Child's Custody Has To Be Shared By Both Parents And Grandparents, Follow 257th Law Commission Report: Uttarakhand High Court To Family Courts

The Uttarakhand High Court has directed the Family Courts to mandatorily follow the recommendations made by the Law Commission in its 257^th Report with regard to reforms in guardianship and custody laws, in child custody matters.

While passing directions, the Division Bench of Chief Justice Ritu Bahri and Justice Rakesh Thapliyal observed:

“This Court is of the view that at this stage, this direction is necessary to be given that the child's custody has to be shared by both the parents as well as by the grand-parents so that his emotional growth is not affected. The child has to bear many peer pressure when he grows up.”

The Court was hearing a Public Interest Litigation (PIL) filed by Advocate Shruti Joshi for addressing the issue of mental agony faced by children during matrimonial proceedings. The Court took into account a letter issued by the Ministry of Law & Justice, Government of India which contains some proposal relating to reformation in the counselling process in Family Courts.

Besides the above proposal, the Bench noted, the Law Commission headed by Justice AP Shah has recommended that the Court should have the power to obtain an 'independent psychological evaluation' of the child and to require professional assistance therefor to understand the child psychology.

The Court further noted that the Law Commission has also recommended certain amendments to the Hindu Minority and Guardianship Act, 1956 in this regard.

The Court directed that all the recommendations made by the Law Commission should be made mandatory followed by the Family Courts and the letter issued by the Ministry of Law & Justice should also be followed for appointment of counsellors, who are child psychologist or general counsellors, so that their reports remain scientific and can be taken as evidence for granting custody of children.

The Court also emphasized on the importance of shared custody of the child by both the parents as well as by the grand-parents and mutual agreement on the division of responsibilities of the child's upbringing through agreements in the parenting plan, rather than waiting for Court's intervention.

“As nine years have gone by and the amendment has not been carried out which may take more time, the responsibility of the next generation who has to get marry and their parents towards the child who was born should be crystallized and should be followed with emotional care and without any ego,” the Court added.

Though the Court was not inclined to a writ of mandamus for bringing in amendments but it made clear that these guidelines have to be followed while dealing with the matrimonial disputes, custody cases dealt by the Family Courts and during mediation.

“In the present case, since Uttarakhand is a hilly State, steps have already been taken for effective mediation and counselling can be done through WhatsApp and other electronic mode so that parties have not to travel from faraway places,” it added.

Case Title: Shruti Joshi v. State of Uttarakhand & Ors.

Citation: 2024 LiveLaw (Utt) 3

Case No: Writ Petition (PIL) No. 28 of 2024

Date of Order: March 6, 2024

Counsel for the Petitioner: Petitioner In Person

Counsel for the Respondents: Mr. S.N. Babulkar, Advocate General with Mr. Rajeev Singh Bisht, Standing Counsel for the State and Mr. V.K. Kaparuwan, Standing Counsel for Union of India

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