The Law Commission of India, in its 257th Report titled “Reforms in Guardianship and Custody Laws in India” has recommended amendment of the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956, for providing for equal legal status of both parents with respect to guardianship and custody of children, keeping in view the “welfare of the child” as the paramount consideration in adjudicating custody and guardianship matters. This Report has been submitted by Justice Ajit Prakash Shah, Chairman of the Law commission, to Shri D.V. Sadananda Gowda, Minister for Law and Justice in Government of India on 22nd May, 2015.
In this Report, the Law Commission has reviewed the current laws dealing with custody and guardianship, namely, the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956, and has recommended certain legislative amendments to achieve the following objectives:
- Strengthen the welfare principle in the Guardians and Wards Act, 1890 and emphasize its relevance in each aspect of guardianship and custody related decision-making
- Provide for equal legal status of both parents with respect to guardianship and custody
- Provide detailed guidelines to help decision-makers assess what custodial and guardianship arrangement serves the welfare of the child in specific situations.
- Provide for the option of awarding joint custody to both parents, in certain circumstances conducive to the welfare of the child.
The Law commission has recommended that the “welfare of the child” should be the paramount consideration in adjudicating custody and guardianship matters of children and has recommended adopting a shared parenting system in India. The commission has referred to the comparable legal standard found in international human rights law, quoting from the United Nations Convention on the Rights of the Child, “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” The commission has also noted that the said Convention directs the State Parties to ensure that “both parents have common responsibilities for the upbringing and development of the child.”
The Law commission has prepared the draft Amendment Bills to amend the Hindu Minority and Guardianship Act, 1956, and the Guardians and Wards Act, 1890.
Amendments to the Hindu Minority and Guardians Act, 1956, recommended by the Law Commission include amendments in Section 6(a) and an Section 7 of the Act. Section 6(a) lists the natural guardians of a Hindu minor, in respect of the minor’s person and property (excluding his or her undivided interest in joint family property). In the case of a boy or an unmarried girl, this section clearly states that the natural guardian of a Hindu minor is the father, and after him the mother. The commission says that this is required to be changed to fulfil the principles of equality enshrined in Article 14 of the Constitution, by recommending that this superiority of one parent over the other should be removed, and that both the mother and the father should be regarded, simultaneously, as the natural guardians of a minor.
In Section 7 of the Hindu Minority and Guardians Act, 1956, the commission has recommended amendments to ensure that the natural guardians of an adopted child should include both the adoptive parents, in keeping with its recommendations to Section 6(a) provided above. The Commission has recommended that Section 7 be amended to refer to the natural guardianship of an adopted child who is a minor, which will pass, upon adoption, to the adoptive mother and father.
For the Guardians and Wards Act, 1890, the Law Commission has recommended that in Section 17, in the appointment or declaration of a guardian, the welfare of the minor must be paramount, and everything else must be secondary to this consideration. In determining welfare, however, the court may give due regard to the laws to which the minor may be subject. Suitable changes have also been recommended in Section 19 and Section 25 of this Act. Moreover, the Law commission has recommended insertion of a new Chapter IIA in this Act, which deals with custody, child support and visitation issues, covering a range of topics. The commission has stated the following objectives of this new chapter:
“Children are the most vulnerable persons in a matrimonial dispute, and the trauma that they face during and after the legal determination of such disputes is immeasurably harsh. Children often become pawns in such matters, and are used by their parents for their own purposes, to strike bargains that rarely take into consideration the emotional, social and mental upheavals that the children themselves may be facing. The Commission believes this imbalanced situation can be addressed in some measure through legislative changes that will place a duty upon the court to uphold the child’s welfare in each and every circumstance, regardless of the individual interests of the parties involved.
These objectives, therefore, embody the fundamental and most important recommendation of the Law Commission, regarding the welfare of the child being of utmost consideration. A court is bound to bear in mind these objectives in making an order under this chapter, and will therefore be required to comprehensively assess the consequences of any order it makes in light of these objectives.
The objectives require that the welfare of a child is met by ensuring various other aspects, such as recognising the changing emotional, intellectual and physical needs of the child; maintaining a healthy and continuing relationship with both parents, society and siblings; recognising the prior and future ability and commitment of the parents to participate in the growth of the child; protecting the child from violence of any kind, and so on.”
As a part of this new chapter, the commission has also recommended that the before engaging directly with the court system, parties to a custody matter must ordinarily consider mediation before the proceedings actually begin, or when the court so orders. The court will usually refer the parents to the court-annexed mediation centre. However, in case there is no such centre, the court may appoint an individual mediator. This recommendation has been made in view of the fact that many disputes arising out of divorce proceedings (child custody, child support, etc.) could be solved through mediation and that this would promote better outcomes for both parents and children, as well as reduce the strain on the overburdened court system.
The detailed Report No. 257 of the Law Commission of India can be downloaded from here.
