The Law Commission’s recommendation on joint custody of children in divorce cases has far reaching implications. The change will bring antiquated laws in tune with today’s social environment. While many choose to believe that marriage is sacrosanct in Indian society, our divorce rates — though lower than in the West — are slowly creeping up. Marital discord is unpleasant, but the phenomenon is rising here, and our legal framework has to cope with this change.
Significantly, joint custody is meant to serve the principle of gender equality best. It will replace a system that has so far been granting child custody in a haphazard manner, relying more on subjective judgements in individual cases while under existing laws — the Guardian and Wards Act 1890 and Hindu Minority and Guardianship Act 1956 — the natural guardian of a Hindu minor is the father, and after him the mother. A child under five is usually given to the mother. The law, curiously, upholds male superiority, while the SC has always stressed that the paramount consideration should be the interests of the child, and not the parent’s rights.
The idea of shared parenting is fairly new to custody jurisprudence, of which we tend to think only when extreme cases turn up, such as the custody of two small children torn between warring parents and relatives in Norway and Kolkata recently. The situation tends to get complicated in divorce cases, as mostly it is the mothers who win custody battles and less than eight per cent of divorced fathers function as single parents. The arrangement used to force single fathers to even kidnap their children.
Joint parenting can also take the complications out of visitation rights, though creating a satisfactory mechanism to deal with emotional issues arising out of children having to cope with legal battles between warring parents would be an enormous challenge. Difficulties arise when the justice system, as in family courts, is called upon frequently to adjudicate on the relationships between men and women. The abusive father versus the protective mother is not always true. How effective the new guidelines will be when it comes to defining the processes to determine whether the welfare of the child is met and what are the procedures to be followed during mediation remains to be seen. However, it is admirable that the Law Commission is attempting to take even the issue of failed marriages towards modernity and gender equality.
