Guardianship And Custody Laws In India Under Scrutiny: Towards Constructive Criticism

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Man-made laws, unlike Divine laws, aren’t timeless diktats. Essentially time-bound and space-bound, it is required of them to keep pace with the time and context they are set in. It’s a sign of a healthy, intellectually-driven society that legislation be reviewed and counter-reviewed time and again so as to keep the failings (if any) in check.  The Law Commission of India recently submitted its Report No. 257 on “Reforms in Guardianship and Custody Laws in India” to the Union Minister of Law and Justice.  Keeping “welfare of the child” as the underlying motive, the report pushed for amendments in the laws dealing with guardianship and custody in India.

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,” reported the Press Information Bureau. The laws that were considered for these reforms were Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. The amendments that are sought by the Commission are in line with the modern sociological aspects and seek to settle disputes relating to guardianship and custody on these counts – Welfare principle, Abolition of preference, Joint custody, Mediation and Child support.  A new chapter on custody and visitation arrangements has therefore been recommended in the Guardians and Wards Act, 1890.

      Press Information Bureau, Government of India reported the highlights of the draft law and analyzed the key recommendations. Firstly, the welfare of the child has been continually emphasized. Secondly, it has renounced the age-old principle of the father being the natural guardian under Hindu law and has put both the parents on an equal footing in this regard. Also, it 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. It has also been proposed that parents consider ‘expert-led’ and ‘time-bound’ mediation not only to ensure better results for themselves but also with a view to reduce the pressure on the overstrained court system. With regard to the child support, the bureau reported, 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. Lastly, the guidelines that have been introduced in the draft law to help the courts, parents and other stakeholders include some new concepts such as 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.

Amidst the heap of challenges that we as a nation face today, if we can still ensure the psychological well-being of our children subjected to adverse familial relations via sound legislation in their favour; we are already a step forward. However, easier-said-than-done rhetoric is not borne out of nothing and we do really lack when it comes to implementation. To ensure that a step forward is not followed by two steps backward, we need to understand that count-your-blessings approach is not always fine for a developing nation like ours. However, a thorough intellectual discourse needs to open up amidst civilian circles so as to facilitate the enforcement and implementation of such constructive laws.

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