Case title:
Shruti Joshi v. State of Uttarakhand & Ors.
Date of Order:
6th March, 2024
Bench:
Hon’ble Ms. Chief Justice Ritu Bahri
Hon’ble Mr. Justice Rakesh Thapiyal
Parties:
Petitioner: Shruti Joshi
Respondent: State of Uttarakhand & Ors
SUBJECT:
The instant matter dealt with the Hon’ble High Court of Uttarakhand (hereinafter referred to as ‘the High Court’ or ‘the Court’). It involves a PIL filed by Adv Shruti Joshi that addresses the concerns of a child’s emotional welfare amidst prolonged legal proceedings of matrimony and/or custody of his parents. The Court, upon consideration, directed strict adherence to the recommended guidelines and amendments, to ensure the best interests of a child and promote effective counselling procedures.
IMPORTANT PROVISIONS:
The Hindu Minority and Guardianship Act, 1956 (HMGA)
The Guardianship and Wards Act, 1890 (GWA)
OVERVIEW:
- Advocate Shruti Joshi initiated a Public Interest Litigation (PIL) focusing on the challenges faced by children in matrimonial proceedings, the welfare of those children, and the setbacks faced by their parents.
- The instant case encompasses the issues raised in the PIL and other related matters relevant to the qualifications of counselling processes within Family Courts.
JUDGEMENT ANALYSIS:
- The High Court stressed that the letter dated 11.01.2024 by the Ministry of Law & Justice must be adhered to for the appointment of counsellors, especially Child psychologists or general counsellors.
- The Court highlighted that it would be in the best interest of the child to follow the guidelines in cases where parents have been granted a divorce.
- It was held that if counselling is deemed necessary at any stage, only qualified psychologists are authorized to provide proper guidance for the child’s upbringing.
- The Court referred to the Law Commission’s 257th report on ‘Reforms in Guardianship and Custody Laws in India’ submitted on 22.05.2015 that recommended amendment of the Hindu Minority and Guardianship Act, 1956.
- As amending the HMGA was a lengthy process, the High Court, in the present case, issued a directive instead of issuing a writ of Mandamus and stated that the implementation of the Commission’s recommendations is mandatory for all Family Courts to follow while dealing with matrimonial disputes, custody or during mediation.
- The Court observed that the emotional needs and growth of children involved in parental disputes have not been accurately adjudicated in past cases. By the time such disputes reached the High Court, the child had already suffered emotional distress for several years. Some even last 5-9 years.
- To address this, the Court emphasized the significance of shared parental responsibilities and grandparents to support a child’s emotional growth and development.
- It was also opined by the Court that individuals who are planning to get married should also be educated on the necessity of shared parenting, as outlined in the report. The emotional well-being of a child should be prioritized during shared parenting in the absence of personal ego.
- It was noted that in the present case, the state of Uttarakhand faced geographical challenges as a hilly state. The Court recognized the challenges, stating that steps have already been taken to facilitate effective mediation and counselling there, including the utilization of electronic modes to reduce the need for parties to have to travel long distances to seek resolution.
- The PIL was subsequently disposed of.
Report No.257 of the Law Commission of India: ‘Reforms in Guardianship and Custody Laws in India’
To emphasize the “welfare of the child” as the paramount consideration in adjudicating custody and guardianship matters, the Law Commission of India decided to study the issue of adopting a shared parenting system in India. Based on the recommendations of the commissions the Courts would have the discretion to award joint custody of children in circumstances beneficial to the child. Some features of the report are as follows.
1.Factors to consider when granting joint custody:
- Stability and suitability of each parent's living environment.
- Ability of each parent to provide for the child's physical, emotional, and developmental needs.
- Willingness of each parent to cooperate and communicate effectively for the benefit of the child.
- Any history of abuse or neglect by either parent.
- Geographical proximity of the parents' residences to each other and the child's school and support networks.
- Any special needs or circumstances of the child that may impact custody arrangements.
2.Determining the preference of the child:
- The age and maturity of the child have to be taken into consideration.
- The provision of a safe and supportive environment for the child to express himself freely.
- The child’s wishes have to be given weight.
3.Access to a child's records:
- Both parents should have access to relevant educational, medical, and other records concerning the child.
- The child’s privacy and integrity have to be protected.
4.Developing a parenting plan:
- Parents have to plan a schedule that allows the child to spend time with both of the parents.
- Parents have to collaborate and come up with resolutions for disputes as the child’s needs change.
5.Allocating grandparenting time:
- Grandparents have to be allocated time for regular visitations so that children are allowed time with their grandparents to maintain healthy relationships with them as well.
6.Utilizing mediation as a dispute resolution mechanism:
- Parents are encouraged to participate in mediation to resolve conflicts.
- Trained mediators, specializing in family law and child custody matters are to be provided.
- Confidentiality has to be ensured in the mediation process.
7. Addressing issues related to relocation:
- In the event of a relocation, the potential impact and the well-being of the child have to be taken into consideration.Parents are to have open communication regarding relocation plans.
CONCLUSION
The High Court directed that the copies of the order be sent to the Ld. Advocate General for the State and Deputy Solicitor General for the Union of India. Additionally, the Registrar General was instructed to circulate copies of the order to all the District Judges and District Legal Services Authorities within the State. Upon issuance of the above directives, the PIL was considered to be disposed of.
