New Delhi: The parents may divorce, but children should legally and emotionally be married to both because that is in the “best interest" of the child. Emphasizing that the welfare of a child is the“paramount consideration", the Law Commission of India on Friday submitted a report on child custody laws to the law ministry.

The concept, adopted from the West, will be an option available to divorcing couples to share physical custody of the child. It means both parents will be regarded as natural guardians of the child simultaneously.

As the law exists today, the father is the natural guardian of a child, followed by the mother (if the father dies). In exceptional circumstances, the mother can be declared the natural guardian even while the father is alive.

Seeking an amendment to the Hindu Minority and Guardianship Act, 1956, the Commission, headed by former chief justice of the Delhi high court A.P. Shah, suggests removing the superiority of one parent over the other for the purposes of guardianship.

“We are almost half a century behind in custody laws. In custody-related issues, children are the worst affected. They are used by the two to have some bargain with the other side. The laws are very scanty. The Guardianship Act is a colonial law, very archaic," Shah told reporters.

The Commission has also asked for amendments to the Guardianship and Wards Act, 1890, and sought to ensure that a minor’s welfare is taken to be the most important consideration in the appointment of a guardian for a minor.

But, as Razia Ismail, chairperson of India Alliance for Child Rights. points out, deciding what is best for the child is the hardest thing to do and is not something that courts can decide.

“Children in such cases are very vulnerable; their sense of security and confidence is very precarious. India is short of professional competence in assessing child rights and giving counselling. It is a welcome step but in the absence of professional cadres who can assess, joint custody will not work out," she said.

In cases when one parent opposes the divorce, activists fear joint custody can be used as a means of holding onto the marital relationship.

“If everything has to be decided by the couple jointly, it will just become a continuous process of harassing the wife. There should be a primary caretaker of the child. This joint custody will just complicate things for both the mother and the child. In India, the situation is very different from the West," said Flavia Agnes, women’s rights lawyer and director of Majlis Legal Centre, based in Mumbai.

However, the recommendations very clearly state under what conditions the court can consider the option of joint custody. It states that before proposing the option, the court needs to assess whether the parents are mature, responsible and willing to cooperate and agree on decisions affecting the welfare of the child. And also on how parents should be able to jointly design and implement a day-to-day care plan that fosters stability.

According to a study, Arguments Against Joint Custody, by Dianne Post in the Berkeley Journal of Gender, Law and Justice published in 2013, “Joint custody demands ideal circumstances and exceptional parents to succeed at all. Even with highly committed and motivated parents, joint custody is not for all children."

Bharti Sharma, former chairperson of Child Welfare Committee, said, “How can joint custody work when a father and mother aren’t willing to even look each other in the eye. That is why they are seeking a divorce. The law cannot decide what a child wants. This is a relationship that cannot be dictated by law. Judges who decide what the child wants need to meet the child in a child-friendly environment and speak with him extensively on what he wants."

The panel also suggests that a court will consider the wishes of a child older than 14 years while passing orders. Further, it suggests inserting a new chapter on custody, child support and visitation. One of the provisions is to ensure that this chapter applies across three laws—the Indian Divorce Act, 1896, the Parsi Marriage and Divorce Act, 1936, and the Hindu Marriage Act, 1955.

The report asks for a time-bound mediation of disputes related to child custody, child support (arising out of divorce cases). It also recommends a case-by-case fixing of “reasonable and necessary" maintenance for the child.

The recommendations also seek a change in the concept of “arrest" of a ward (a minor for whose person or property or both there is a guardian) and suggest replacing the word with return of a ward in case s/he runs away.

The government had in 2010 said 55,000 divorce cases were pending in the country’s courts. If the recommendations of the Commission are accepted by the government, they might act as a determining factor in expediting long-pending pending cases.

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