JOIN USThe Law Commission on Friday recommended removal of superiority of one parent over the other in case of granting custody of a child of a divorced couple.
While favouring joint custody, the panel asked the government to bring in changes in custody laws, particularly in the Hindu Minority and Guardianship Act and the Guardians and Wards Act.
“Courts here tend to grant custody of a child to either one parent or another, presuming that it is for the welfare of the child. Joint custody arrangements, where both parents have custody of the child, are rarely considered,” the panel headed by Justice M B Shah said.
“The worst affected in proceedings of divorce and family breakdowns are the children. Maintaining the central importance of the welfare of the child in proceedings of custody will help ensure that the child’s future is safe and protected, regardless of changing familial circumstances,” it added.
The commission noted that even after the Supreme Court’s judgment in Gita Hariharan vs Reserve Bank of India case, the mother can become a natural guardian during the lifetime of the father only in exceptional circumstances.
In its 257th report to the law minister, the panel recommended major amendments to the Guardians and Wards Act, 1890, by introducing a new chapter on custody and visitation arrangements.
The commission felt that the law will be relevant for all custody proceedings, besides any personal laws that may apply.
Shared parenting system is accepted in countries like the US, UK, Australia, South Africa and the Netherlands.
The panel said that shared parenting should be tried in India under the supervision of a family court, which would help divorcing or divorced parents to prepare a “parenting plan”, clearly defining the role and responsibility of each of the parents.
While issuing a custody order of a child of 14 years and above, the commission said, a court must take into consideration the wishes of the child since the child can be considered old enough to form an intelligent preference. This practice should also be followed where such a minor has been left or removed from the custody of his or her guardian.
A child’s grandparent can also apply to the court for a grand-parenting time order under the amended provisions. Under the current mechanism, the custody of a minor is normally granted to the mother. But the court also takes into consideration welfare of the child, besides other factors like financial condition of the parent, before deciding.
NGO CRISP, which is spearheading a campaign for shared parenting in the country, welcomed the Law Commission’s report saying this would go a long way in making senior citizens, especially the paternal grandparents, to bond with their grandchildren.
DH News Service