india

Updated: Oct 26, 2019 02:44 IST

The Supreme Court sought the Centre’s responseon Fridayon a petition filed by a London-based non-resident Indian (NRI) woman seeking a uniform law for joint custodial rights of children in cases of matrimonial disputes.

The petitioner claimed that at present, the personal law of Hindus, Muslims, Christians and other communities allows custodial rights only to one of the spouses and in most cases, it’s the man who is given the preference.

A bench led by Chief Justice Ranjan Gogoi issued notice after the petitioner’s lawyer, Kaleeswaram Raj, argued the personal and special laws are gender-discriminatory because they give preferential rights to men, violating the equality clause in the Constitution.

The petitioner was identified as Sulochana Rani, who argued that the existing legal provisions are in the nature of entrusting the custody of children exclusively to one of the parents in case of separation. The statutes create a strong presumption in favour of exclusive custody. This affects the fundamental rights of the spouse who is denied the custody rights.

Even the child is deprived of care and love of both parents. Therefore, the scheme of statutes requires reformation, the petitioner stated.

Pleading for a child-centric approach, the petitioner said the idea of shared parenting does not find a place in the family laws of the country. Provisions from various personal laws have been quoted to underline how primacy is given to a man, relegating a woman to secondary status when it comes to deciding the guardianship of a child. Such provisions need to be struck down, the petitioner said.

“Due to the absence of shared parentage system in India, the fundamental rights of the children are violated. The right of a child to love and to be loved is already recognised as a fundamental right and is to be protected,” the petition said.

“Currently, custody is given to one of the spouses only and the other spouse is given visitation rights. There is no rational basis in going for such an option violating the fundamental rights of the other spouse and the child. This is done without taking into account the best interest of the child, which the concept of shared parentage will satisfactorily fulfil. The impugned provisions are liable to be struck down as unconstitutional,” the petition added.