The concept of guardianship and custody is challenging to our judiciary system for many years and has destroyed the lives of children at a tender age. The trend of guardianship and custody shows the archaic and patriarchal mindset of India. The dilemma a child bears while belonging, residing and confiding only in one parent affects the growth and welfare of the child. In India the following laws deal with the provisions for custody and guardianship:
- Guardians and Wards Act,1890
- Hindu Minority and Guardianship Act, 1956
- Hindu Marriage Act, 1955
Indian laws recognize the concept of Joint Custody for the welfare of a child. The new concept of joint custody is evolving, which gives both parents equal physical and legal custody. Though there are no legal provisions for sharing parenting, the judiciary has taken a step to bring the concept of joint custody. The children of separated parents can get the benefit of having both parents as active members in their life.
In KM Vinayavs B. Srinivas, a judgement was passed giving the custody to both parents for sustainable growth of the twelve-year boy. The court directed the custody to father for six months, i.e. from 1st January to 30th June and mother for a further six months, i.e. from 1st July to 31st December. Right of visitation was given to both parents; also, the cost of education was divided equally between both parents.
Another order by the Bandra Family Court laid down a joint parenting plan for the custody of Minor. In this judgement, the Law Commission of Indis’s Report No. 257 states certain reforms in Guardianship and Custody Laws in India. The mentioned report acknowledges the need for joint custody to be introduced in law. It laid some suggestions related to the concept of joint custody.
- The report proposed to empower and fix a certain amount specifically for child support, which will be continued up to 18 years and can be extended until 25 years of the child’s age.
- It included the right of children to have access to grandparents.
Joint custody of a child is where both parents share physical custody of the child, equally or in proportion laid by the court for the welfare of a child. The parents will equally share the responsibility for the care and control of the child and have a joint authority to decide for the child.
There will be no limited visiting period to either of the parents who do not have custody of a child. The law panel has recommended listing the legal framework required to address how custody issues can be handled, what are the factors relevant for decision making, the process of dispute resolution between parents over a child, etc.
Factors to be considered for grant of Joint Custody are as follows:
- Preference of the child
- Access to check the records of the child
- Time of Grant- parenting
- Decision Making
- Parenting plan
The law panel report has reviewed all laws, regulations, provision, recommended legislative amendments related to the custody and guardianship of the child. The amendments are essential to bringing these laws in tune with modern social considerations.