Shared Parenting Concept

In 2019, the Supreme Court of India ruled that a child has the right to affection from both of his parents. In the event of a marriage break down of parents, seeking custody of a child becomes a very traumatic event for the children. The concept of shared parenting could help the child however due to the archaic laws; this is not an option in India. Shared parenting is a concept wherein children are brought up with the love and guidance of both the parents even after a separation.

India is a signatory to the United Nations Convention on the Rights of the Child and 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.

Shared Parenting and Equal Rights

About

  • The “best interests of the child” also means “the basis for any decision that is taken regarding the child to ensure fulfilment of his identity, basic rights and needs, social well-being and physical, emotional and intellectual development.”
  • The Justice Bindal Committee in its report submitted to the Government of India in 2018 also stated that “best interests of the child” are of paramount importance in matters relating to custody of the child in view of the UNCRC.

Laws and the Custody of Children in India

Hindu Minority and Guardianship Act (HMGA) of 1956

  • It states that the father and mother shall be the natural guardian of a Hindu minor boy or unmarried girl provided that the custody of a minor (not completed five years) shall ordinarily be with the mother.
  • For deciding custody rights or declaring court-appointed guardians, the HMGA doesn՚t contain any independent, legal, or procedural mechanism.

Guardian and Wards Act of 1890 (GWA)

  • Deals with the appointment of a person as a guardian to a child both in term of respect of the child and property.
  • Under GWA, Child custody, guardianship and visitation issues are determined in case a natural parent wants to be declared as an exclusive guardian to his⟋her own child.
  • The guardianship and custody could be vested with one parent with visitation rights to the other parent upon disputes between parents in a petition.
  • The welfare of the minor or “best interests of the child” shall be of utmost importance.

Supreme Court Judgments

  • The Supreme Court of India in 2017 in Vivek Singh v. Romani Singh highlighted the concept of Parental Alienation Syndrome.
  • The Supreme Court of India in 2019 in Lahari Sakhamuri v. Sobhan Kodali held that the “best interests of the child” is wide in its connotation.
  • The Supreme Court of India in 2022 in Vasudha Sethi v. Kiran V. Bhaskar held that welfare of the child not the individual or personal legal right of the parents is of paramount concern in a custody battle.

Law Commission of India

  • Joint custody and shared parenting were recommended by the Law Commission of India Report 2015 on Reforms in Guardianship and Custody Laws in India.
  • A draft Bill for protecting the “best interests of the child” relating to custody as per the UNCRC was recommended by Report 263 of the Law Commission of India, titled The Protection of Children (Inter-Country Removal and Attention) Bill, 2016.

Examrace Team at Jun 28, 2022