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Entries in India (1)

Monday
Jun012015

Indian Law Commission proposes custody law that promotes shared parenting

The Law Commission of India has just published the results of their recent consultation on laws regarding custody and guardianship of children.  This supports equal legal status of fathers and mothers, giving a significant boost to shared parenting in the second most populous country in the world.

Their conclusions support providing for equal legal status of both parents with respect to guardianship and custody; providing detailed guidelines to help decision-makers assess what custodial and guardianship arrangement serves the welfare of the child in specific situations; and providing for the option of awarding joint custody to both parents, in certain circumstances conducive to the welfare of the child.

The Indian Supreme Court has already said that the welfare of a child is not to be measured merely by money or physical comfort, but the word welfare must be taken in its widest sense so that the tie of affection cannot be disregarded.

The consultation report notes that a number of countries across the globe have adopted a preference for shared parenting systems over sole custody as a post-divorce arrangement with respect to children, and cites the example of Idaho State Code, which states “Except as provided in subsection (5), of this section, absent a preponderance of the evidence to the contrary, there shall be a presumption that joint custody is in the best interests of a minor child or children.”).

The consultation also notes the current situation in Hindu, Islamic, Parsi and Christian religions law.

Of the 125 responses to the India consultation, most were in favour of shared custody, with comments such as "Gender-based stereotypes—e.g., that a girl child should be raised by the mother and a boy child by the father—are outdated. Both parents have valuable contributions to make in the lives of children of either gender".

The Indian Government will now consider amendments to the Hindu Minority and Guardians Act, 1956, the Guardians and Wards Act, 1890 alongside two new bills: The Hindu Minority and Guardianship (Amendment) Bill, 2015 and The Guardians and Wards (Amendment) Bill, 2015.