NEW DELHI:The Law Commission on Friday submitted a draft law to the government proposing amendments to the existing guardianship and custody laws. The draft law provides for welfare of children as paramount consideration while deciding custody.
Law Commission chairman Justice A P Shah said: “Currently there is disparity in the relevance accorded to the principle of welfare of children by different legislations regulating custody and guardianship.”
For the first time in India, the concept of shared parenting has been proposed to give joint custody rights of a child to both parents in case of divorce — equal legal status with respect to guardianship and custody.
The commission has proposed statutory guidelines to judges on determining child welfare rights in cases of joint custody. At present there is uncertainty and lack of judicial consensus on what exactly constitutes welfare of the child. “As a result, in fiercely fought custody battles, there are no ways to ensure that the interests of the child are actually protected,” Justice Shah said.
The draft law has proposed that courts should be empowered to fix an amount specifically for child support which could be continued up to the age of 18 years and may be extended till 25 years, and lifetime in case of a child with mental or physical disability. Rights of children to have access to grandparents and to decision-making are some of the other issues which were deliberated.
Currently, the Guardians and Wards Act of 1890, which regulates custody of children irrespective of their religion, continues with the supremacy of the paternal right in guardianship and custody.
Even the other law that regulates custody, the Hindu Minority and Guardianship Act of 1956, does not treat the mother on an equal footing with the father as the natural guardian of her child.
The disparity is such that Section 19 of the Guardians and Wards Act offers “a preferential right to the husband (of a minor girl), or the father (in all other cases) to be guardian, if neither were unfit to be appointed guardian”.
The Guardians and Wards Act, in section 25, even provides for the “arrest of a ward if the ward leaves or is removed from the custody of his guardian, if such arrest is for the welfare of the ward”.
In its recommendations, the law panel has listed the legal framework required to address how custody issues should be handled, what factors should be relevant in decision-making, and what should be the process of dispute resolution between parents over children, among others.
At present there are no codified rules governing custody. Decision-making in this area is based on the presumption that welfare of the child essentially lies in custody being awarded to any one of the parents.
The Law panel report has reviewed all the current laws dealing with custody and guardianship, and recommended legislative amendments to the Guardians and Wards Act and the Hindu Minority and Guardianship Act. “These amendments are necessary in order to bring these laws in tune with modern social considerations,” the commission has said.