A Relook At Custodial Legal Framework: An Argument For Shared Custody Between Parents

These observations by the Bombay High Court sum up the natural bond which a child shares with both his mother and father. The institution of marriage in India is going through a change with the evolving socio-cultural churning in the society which is evident from the rising divorce rates. In families with children, when a marriage hits rough weather, unfortunately the children are also drawn into the legal process - particularly on the issue of custody. This article explores how the legal concept of “the best interest of the child” as understood in the current law governing the Hindus as well as two secular laws - the Guardianship and Wards Act, 1890 and Juvenile Justice (Care and Protection of Children) Rules, 2007 has been used by Indian Courts to determine the question of a child's custody.

Legal Framework governing guardianship and custody

Guardians and Wards Act, 1890

The Guardianship and Wards Act is a secular law which enables a Court to appoint a guardian for a minor if it is satisfied that it is necessary for the welfare of the minor. Section 17 of this Act lists the following factors to be considered by the Court for determining the welfare of the minor - age, sex and religion of the minor; the character and capacity of the proposed guardian and how closely related the proposed guardian is to the minor; the wishes, if any, of the deceased parents; and any existing or previous relation of the proposed guardian with the person or property of the minor.Section 17(3) states that if the minor is old enough to form an intelligent opinion, the court may consider their preference. However, Section 19 prohibits appointment of a guardian of a minor whose parents are alive and who in the opinion of the court is not unfit to be a guardian.

Hindu Family Laws

Section 6 of the Hindu Minority and Guardianship Act, 1956 declares the father to be the natural guardian of a minor, and only after him, it is the mother. However, a minor of less than 5 years of age shall 'ordinarily' be with the mother. Section 13 clearly provides for the welfare of the minor to be the pivotal factor in deciding the aspect of guardianship of the child. In addition under Section 26 of the Hindu Marriage Act, 1955 the Court can pass interim orders with respect to custody, maintenance and education of minor children, in consonance with their wishes.

The Juvenile Justice (Care and Protection of Children) Rules, 2007

The Juvenile Justice (Care and Protection of Children) Rules, 2007 identifies the best interest of the child to mean a decision taken to ensure the physical, emotional, intellectual, social and moral development of a juvenile or child.

There is an overwhelming consensus in the opinions of our courts that the best interest or welfare of the child is the main factor to be considered in custody litigation irrespective of any position taken by the parents. The Supreme Court has said that the welfare of a child is not to be measured merely by money or physical comfort, but the word welfare must be taken in its widest sense that the tie of affection cannot be disregarded.^[2]

Should Joint Custody be the norm?

Custody battles are an inevitable fallout of a broken marriage. Personal bitterness between couples spills into the custody issues as well in many cases and children become the medium through which this acrimony is played out. However, a bad spouse cannot automatically amount to a bad parent, as much as warring spouses may like to contend.

Unfortunately, the current laws only grant custody to one parent and the other parent is granted visitation rights. The idea of joint custody between the two parents is not an arrangement that is explored as the first option. It is here that we must reassess how we understand what the best interest of a child is while determining how custodial arrangements for a child are to be made.

A child ordinarily needs love, affection and companionship from both parents for a healthy and wholesome upbringing. It is a natural consequence of the current custodial rights framework that the non-custodial parent is not able to develop their relationship with the child as they would wish to and the child is also robbed of the kind of care and attention they would ordinarily get from the parent. The Courts, by applying the law stricto sensu, inherently put both the non-custodial parent and the child in a disadvantageous position. This gets exacerbated by the notoriously long delays in disposing off family disputes by our courts. An interim order granting custody to one parent effectively means that a child is relegated to a zone of broken or partial parenting till the court makes its final determination. This naturally creates distance and alienation from the non-custodial parent. It is also not uncommon for a custodial parent to exercise influence over the child and erode the child's relationship with the non-custodial parent. The child becomes the rope in the viciously fought tug of war between the parents and the idea of “best interest of the child” is lost.

This situation cannot by any stretch of the imagination be considered to be in the best interest of the child. It is posited that unless it is demonstrable that joint custody would be inherently harmful to a child on account of evident parental shortcomings on part of one of the parents, joint custody should be the norm.

In addition to the inherent disadvantage of sole custody arrangement, there is no statutory framework to regulate visitation rights of the non-custodial parent. Visitation rights are usually granted on a monthly/weekly basis and such visitations are conducted at designated places. Often, these designated places are within the court premises and are carried out within the presence of the custodial parent. In the absence of any compelling reasons to justify such arrangements, it is baffling how this artificial and sterile environment can generally be considered to be in the best interest of the child.

Who is looking out for the fathers?

At this stage, it would be important to state that custody, particularly of a young child, is overwhelmingly given as a default position to the mother and the father is usually granted limited and stifling visitation rights.

The recent suicide of Atul Subhash created a lot of uproar about the abuse of certain provisions of law created for protection of woman and how he could not meet his child. This alienation and trauma may well have been the reason why he succumbed to this psychological pressure.

In some cases, despite orders by the court for granting visitation rights , the mothers have been found to be flouting orders and denying access to the child. However, even in such cases Courts have been reluctant to punish the errant party as the same would be “against the interest of the child”^[3].

Needed Reforms

At present, for all the talk of determining the best interest of the child, our legal framework for custody is adversarial in nature. This has to change. Even our divorce laws have liberalised over the past decades as mutual divorce became a recognizable ground for divorce. It is therefore necessary that our custody rights framework should be remodelled to make the shared/joint custody as the default arrangement unless there exist compelling reasons to hold otherwise. There is absolutely no inherent contradiction between pursuing the best interest of the child and the concept of shared custody, the law needs to provide for this option as the default option.

In maintenance cases, the Supreme Court mandated filing of income affidavits in the case of Rajneesh vs Neha^[4] so that maintenance can be decided in a time bound manner. A similar arrangement can also be adopted where parties before a family court are directed to file joint parenting plans with the option of raising contention regarding the unsuitability of shared/joint custody. It is also suggested that in custody proceedings, a lawyer may also be independently appointed for the child as has been done by the Kerala High Court^[5].

An ideal example of joint custody can be seen in a 2011 judgment of the Karnataka High Court, which used the concept to resolve a custody dispute involving a twelve-year old boy^[6] wherein it was ruled that both parents are entitled to get custody “for the sustainable growth of the minor child.”

It is also imperative that the suitable legislative measures are undertaken to streamline the aspect of visitation rights wherein joint custody cannot be worked out. The aspect of visitation rights should not be left to the subjective satisfaction of the concerned family court judge and a more rule based system needs to be statutorily evolved which serves the best interest of the child.

Equality between parents is a cherished goal from the constitutional perspective as well as the best interest of the child. The law in its text and practice should not have preferences between parents based on gender stereotypes. It is very important that the preferential treatment of the father in the HMGA is removed and both the mother and the father are given equal status as natural guardians as the law currently identifies only the father to be the natural guardian.

The author is an Advocate on Record, at Supreme Court of India. Views are personal.