CONCEPT OF JOINT CUSTODY OF MINORS IN INDIA

admin | November 17, 2016 | Family Laws | No Comments

THIS ARTICLE WAS WRITTEN BY BRINDA. G. LASHKARI A STUDENT OF PRAVIN GANDHI COLLEGE OF LAW.

The concept of guardianship and custody has haunted not only our judiciary system since years but has destroyed lives of children at a very tender age . The trend followed of custody and guardianship in India shows the archaic and patriarchal mindset of the country. The dilemma a child faces while belonging, residing and confiding only in one parent affects the child’s welfare and overall growth. The concept of the ‘the welfare of the child” has been taken up as of paramount importance by the courts . it reflects in many judgements of several high courts and the supreme court . the only lacuna of this implementation is that the concept that“the welfare of the child is of paramount importance” in cases of custody has not been legislatively acknowledged.

In India there are the following Acts that deal with in the provisions of custody and guardianship-

Guardians and Wards Act,1890
Hindu Minority and Guardianship Act, 1956
Hindu Marriage Act ,1955

Section 7 of the Guardian and Wards Act empowers the court to appoint a guardian keeping in mind the welfare of the child. Section 17 highlights the factors o which the court empowers guardians Section 17(1) empowers the court to appoint the guardian on the personal law of the minor .Section 17(2) clarifies that in deciding the welfare of the minor the age,sex,closeness of person to minor ,religion,character and capacity of the person should be considered by the court. Section 17(3) permits the court to take the opinion of the minor if he is old enough to make an intelligent opinion. Under Section 25(1) the court can issue an order to the minor to return to the custody of the guardian if the minor has left or was removed from the custody of the guardian , only if it is in the welfare of the ward.

Whereas the Hindu Minority and Guardianship Act, 1956 applies to only Hindus in India as regards to the custody and guardianship of minors. Section 6 of the Act states that the father is a natural guardian and after him , it is the mother. Section 6(a) states that –

(1)In case of a minor boy or unmarried minor girl, the natural guardian is the father , and “after” him the mother ; and

(2)The custody of a minor who has not completed the age of five years shall “ordinarily” be with the mother .

Section 13 puts emphasis on the welfare of the minor by clarifying that in the process of deciding on a guardian “the welfare of the minor “ shall be of “paramount importance” and no guardian can be decided on without looking into the welfare of the minor.

On comparison of both the Acts it is observed that the Guardian and Wards Act the authority of the parents as guadians is considered before the welfare of the minor whereas under the Hindu Minority and Guardianship Act priority is given to the welfare of the Hindu Minor than the fact of the father being the natural guardian .

Under the Hindu Marrige Act , Section 26 authorises the court to pass interim orders with respect to custody , maintenance and education of minor children in consonance to the wishes of the minor. The court can also revoke and suspend any such order passed.

JOINT CUSTODY IN INDIA

Indian laws do not provide for joint custody as seen from the above given references. But the judiciary has been the trailblazer and taken a step towards recognising the concept of joint custody.

In KM Vinaya v. B Srinivas[1] a two judge bench passed a judgement giving both the parents custody for sustainable growth of the twelve year old boy . in the judgement the court directed the minor to be with the father from the 1^st of January to 30^th of june with the father and from 1^st of july to 31^st of December with his mother. Both the parents were given visitation rights on weekends when the child was with the other parent. The expenditure of the child with the cost of education was to be split equally .

Another landmark judgement given by the Bandra Family court ,laid down a joint parenting plan for the parties to plan out a joint custody on the minor . In the above given judgement[2] J.Palsingankar laid emphasis on the concept of joint custody and stated the following –

The child will remain in the custody of the petitioner from 1^st july to the 31^st of December and in the custody of the respondent from 1^st January to the 31^st of june .
The long vacations and visiting on weekends will be equally divided among the parties.
The expenses of the child is to be equally divided among the parties.
The parties have to make a joint account so as to make payments for the child.
A penalty of rupees 1000 is imposed if any order is flouted.

The judgement also introduced the The Law Commission of India’s Report No. 257 on “Reforms in Guardianship and Custody Laws in India”. This report recommended many changes to the Guardian and wards Act as well as the Hindu Minority and Guardianship Act . the report also acknowledges the need of joint custody to be introduced in our laws.

Here are few of the suggestions made in the report –

Section 6(a)should be amended so as to allow both the father and mother to be natural guardians of the minor equally
By amending section 17 and 19 of the Guardian and wards Act , more emphasis must be placed on the “welfare of the child” and that it should be of paramount importance.
A new definition of “joint custody” in the Guardians and Ward Act Is to be introduced defined as under –

19C. Definitions

For the purpose of this Chapter:– (a) “Joint custody” is where both the parents:-

share physical custody of the child, which may be equally shared, or in such proportion as the court may determine for the welfare of the child; and
ii) equally share the joint responsibility for the care and control of the child and joint authority to take decisions concerning the child; and

(b) “Sole custody” is where one parent retains physical custody and responsibility for the care and control of the child, subject to the power of the court to grant visitation rights to the other parent.

NEED FOR JOINT CUSTODY

Cases in which father can be a wrongful guardian

According to the Hindu Minority and Guardianship Act a father is a natural guardian of a minor child. This can prove fatal If the father is not capable enough to take care of a child and the mother is much more capable of it.

In Om Prakash Bahruka v. Shakuntala Modi[3] the Gauhati High Court clarified that the only fact that the father loves the child and is not unfit does not prove that he would be given the custody looking at the welfare of the child as against the mother who is much more financially stronger and also possesses a good character. She can give the child better education and health resources.

Not only under Hindu law but also under Muslim Law the concept of Hizanat is for the welfare of the minors where the mother has the right to custody of her child . In a case the court established that where the father who was busy and having grandparents who were handicapped and stepmother having a child of her own, the child would be better in the custody of the mother.[4]

Court as the Parens Patriae of all Minors

As soon as a child comes to court , the court takes up the roll of a natural parent who is responsible for the welfare of the child. The court delegates this function by appointing a capable guardian . the court automatically becomes responsible for the “welfare of the child”.

Welfare of the child of paramount importance.

The old maxim , father is the natural guardian , has given away to the newer maim , best interest of the child is paramount. This is the primary pillar on which the issue of custody is to be decided. [5] .

In Gaurav Nagpal v Sumedha Nagpal.[6] The court clarified that children are not merely chattel , nor are they toys for their parents . the term welfare must be construed literally and must be interpreted in the widest sense. The Court is bound to take into consideration the provisions of the statutes but it cannot forget to implement the parens patriae principal and exercise its powers.

Reasons given by the law commission report

Following is extracted from the 133^rd report of the Law Commission as they state the need of Joint Custody –

3.3.1.First, with rapid social and economic change, conjugal and familial relationships are becoming more complex and so are the conditions of their dissolution. As these social changes that affect family life escalate, we need to update the laws governing the family relationships, during and after the marriage. At present, our legal framework for custody is based on the assumption that custody can be vested with either one of the contesting parties and suitability is determined in a comparative manner. But ,just as the basis for dissolving marriage has shifted over time, from fault-based divorce to mutual consent divorce, we need to think about custody differently and provide for a boarder framework within which divorcing parents and children can decide what custodial arrangement works best for them.

3.3.2 Second, the judicial attitude towards custody matters has evolved considerably. As legal scholar and activist, Flavia Agnes notes, In modern day custody battles, neither the father, as the traditional natural guardian, nor the mother, as the biologically equipped parent to care for the child of tender age, are routinely awarded custody. The principle, best interest of the child takes into consideration the existing living arrangements and home environment of the child. … Each case will be decided on its own merit, taking into account the overall social, educational and emotional needs, of the child.

3.3.3 But despite this development in judicial attitude, we have ignored the idea that under certain favourable circumstances, the best interest of the child could also result from simultaneous association with both the parents. Since there is no inherent contradiction between pursuing the best interest of the child and the concept of shared custody, the law needs to provide for this option, provided certain basic conditions are met.

3.3.4 Third, as already mentioned, a number of institutions, including the judiciary, have already started engaging with the idea of shared custody. We have referred to some of these recent developments above. But currently this idea is being put into practice in a haphazard manner. There are several components to the idea of shared custody, such as clear determinants of the best interest of the child standard, the role of judges and mediators, parenting plans and so on. These must be laid down in the law, in order for shared custody to be a viable option that facilitates divorcing parents to mutually agree on the preferred custodial arrangement, without compromising on the welfare of the child.

3.3.5 In the legal systems of several Western countries that we have reviewed in this chapter, there is a presumption in favor of joint custody, and sole custody is awarded only in exceptional circumstances. We have already referred to the inequalities in parental roles, responsibilities and expectations that exists in our country. Therefore, we are not in favor of the law placing a presumption in favour of joint custody. As opposed to the case of guardianship, where we have recommended shared and equal guardianship for both parents, in this case, we are of the view that joint custody must be provided as an option that a decision-maker can award, if the decision-maker is convinced that it shall further the welfare of the child.[7]

[1] MFA No. 1729/ 2011, Karnataka High Court, Judgment dated Sept. 13, 2013.

[2] INT. APPLN. NO.60 OF 2015, Family Court of Mumbai dated May 27,2015.

[3] AIR 1993 Gau.38

[4] Bavi v. Shah Nawaz Khan PLD (WP) Lah 509.

[5] Flavia Agnes, Family Law II: Marriage, Divorce and Matrimonial Litigation (2011), Oxford University Press: New Delhi, p 254.

[6] I (2009) DMC 523 SC

[7] http://lawcommissionofindia.nic.in/reports/Report%20No.257%20Custody%20Laws.pdf