Syllabus Section: Governance (GS Paper III)
Importance: UPSC Prelims and UPSC Mains
Why in News?
The concept of shared parenting is a reality in countries such as the U.S., the U.K. and Australia, it is not an option in India.
Here, antique laws rule the roost
What is Shared Parenting?
Shared parenting is when children are brought up with the love and guidance of both parents following a separation.
What does the law say about the shared parenting?
Two laws determine the custody of children in India
1) The Hindu Minority and Guardianship Act (HMGA) of 1956
It states that the natural guardian of a Hindu minor boy or unmarried girl shall be the father and mother, provided that custody of a minor who has not completed five years of age shall ordinarily be with the mother.
The HMGA does not contain any independent, legal or procedural mechanism for deciding custody rights or declaring court appointed guardians.
2) The Guardian and Wards Act of 1890 (GWA)
This deals with the appointment of a person as a ‘guardian’ to a child, both with respect to the child and property.
Child custody, guardianship and visitation issues between parents are determined under the GWA, if a natural parent wants to be declared as an exclusive guardian to his/her own child.
Upon disputes between parents in a petition under the GWA, read with the HMGA, guardianship and custody can be vested with one parent with visitation rights to the other parent.
Here the welfare of the minor or “best interests of the child” shall be of paramount consideration.
Meaning of “best interests of the child”:
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.
The “best interests of the child” means “the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social wellbeing and physical, emotional and intellectual development” and is paramount in any custody battle.
India is a signatory to the United Nations Convention on the Rights of the Child (UNCRC).
Lahari Sakhamuri v. Sobhan Kodali Case (2019):
The SC said that the “best interests of the child” is wide in its connotation and “cannot remain the love and care of the primary care, i.e., the mother in case of an infant or the child who is only a few years old.”
This is childcentric approach
Vasudha Sethi v. Kiran V. Bhaska Case (2022):
A child’s welfare, not the individual or personal legal right of the parents, is of paramount concern in a custody battle.
Welfare of the child must get precedence over the parents’ rights.
Recommendations been made for joint parenting:
The Law Commission of India Report in 2015, on Reforms in Guardianship and Custody Laws in India, recommended joint custody and shared parenting
It disagreed with the idea of singular child custody with one parent.
It made exhaustive recommendations for amendments in the HMGA and GWA for joint custody and for guidelines for such custody, child support, and visitation arrangements
Report 263 of the Law Commission of India, titled The Protection of Children (InterCountry Removal and Attention) Bill, 2016, recommended a draft Bill for protecting the “best interests of the child” relating to custody as per the UNCRC
Justice Bindal Committee, submitted to the Government in 2018, also said that “best interests of the child” are of paramount importance in matters relating to child custody in view of the UNCRC.
A complete draft of The Protection of Children (InterCountry Removal and Retention) Bill, defining wrongful removal and retention, with a complete mechanism for redress was given in a twovolume report to the Government of India.
A child-centric human rights jurisprudence that has evolved over a period of time is founded on the principle that public good demands proper growth of the child, who is the future of the nation.
Therefore, shared or joint parenting with equal rights can be a viable, practical, balanced solution for the child’s optimal growth.