Table of Contents

Introduction
Statutory Law
Judicial Interpretations
International Approaches to Joint Custody
Joint Custody of Children in India
Reasons for adopting this Concept
Considerations while deciding Child Custody Cases

INTRODUCTION
The 20th Law Commission has mooted the concept of shared parenting and joint custody rights

to a child in case the parents opt for a divorce, both parents have equal access to the child and

there should be no restricted visiting periods for a parent who does not have rights. While parents

are natural guardians of their children, the primary caretaker of young children is more often the

mother who takes care of the child's emotional and educational needs. This has made retired

Justice A P Shah, chairman of the 20th Law Commission, propose sweeping amendments to the

existing guardianship and custody law in order to make it more compatible with changing times.

Morgenbesser and Nehls define joint custody as when "both divorced parents share the rights and

responsibilities for raising their child or children". 1 They go on specifying that the legal concept

"attempts to guarantee divorced parents an equal say in decision-making and in overall child

rearing". We can here again see quite a .difference from the view of the Swedish horizon, i.e. that

with a joint custody both the overall meaning and the legal concept goes into the practical

matters of sharing , of decision-making , and of rights and respon- sibilities. In their discussion

of what joint custody is, Morgenbesser and Nehls differentiate between the term co-parenting

and joint custody. They mean that it is of importance not to confuse those two terms. For them

co-parenting means the legal custody granted to one of the parents but the true custody shared

between the two. In Table 2 we try to illustrate parts of this discussion. For Morgenbesser and

Nehls (1981) joint custody is classified as legal custody to both parents independent of the true

custody. Sole custody is for them when the legal custody is only with one of the parents.

1 Morgenbesser, Mel and Nehls, Nadine 1971 "Joint Custody", Nelson Hall, Chicago.
 STATUTORY LAW

Section 7 of the Guardianship and Wards Act authorizes the court to appoint a guardian for the

person or property or both of a minor, if it is satisfied that it is necessary for the welfare of the

minor.2 Section 17(1) states that courts shall be guided by what the personal law of the minor

provides and what, in the circumstances of the case, appears to be for the welfare of the minor.

The earlier Section 19(b) prevented the court from appointing a guardian in case the father of the

minor was alive. This clause was amended by the Personal Laws (Amendment) Act, 2010 and

was made applicable to cases where even the mother was alive, thus removing the preferential

position of the father.3

Reading the above provisions together, it can be concluded that, in appointing a guardian to the

person or property of a minor under the GWA, courts are to be guided by concern for the welfare

of the minor/ward. This is evident from the language of Sections 7 and 17. At the same time, the

implication of Section 19(b) is that, unless the court finds the father or mother to be particularly

unfit to be a guardian, it cannot exercise its authority to appoint anyone else as the guardian.

Thus, power of the court to act in furtherance of the welfare of the minor must defer to the

authority of the parent to act as the guardian.

In modern statutory Hindu law, the Hindu Minority and Guardianship Act, 1956 (hereinafter,

HMGA) provides that the father is the natural guardian of a minor, and after him, it is the mother.

Section 6(a) of the HMGA provides that: (1) in case of a minor boy or unmarried minor girl, the

2 Guardian and Wards Act, No. 8 of 1890, 7.

3 Personal Laws (Amendment) Act, No. 30 of 2010, 2

natural guardian is the father, and after him, the mother; and (2) the custody of a minor who has

not completed the age of five years shall ordinarily be with the mother (emphasis added).

In Gita Hariharan v. Reserve Bank of India,4 the constitutional validity of Section 6(a) was

challenged as violating the guarantee of equality of sexes under Article 14 of the Constitution of

India. The Supreme Court considered the import of the word after and examined whether, as

per the scheme of the statute, the mother was disentitled from being a natural guardian during the

lifetime of the father. The Court observed that the term after must be interpreted in light of the

principle that the welfare of the minor is the paramount consideration and the constitutional

mandate of equality between men and women. The Court held the term after in Section 6(a)

should not be interpreted to mean after the lifetime of the father, but rather that it should be

taken to mean in the absence of the father. The Court further specified that absence could be

understood as temporary or otherwise or total apathy of the father towards the child or even

inability of the father by reason of ailment or otherwise. 5 Therefore, in the above specific

situations, the mother could be the natural guardian even during the lifetime of the father. Section

13 of the HMGA declares that, in deciding the guardianship of a Hindu minor, the welfare of the

minor shall be the paramount consideration and that no person can be appointed as guardian of

a Hindu minor if the court is of the opinion that it will not be for the welfare of the minor.6

First, the father continues to have a preferential position when it comes to natural guardianship

and the mother becomes a natural guardian only in exceptional circumstances, as the Supreme

4 (1999) 2 SCC 228.

5 Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228, 25

6 Hindu Minority and Guardianship Act, No. 32 of 1956, 13.

Court explained in Gita Hariharan. Thus, even if a mother has custody of the minor since birth

and has been exclusively responsible for the care of the minor, the father can, at any time, claim

custody on the basis of his superior guardianship rights. Under the GWA, parental authority

supersedes the welfare principle, while under the HMGA, the welfare principle is of paramount

consideration in determining guardianship. Section 26 of the Hindu Marriage Act authorizes

courts to pass interim orders in any proceeding under the Act, with respect to custody,

maintenance and education of minor children, in consonance with their wishes.

In Islamic law, the father is the natural guardian, but custody vests with the mother until the son

reaches the age of seven and the daughter reaches puberty. Islamic law is the earliest legal system

to provide for a clear distinction between guardianship and custody, and also for explicit

recognition of the right of the mother to custody.7

JUDICIAL INTERPRETATIONS

In a 1950 decision under the GWA, the Madras High Court awarded custody to the mother based

on the welfare principle, even though the father was not found unfit to be a guardian. 8 Courts

have held that in deciding custody, children should not be uprooted from their familiar

surroundings just to give effect to the fathers right to natural guardianship. 9 In a case where the

child was brought up by the maternal grandparents after the death of the mother, the Andhra

Pradesh High Court held that, in view of Article 21 of the Constitution, children cannot be

7 Paras Diwan, LAW OF ADOPTION, MINORITY, GUARDIANSHIP & CUSTODY (2012)

Universal Law Publishing Co.: New Delhi, at P. xvi.

8 Soora Beddi v. Cheema Reddy, AIR 1950 Mad 306.

9 Vegesina Venkata Narasiah v. Chintalpati, AIR 1971 AP 134.

treated as chattel and the fathers unconditional right to the custody over children and their

property cannot be enforced, even if the father was not unfit to act as the guardian. 10 In Suharabi

v. D. Mohammed,11 where the father objected to the mothers custody of the one-and-a-half year-

old daughter on the ground that she was poor, the Kerala High Court held that the mother was

authorized to have custody of a daughter of that age under Islamic law. In similar vein, in Md.

Jameel Ahmed Ansari v. Ishrath Sajeeda, 12 the Andhra Pradesh High Court awarded the custody

of an eleven-year-old boy to the father, on the ground that Muslim law allowed the mother to

have exclusive custody only until the age of seven in case of male children, and there was

nothing to prove that the father was unfit to be a guardian in this case.

Two problems can be noted with the legal and judicial framework described above. The first is

the superior position of the father in case of guardianship, though not necessarily in case of

custody. The second is the indeterminacy of the welfare of the child principle, despite its

widespread usage.

INTERNATIONAL APPROACHES TO JOINT CUSTODY

The term joint custody can refer to several different things: joint legal custody, joint physical

custody, or a combination of both. The definition in the State of Virginia recognizes this: Joint

custody means (i) joint legal custody where both parents retain joint responsibility for the care

and control of the child and joint authority to make decisions concerning the child even though

the child's primary residence may be with only one parent, (ii) joint physical custody where both

10 L. Chandran v. Venkatalakshmi, AIR 1981 AP 1.

11 AIR 1988 Ker 36.

12 AIR 1983 AP 106.

parents share physical and custodial care of the child, or (iii) any combination of joint legal and

joint physical custody which the court deems to be in the best interest of the child.13 The State of

California has the following definitions:

Sole legal custody means that one parent shall have the right and the responsibility to make the

decisions relating to the health, education, and welfare of a child. Sole physical custody means

that a child shall reside with and be under the supervision of one parent, subject to the power of

the court to order visitation. Some have a presumption that shared parenting is in the best interest

of the childAustralias Family Law Act, for example, states that, [W]hen making a parenting

order in relation to a child, the court must apply a presumption that it is in the best interests of

the child for the child's parents to have equal shared parental responsibility for the child.14

A US Court of Appeals noted in Braiman v Braiman: Joint custody is encouraged primarily as a

voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion.

As a court-ordered arrangement imposed upon already embattled and embittered parents,

accusing one another of serious vices and wrongs, it can only enhance familial chaos.15 Family

courts in South Africa, for example, do not frequently award joint physical custody of children

on the basis that such an arrangement would be disruptive for the child, particularly in cases

where the parents live far apart.16

JOINT CUSTODY IN INDIA

13 VA Code Ann. 20-124.1.

14 Australia, Family Law Act, 1975 61DA (as amended); see also Idaho Code Ann. 32-
717B(4) ([T[here shall be a presumption that joint custody is in the best interests of a minor
child or children.).

15 Braiman v. Braiman, 44 N.Y.2d 584 (1978)

Two examples of attempts to institutionalize shared parenting in India in recent times are noted

below. A set of guidelines on child access and child custody, prepared by the Child Rights

Foundation, a Mumbai-based NGO, understands joint custody in the following manner: child

may reside alternately, one week with the custodial parent and one week with non-custodial

parent, and that both custodial and non-custodial parent share joint responsibility for decisions

involving childs long term care, welfare and development.17 The second example of joint

custody is found in a 2011 judgment of KM Vinaya v. B Sriniva18s the Karnataka High Court,

which used the concept to resolve a custody dispute involving twelve-year old boy.

REASONS FOR ADOPTING THIS CONCEPT

At present, our legal framework for custody is based on the assumption that custody can be

vested with either one of the contesting parties and suitability is determined in a comparative

manner.19 But, just as the basis for dissolving marriage has shifted over time, from faultbased

divorce to mutual consent divorce, we need to think about custody differently and provide for a

broader framework within which divorcing parents and children can decide what custodial

arrangement works best for them. In modern day custody battles, neither the father, as the

16 A Barrat and S Burman,Deciding the Best Interests of the Child 118 South African Law
Journal (2001).

17 Child Rights Foundation, Child Access and Custody Guidelines (2011), available at
http://www.mphc.in/pdf/ChildAccess-040312.pdf, p. 24.

18 MFA No. 1729/ 2011, Karnataka High Court, Judgment dated Sept. 13, 2013.

19 Swati Deshpande, Divorced Dads Unite for Custody Rights, Times of India (Sept. 9, 2009),
http://timesofindia.indiatimes.com/india/Divorced-dads-unite-for-
custodyrights/articleshow/4988614.cms
traditional natural guardian, nor the mother, as the biologically equipped parent to care for the

child of tender age, are routinely awarded custody. The principle, best interest of the child takes

into consideration the existing living arrangements and home environment of the child. Each

case will be decided on its own merit, taking into account the overall social, educational and

emotional needs, of the child.20 In the legal systems of several Western countries, there is a

presumption in favor of joint custody, and sole custody is awarded only in exceptional

circumstances. We have already aware of the inequalities in parental roles, responsibilities and

expectations that exists in our country. Therefore, we are not in favor of the law placing a

presumption in favour of joint custody. As opposed to the case of guardianship, where we have

recommended shared and equal guardianship for both parents, in this case, we are of the view

that joint custody must be provided as an option that a decision maker can award, if the decision-

maker is convinced that it shall further the welfare of the child.

CONSIDERATIONS WHILE DECIDING CHILD CUSTODY CASES

A number of jurisdictions have statutes that enumerate specific factors to guide courts when they

consider the best interests of a child. Generally, these factors relate to: the physical and mental

condition of the child; the physical and mental condition of each parent; the childs relationship

with each parent; the needs of child regarding other important people (siblings, extended family

members, peers, etc.); the role each parent has played and will play in the childs care; each

parents ability to support the child's contact and relationship with the other parent; each parents

ability to resolve disputes regarding the child; the childs preference; any history of abuse; and

the health, safety, and welfare of the child. A childs preference in matters of custody is generally

20 Flavia Agnes, Family Law II: Marriage, Divorce and Matrimonial Litigation (2011), Oxford
University Press: New Delhi, p. 255.
taken into consideration if the child is sufficiently intelligent and mature. 21 A number of

jurisdictions require divorcing parents (either jointly or individually) to submit a shared

parenting plan to the court. The plan must address major areas of decision making, including: the

childs education; the child's health care; religious upbringing; procedures for resolving disputes

between the parties with respect to child-raising decisions and duties; and the periods of time

during which each party will have the child reside or visit with him, including holidays and

vacations, or the procedure by which such periods of time shall be determined. The parenting

plan itself is not a legal document; it must be approved by a court to have legal effect.22

21 VA. CODE ANN. 20-124.3(8)

22 0 MASS. GEN. LAWS ch. 208, 31

 CONCLUSION

Although the concept of Joint Custody of Children is fairly new in India, it can be seen as one

with both merits and demerits. On the one hand, it provides the child with both the father and the

mother as parents who are not only legally responsible for the child but also play an imperative

role in his or her upbringing. On the other hand, it could give rise to several practical problems of

the child being affected in case the parents have long-lasting issues that interfere with their

interaction with the child. Also, in the Indian context, it must be taken into account that divorce

is not always obtained by mutual consent and that two warring parents cannot look after the child

at once. However, the option must be given to the judges to decide based on the merits of each

case.
 BIBLIOGRAPHY

Morgenbesser, Mel and Nehls, Nadine 1971 "Joint Custody", Nelson Hall, Chicago.

TROST, J. (1982). Joint Custody of Children. Journal of Comparative Family Studies, 13(2),

199-208.

Hagen, Jan L. "Proceed with Caution: Advocating Joint Custody." Social Work 32.1 (1987): 26-

30.

http://timesofindia.indiatimes.com/india/Law-panel-for-joint-custody-of-kids-in-

divorce/articleshow/47390928.cms

http://www.rediff.com/news/report/law-panel-moots-joint-custody-of-kids-but-can-it-work-in-

india/20150611.htm

http://lawcommissionofindia.nic.in/reports/Report%20No.257%20Custody%20Laws.pdf