The Gist of Press Information Bureau (PIB): August 2015

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.

‘Biodiversity for Sustainable Development’

The Minister of State (Independent Charge) of Environment said that this earth has been borrowed from children and not inherited from ancestors. The Minister said that the imperative challenge before India is to imbibe and translate the theme of Biodiversity for Sustainable Development, due to its privileged status as a megabiodiverse country, past and projected demographic transitions and commitment to democracy as a political principle. International Day for Biological Diversity is celebrated to recognize the pivotal role of biodiversity to life on earth and human well-being, as well as to increase awareness of the importance of biodiversity and the threats to it. It was on this day in 1992 that the text of the Convention of Biodiversity was adopted. This year’s theme is ‘Biodiversity for Sustainable Development’. During the preceding years, Biodiversity and Poverty Alleviation in 2003, Biodiversity: Food, Water and Health for All in 2004, Biodiversity: Life Insurance for our Changing World in 2005, Protect Biodiversity in Drylands in 2006 and Biodiversity and Agriculture in 2008, have been some of the other themes. The International Day for Biological Diversity is being celebrated all over the country. The main event is being held in Srinagar, Jammu & Kashmir.

Biodiversity, the variety of life on earth, is vital to social and economic development, and is indeed fundamental to our survival. Over the years, retrospective wisdom and the development experience have guided us in favour of the commonsensical understanding that protecting the variety of life forms and their infinitely complex interactions, form the very basis for long-lasting and inclusive development. In other words, environment, or more specifically biodiversity and its invaluable and often irreplaceable ecosystem services, from the air we breathe to the water we drink, are the very foundation on which viable long-term development rests. Former themes for the International Day for Biological Diversity have captured this fact in snippets. Past themes have been: Biodiversity and Poverty Alleviation (2003); Biodiversity: Food, Water and Health for All (2004); Biodiversity: Life Insurance for our Changing World (2005); Protect Biodiversity in Drylands (2006); and Biodiversity and Agriculture (2008) among others.

The challenge before India to imbibe and translate the theme of ‘Biodiversity for Sustainable Development’ is imperative in the light of our privileged status as a megabiodiverse country, past and projected demographic transitions and commitment to democracy as a political principle. These three facets make it non-negotiable that we galvanise the political will, scientific and technological know-how and financial resources to contribute to the agenda set out in the outcome document from the Rio+20 Conference, ‘The future we want’.

Nature has generously endowed our country. With only 2.4% of the world’s land area, India has 7-8% of the recorded species of the world, with over 46,000 species of plants and 91,000 species of animals. India is also an acknowledged centre of crop diversity, and harbours many wild and domesticated animals, fish and millions of microbes and insects. The ecosystem diversity is also unparalleled. These are the strengths to draw upon to meet the goals of ending poverty and hunger; achieving food security and improved nutrition and promoting sustainable agriculture; ensuring healthy lives and promoting well-being for all at all ages; ensuring availability and sustainable management of water and sanitation for all and in making cities and human settlements inclusive, safe, resilient and sustainable. Promoting multiple varieties of staple foodgrains; switching to cropping patterns, wider seed and plant variety choices, water conservation and utilisation patterns, and farming practices that combine the best of traditional wisdom and science with a whole-system perspective; valuing the therapeutic properties and medicinal uses of various parts of plants and animals; all form key aspects of the way ahead.

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