NEW DELHI: The Law Commission on Friday suggested that India too should adopt the concept of joint custody of children like the one that is prevalent in Western countries and pitched for the removal of superiority of one parent over the other, in case of a divorce, saying that Indian custody laws must change with the times.
The Commission’s recommendations on custody laws assume significance as in India the idea of shared parenting is still new to custody jurisprudence.
“Neither the father nor the mother of a minor can, as of right, claim to be appointed by the court as the guardian unless such an appointment is for the welfare of the minor,” the Commission’s report submitted to the Law Ministry stated on Friday. It said, wherever possible, courts should now grant joint custody of minors.
Several countries have adopted shared parentage, in contrast to sole custody arrangement to settle child custody disputes after divorce. Recommending changes to the Hindu Minority and Guardianship Act and the Guardians and Wards Act, the Commission said even after the Supreme Court 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. “This is required to be changed to fulfil the principles of equality enshrined in Article 14 of the Constitution,” the law panel said. The Commission said the amendments are necessary, in order, to bring these laws in tune with modern social considerations.
Major amendments are recommended to the Guardians and Wards Act, 1890, by introducing a new chapter on custody and visitation arrangements.
It said amendments to the Guardians and Wards Act, 1890 would be relevant for all custody proceedings, besides any personal laws that may apply.
The two draft Bills proposed by the panel to amend the existing laws also deal with the removal of preference for the father as the natural guardian under Hindu law. It says that both parents be granted equal legal status with respect to guardianship and custody.