanged. Courts bound to HMGA/ GWA have no other option. As a result, it is children who suffer in silence and perpetual grief. During the pandemic, there have been many cases of custodial parents taking advantage of the laws and denying visitation rights to non-custodial parents. This affects the child in unimaginable ways. Family courts offer little aid in such cases. Therefore, general guidelines or practice directions by the Supreme Court are the need of the hour. Shared or joint parenting with equal rights is a viable, practical, balanced solution for the child’s optimal growth. Family Courts are equipped under the Family Courts Act, 1984 to devise their own procedure, independent of the technicalities of law. They can formulate out-of-box methods and insist that children be shared by the father and mother. For a child to be caught in a conventional single parent custody trap is archaic and destructive to the child. It ruins the child's life and also causes misery to the parent, especially to the one who does not have custody.