Custody Laws in India

Custody Laws in India

Subject – Governance

Context – With access to courts in child custody matters getting tougher with the return on restrictions on court hearings during the pandemic, non-custodial parents and children are again at the receiving end

Concept –

• While the concept of shared parenting is a reality in countries such as the U.S., the U.K. and Australia, it is not an option in India.

Two laws determine the custody of children in India.

The Hindu Minority and Guardianship Act (HMGA) of 1956

• The first is The Hindu Minority and Guardianship Act (HMGA) of 1956, which states that the natural guardian of a Hindu minor boy or unmarried girl shall be the father and mother, provided that custody of a minor who has not completed five years of age shall ordinarily be with the mother.
• But the HMGA does not contain any independent, legal or procedural mechanism for deciding custody rights or declaring court-appointed guardians.

Guardian and Wards Act of 1890 (GWA)

• Second law, is colonial in nature, the Guardian and Wards Act of 1890 (GWA). This deals with the appointment of a person as a ‘guardian’ to a child, both with respect to the child and property.
• Child custody, guardianship and visitation issues between parents are determined under the GWA, if a natural parent wants to be declared as an exclusive guardian to his/her own child.
• Upon disputes between parents in a petition under the GWA, read with the HMGA, guardianship and custody can be vested with one parent with visitation rights to the other parent.
• In doing so, the welfare of the minor or “best interests of the child” shall be of paramount consideration.

What does “best interests of the child” mean?

• India is a signatory to the United Nations Convention on the Rights of the Child (UNCRC).
• The definition of “best interests of the child” has been incorporated from the UNCRC in the Juvenile Justice (Care and Protection of Children) Act, 2015.
• The “best interests of the child” means “the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development” and is paramount in any custody battle.

Recommendations made for joint parenting

• The Law Commission of India Report in 2015, on Reforms in Guardianship and Custody Laws in India, recommended joint custody and shared parenting.
• In 2016, a draft bill was recommended for protecting the “best interests of the child” titled The Protection of Children (Inter-Country Removal and Attention) Bill.
• The report of the Justice Bindal Committee, submitted to the Government in 2018, also said that “best interests of the child” are of paramount importance in matters relating to child custody in view of the UNCRC.
• Against this backdrop, in 2017, in Vivek Singh v. Romani Singh, Justice A.K. Sikri of the Supreme Court highlighted the concept of Parental Alienation Syndrome, which refers to the unjustified disdain of a child towards his or her parents. The judgment underlined its “psychological destructive effects.”