New Delhi, May 23: Pitching for removal of superiority of one parent over the other, the Law Commission on Thursday recommended joint custody of minors to both the parents in case of a divorce, saying Indian custody laws must change with times.
The Commission's recommendations on custody laws assume significance as in India the idea of shared parenting is still new to custody jurisprudence.
"Neither the father nor the mother of a minor can, as of a right, claim to be appointed by the court as the guardian unless such an appointment is for the welfare of the minor," it said in its report submitted to the Law Ministry on Thursday.
It said wherever possible, courts should now grant joint custody of minors.
Recommending changes in the Hindu Minority and Guardianship Act and the Guardians and Wards Act, the panel said even after the Supreme Court's judgement in Gita Hariharan vs Reserve Bank of India case, the mother can become a natural guardian during the lifetime of the father only in exceptional circumstances.
"This is required to be changed to fulfill the principles of equality enshrined in Article 14 of the Constitution," the law panel said.
The Commission said the amendments are necessary in order to bring these laws in tune with modern social considerations. Major amendments are recommended to the Guardians and Wards Act, 1890, by introducing a new chapter on custody and visitation arrangements.
It said amendments to the Guardians and Wards Act, 1890 will be relevant for all custody proceedings, besides any personal laws that may apply.
The two draft bills proposed by the panel to amend the existing laws also deal with removal of preference for the father as the natural guardian under Hindu law. It says that both parents be granted equal legal status with respect to guardianship and custody.
The draft law also empowers courts to award joint custody to both parents in circumstances conducive to the welfare of the child, or award sole custody to one parent with visitation rights to the other.
Besides recommending changes in the two laws, the Commission has also provided specific guidelines to assist courts in deciding such matters, including processes to determine whether the welfare of the child is met; procedures to be followed during mediation; and factors to be taken into consideration when determining grant for joint custody.
The guidelines introduce several new concepts in this regard, including parenting plans, grand parenting time, visitation rights, and relocation of parents.
They also elaborate the position on related aspects such as determining the intelligent preference of a child, access to records of the child, and mediation.
The draft bills also empower courts to fix an amount specifically for child support to meet basic living expenses.
Financial resources of parents, and the standard of living of the child must be considered when fixing such amounts. Child support must continue till the child turns 18, but may be extended till 25 or longer, in case of a child with mental or physical disability.
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