257th Report Law Commission of India: Reforms in Guardianship and Custody Laws in India

In the country like India where Children are supposed to be the ‘future of nation’, the conditions of many amongst them are very poor, due to the only reason of improper custody and care. In the divorce proceedings and family breakdowns matters, the children are grossly suffering. And due to any improper custody, even though by mistake, will harshly and very badly damage their future, either educational or general. Most of the Children, due to such improper custody or care, are turned to the bad people and terror minded people. The instances can be given many, more, but thing important is only to give suggestions over the instances. In India, there are several legislative enactments dealing with the matters of Child Custody and Guardianship and the enactments having absolute relevancy to the matters are the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. The 20th Law Commission of India has come up with its 257th Report[1], being titled as, ‘Reforms in Guardianship and Custody Laws in India’ where a number of legislative modifications in the existing legal frame work regarding ‘Welfare of the Child’ were emphasized as the paramount consideration in the matters of adjudication of Child Custody and Guardianship. The Law Commission while showing its concerns has considered that there are certain problems in the welfare principle which occurs in our legal and judicial framework, like a different legislations connected to the matters, having different relevancy to the welfare principle.

The Law Commission by the concerned report no. 257, which was submitted by the month of May, 2015, has shown its concern to review the existing laws being ‘The Guardians and Wards Act, 1890’ and ‘The Hindu Minority and Guardianship Act, 1956’ and sought to recommend certain legislative amendments. The reasons and objects for which such modifications and amendments in the existing laws pointed by the Commission includes, strengthening of the Welfare principle in existing law by emphasizing its relevance with the matters of decision making in Guardianship and Child custody, giving equal legal status to mother and father in the matters connected to Guardianship and Child custody, for helping the decision makers, providing them with the detailed guidelines and for giving an option in awarding Join- custody to both mother and father.

In reforming the Guardianship and Child Custody laws in India, the Law Commission has issued the ‘Consultation Paper’ analysing ‘Shared parentage systems’ existing across the world and also reviewed the existing law in India and in its study also published set of questions on the matter and sought comments from the general public.

In the Report, various law related to the welfare of child and on the matters of Child Custody and Guardianship were reviewed and the list of those includes the Guardians and Wards Act, 1890, Hindu Minority and Guardianship Act, 1956, Hindu Marriage Act, 1955, Islamic Law and Parsi and Christian laws. Besides, the higher judiciaries in the country have also supported the actual welfare of child in the matters of Custody disputes. The father though was posted at the top in the matter of custody, however, there were many instances[2] where the higher judiciaries including several High Courts and honourable Apex Court had specifically declared mother to be the best for the custody of Child, even many times by modifying the scope of the existing provisions.

The Law commission in this report has discussed the widely spread concept of ‘Joint custody’ systems. However, there are different approaches relating to the concept in the different Countries. The concept can be referred to both ‘joint legal custody’ and ‘joint physical custody’ or even combination thereof. The definition can be seen as recognized in the State of Virginia, State of Georgia, etc.[3] However, in India, the concept of ‘Joint custody’ is not specifically provided for in legal frame work and as per the various lawyers dealing with such matters, the Judges from the Family Courts not even using the said concept while determining the concerned matters of Child custody. But, considering the growing demands for joint custody, and the matters of unwanted development of child without having custody of either parent, and many, more other grounds, the present Law Commission sought to consider it important to look into the potentials of the ‘Shared parenting model’ in India. Besides this, the Commission also pointed the importance of mediation in the matters of Child custody, which will bring real solutions which will not decide what is right and what is wrong, but will provide for meeting needs of family in the best possible interest of Children. And for deciding cases, the Law Commission here sought to provide for certain guidelines for the Judges and others from the group of decision- making to arrive at best possible decision in the Child Custody cases, many of such guidelines are based, primarily, on the States in the United States- US as they found to have most developed ones.

As such the present Law Commission of India has recommended on the issues of Child Custody and Guardianship and most specifically pointed the need to add to the existing legal frame work, the principle ‘shared parental custody’ and thus explained the requirement of having ‘joint custody’ in India. More specifically, the recommendations include the amending of the two most relevant existing legislations viz. The Hindu Minority and Guardianship Act, 1956, and The Guardians and Wards Act, 1890 by introducing The Hindu Minority and Guardianship (Amendment) Bill, 2015, and The Guardians and Wards (Amendment) Bill, 2015, respectively as enclosed with its report no. 257. In such amendments the major one is for insertion of new Chapter to the Guardians and Wards Act, 1890, being Chapter IIA which will deal with the Child custody, Child support and Visitation issues in the matters arising.  Certain specific guidelines are also providing by the Commission in seeking amendments to that law, for assisting the Courts in deciding such matters, including processes to determine whether the welfare of the child is met; procedures to be followed during mediation; etc.

Looking to the recommendations of the Law Commission, in its 257th report, an inference can be drawn that the said will bring tremendous effective changes in the matters of children’s right and also it hoped that the said will, essentially, support the matters of feelings of the children which is of great sensitivity, as nation’s proud is concern.

by Faim Khalilkhan Pathan.