When parents decide to end their marriage, one of the most challenging and traumatic events for children is the dispute over custody rights. The Supreme Court recognized in 2019 that children have a right to affection from both parents. In this context, shared parenting emerges as a favourable yet unimplemented concept in India due to outdated laws. Shared parenting refers to a situation where children receive love and guidance from both parents post-separation.
‘Best Interests of the Child’: An Overview
India is a signatory to the United Nations Convention on the Rights of the Child (UNCRC), and has derived its definition of ‘best interests of the child’ from this convention, incorporating it into the Juvenile Justice (Care and Protection of Children) Act, 2015. The term refers to the primary consideration in any decision involving a child, aiming to fulfil the child’s basic needs and rights and ensuring their social, physical, emotional, and intellectual development.
Laws Governing Custody of Children in India
The Hindu Minority and Guardianship Act (HMGA) of 1956 states that the natural guardians of a Hindu minor are the mother and father, with children under five typically residing with the mother. However, the HMGA lacks a standalone legal or procedural process for determining custody rights or appointing guardians. Meanwhile, the Guardian and Wards Act of 1890 deals with assigning guardians to children and their property. Under this Act, petitions related to child custody, guardianship, and visitation rights are dealt with.
Supreme Court Rulings Relating to Child Custody
In a landmark 2017 ruling, the Supreme Court acknowledged the concept of Parental Alienation Syndrome, referring to a child’s unwarranted disdain towards one or both parents. The court underlined the devastating psychological impact of the syndrome. In 2019, the court recognized that the ‘best interests of the child’ should not be the exclusive right of mothers to love and care for infants or young children. In 2022, the Supreme Court stressed that the child’s welfare takes precedence over the legal rights of the parents in a custody battle.
Shared Parenting: A Legal Perspective
The Law Commission of India’s 2015 report on reforms in guardianship and custodial laws advocated for joint custody and shared parenting. The Commission disagreed with solitary child custody, proposing amendments to the HMGA and the Guardian and Wards Act. Report 263 titled “The Protection of Children (Inter-Country Removal and Attention) Bill, 2016” also recommended prioritizing children’s interests in custody-related matters as per the UNCRC.
The Way Forward
A child-oriented human rights approach has evolved over time, emphasizing the importance of children’s well-being for public good, considering them as the nation’s future. Hence, shared or joint parenting with equal rights could be a feasible, practical, and balanced solution for children’s optimal growth.