Laws must allow joint custody

"Bring outdated laws in sync with changing social norms."

The government must implement the Law Commission’s recommendation favouring joint custody of children in divorce cases. This will require amendment of two existing laws, the Guardians and Wards Act of 1890 and the Hindu Minority and Guardianship Act of 1956, which currently govern decisions on child custody. Under the existing laws, custody of a child is awarded to one parent, usually the mother, with the other parent being granted visitation rights at best. It does not provide for shared parenting in divorce situations. This means that children of divorced parents often lose out on the sustained care and attention of one parent. The Law Commission’s recommendation seeks to correct this by providing for joint custody. Besides seeking to act in the best interest of children, the suggested changes in the law will end gender bias in custody laws. It says that both, the mother and father, should be granted equal legal status with respect to guardianship and custody.

The recommendations are an important step in bringing outdated Indian laws on custody in sync with changing social situations. Divorce in urban India, while still less frequent than in western societies, is growing and it is necessary that laws on child custody, alimony, etc are amended to reflect changing gender equations, economic capacities and new pressures. In the past, it was widely believed that children of divorced parents are better off growing up with one parent as this would not subject them to the upheaval of shuttling between two homes. However, recent research indicates that children who lived with both of their separated parents suffer significantly fewer problems, including trouble with sleeping, difficulty in concentrating, loss of appetite, headaches, anxiety, etc than those who lived with one parent only. The law panel has drawn on such findings to propose amendment of laws to provide for joint custody of children.

The ball is now in the government’s court. Will it act on the Law Commission’s welcome counsel? On several social issues, the BJP-led NDA government has tended to take a regressive approach preferring to endorse outdated views, arguing that it is defending Indian culture and traditions. Worse, political parties and conservative sections of society have often taken the position that marriage is sacrosanct in India and this being the case, divorce doesn’t happen or shouldn’t be allowed to happen. This perception could prompt the Narendra Modi government to dismiss the Commission’s recommendations as irrelevant and the problem as a non-issue. This would be unfortunate as the panel’s suggestions merit implementation.