SC Issues Notice On Plea Challenging Provisions Allowing Exclusive Custody Of Child To One Of The Parents

A London based NRI woman has moved the Supreme Court  through a Public Interest Litigation (PIL), seeking re-visit of country's all personal laws with regard to the custody of child in matrimonial disputes.

The bench led by Chief Justice of India (CJI) Ranjan Gogoi on Friday issued notice to Centre and sought the government's response on the issue.

Solicitor General Tushar Mehta, appearing for Union of India, told the bench, also comprising justices AS Bobde and Abdul Nazeer, that the issue needs to be examined.

Advocate Kaleeswram Raj appeared for petitioner Y Sulochana Rani who hails from Andhra Pradesh.

The counsel submitted that due to the absence of shared parentage system in India, the fundamental rights of the children are violated.

The right of a child to love and to be loved is already recognised as a fundamental right and is to be protected.

When custody is entrusted to one parent, the well-being of the child and the right to an enhanced quality of life during crucial years of personal development will be severely affected.

According to the petition, the legal provisions which currently exist as per various personal laws are in the nature of entrusting the custody of children exclusively to one of the parents in case of separation.

The statutes create a strong presumption in favour of exclusive custody. This presumption severely affects the fundamental rights of the spouse who has been denied the custody rights and the fundamental rights of the child who will be deprived of care and love of both parents.

This scheme of statutes requires reformation.

The PlL pleads for a child centric approach based on the idea of shared parenting which unfortunately does not find a place in the family laws of the country.

The 257th report by the Law Commission of India also suggested amendments to the current statutory provisions so as to include the provision for shared custody / joint custody.

"The denial of custody to one spouse as against the other violates the fundamental right of parenting to the said spouse, which is part of right to life guaranteed under Article 21 of the Constitution of India. Currently, custody is given to one of the spouses only and the other spouse is given visitorial rights. There is no rational basis in going for such an option violating the fundamental rights of the other spouse and the child. This is done without taking into account the best interest of the child, which the concept of shared parentage will satisfactorily fulfil", the petition states.

The petition challenges the provisions of Hindu Minorities and Guardianship Act, Shariat Act, Guardians and Wards Act, etc which allow for custody by one of the parents only.

The petitioner seeks a declaration that in matrimonial disputes, denial of joint custody except in cases where it is not in the best interest of the child, would amount to violation of fundamental rights of the aggrieved parent and the child under Articles 14, 19 and 21 of the Constitution;