Law Commission has recommended joint custody of child in divorce cases

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Law commission on Friday has recommended to remove the superiority of single parent and has come up with the new recommendation of joint custody of the children by the parents who are minor to both the parents if divorce happens. In India, the idea of shared parenting is not common and new to the society, the significance of commission’s recommendations regarding the new custody law should gain importance. Unless it is for the welfare of the minor no single parent will be given the right to claim to be appointed as a guardian by the court. Courts must grant joint custody of the children whenever necessary.

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Supreme Court had held in Gita Hariharan vs Reserve Bank of India that only in exceptional matters, mother will be a natural guardian when the father is alive. This was stated after seeing the changes in the Hindu Minority and Guardianship Act and the Guardians and Wards Act. Law panel has told that to fulfil the principles of equality that has been given under Article 14 of the Constitution this has to be changed. In order to bring the laws in competence with the modern societal thinking these amendments were necessary. There should be a new chapter that has to be introduced on custody and visitation arrangements in Guardians and Wards Act, 1890 and amendments are necessary in it. Besides any personal laws that will apply to the custody matter the changes in Guardians and Wards Act 1890 is very much necessary. Under Hindu Law father was the natural guardian that exist is also being proposed to amend under 2 draft bills that are proposed by the panel. Both parents should be given equal legal status regarding the custody and guardianship. Commission also has provided certain guidelines to assist court in dealing with these kind of cases which includes whether the welfare of the child is met while deciding and the rules to be followed while mediation on these matter and what are the factors that has to be considered while determining the joint custody. Various concepts like parenting plans, visitation rights, grand parenting time and relocation of parents are all included in the guidelines of the commission.  It has also empowered the court to fix particular amount just for the child maintenance.

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by Sushma Javare.