Need for Joint Custody

Considering India is home to individuals from many walks of life, it has a variety of personal laws that deal with family and marital concerns. When the parents decide to divorce, a major dilemma emerges about the child’s custody. The notion of “child welfare” has been adopted by the courts as being of fundamental significance. The main flaw is that it’s notion hasn’t received much attention in situations of custody. In India the following acts deal with the provisions of custody;

Guardians and Wards Act, 1890,

 Hindu Minority and Guardianship Act, 1956 and

 Hindu Marriage Act, 1955.

When the Guardians and Wards Act of 1890 and the Hindu Minority and Guardianship Act of 1956 are compared, it is clear that the former prioritises the power of the parents as guardians over the welfare of the child. The Hindu Minority and Guardianship Act, on the other hand, prioritises the wellbeing of Hindu minors.

Section 26 of the Hindu Marriage Act empowers the court to make orders regarding the minor’s care, support, and education in accordance with the minor’s desires. Any such order might also be revoked or suspended by the court. Although Indian law does not allow for shared custody, the judiciary has taken measures to recognise it.

In the case of KM Vinaya (v) B Srinivas, a two-judge panel ruled that both parents should have custody of their 12-year-old son for his long-term development. A joint parenting plan was put down by the Bandra family court enabling the parties to lay out shared custody for the child in another historic decision.

The decision prompted the Law Commission to issue Report 257 on revisions to India’s guardianship and custody laws.

Amendment of section 6(a) to allow both parents to be natural guardians of the minor on an equal basis was one of the recommendations. Sections 17 and 19 of the Guardians and Wards Act are being amended to place a greater focus on the child’s wellbeing.

A new definition for joint custody was proposed: ā€¢ When both parents share physical custody of the child, which may be equally shared or in such proportion as the court determines for the child’s welfare. ā€¢ When both parents equally share joint responsibility for the child’s care and control, as well as joint authority to make decisions.

The requirement for shared custody has been recognised in a number of situations. The Guwahati High Court stated in Om Prakash Bahruka (v) Shakuntala Modi that just because a father loves his kid does not guarantee he would win custody. A better caretaker would be the mother who is financially stronger and has a decent reputation.

The court stated in Gaurav Nagpal (v) Sumedha Nagpal that children are not cattle or toys for their parents. The term “welfare” must be taken literally and in the broadest meaning possible.

As a result, granting shared custody in order to protect the child’s best interests can aid in the child’s holistic development. Joint custody fills up the gaps if one parent is lacking in a specific area that might benefit the child’s enrichment. Joint custody, it may be claimed, would be an excellent instrument for resolving the inconsistencies in custody laws.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign ā€œBalancing Lifeā€and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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