The Gist of Press Information Bureau: August 2015
Law Commission of India Submits Report on Guardian ship and Custody Laws
The Law Commission of India has submitted its Report No. 257
on “Reforms in Guardianship and Custody Laws in India” today to the Union
Minister of Law and Justice. The report suggests amendments to existing laws to
emphasize the “welfare of the child” in custody and guardianship matters, and
introduces the concept of joint custody as an option to be considered in certain
cases. Children are the worst affected in proceedings of divorce and family
breakdowns. Often, parents use children as pawns to strike their own bargains,
without considering the emotional, social and mental upheavals that the children
may face. The Commission believes this imbalanced situation can be addressed in
some measure through changes to the law that will place a duty upon the court to
uphold the child’s welfare in each and every case. This will ensure that the
child’s future is safe and protected, regardless of changing familial
circumstances.
Courts in India have recognised the welfare principle, but
many aspects of the legal and judicial framework remain wanting. Courts tend to
grant custody of a child to either one parent or another, presuming that it is
for the welfare of the child. Joint custody arrangements, where both parents
have custody of the child, are rarely considered. Problems in court decisions
are compounded by inconsistencies in the law. For instance, the Hindu Minority
and Guardianship Act, 1956, regards the welfare of the child as being of
paramount consideration, but the Guardians and Wards Act, 1890, contains no such
provision. Similarly, the 1956 law does not treat the mother on an equal footing
with the father as the natural guardian of her child. Further, custody battles
are among the most fiercely fought in courts, because there is no agreement or
understanding about what constitutes the welfare of the child. As a result, it
is impossible to ensure that the interests of the child are actually protected.
The legal framework also contains no guidelines about the manner and process by
which custody issues should be handled.
Accordingly, this report of the Law Commission reviews the
current laws dealing with custody and guardianship, and recommends legislative
amendments to the Guardians and Wards Act, 1890 and the Hindu Minority and
Guardianship Act, 1956. These 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. The Commission believes that the Guardians and
Wards Act, 1890, being a secular law, will be relevant for all custody
proceedings, besides any personal laws that may apply.
The key aspects of the legislative recommendations are as follows:
1. Welfare principle: The draft law strengthens the welfare
principle in the Guardians and Wards Act, 1890, with a continuous emphasis on
its relevance in each aspect of guardianship and custody related decision-making
2. Abolition of preference: The draft law removes the preference for the father
as the natural guardian under Hindu law, and both parents are granted equal
legal status with respect to guardianship and custody.
3. Joint custody: The draft law 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.
4. Mediation: Parties to a custody matter must ordinarily consider expert-led
and time-bound mediation, which can not only promote better outcomes for parents
and children, but also reduce the strain on the overburdened court system.
5. Child support: The draft law empowers courts to fix an amount specifically
for child support, to meet basic living expenses of the child. 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.
6. Guidelines: The draft law includes detailed guidelines to help courts,
parents and other stakeholders arrive at the best arrangement to serve the
welfare of the child. 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.
‘Koshish’
organization on Monday held a gathering of its members on Monday.
About
4.65 lakh candidates today appeared for civil services preliminary examination
across the country.
What
is the training schedule currently?
