Reforms on Guardianship and Custody Laws in India: Recommendations

Reforms on Guardianship and Custody Laws in India: Recommendations

Question: The Law Commission of India has submitted its Report No. 257 on “Reforms in Guardianship and Custody Laws in India” to the Union Minister of Law and Justice. Examine the main recommendations of this report

• The report has made amendments to existing laws regarding child welfare in custody and guardianship matters

• The report has also included the concept of joint custody

• Courts in India have recognised the welfare principal but the framework for this is wanting

• Joint custody arrangements are rarely considered

• Problems in court decisions are compounded by law inconsistencies for example Hindu Minority and Guardianship Act 1956 views the welfare of the child to be of integral importance, but the Guardians and Wards Act 1890 does not contain any such provision

• The report of the Law Commission recommends legislative amendments to the Guardians and Wards Act as well as the Hindu Minority and Guardianship Act 1956

• Amendments are in line with bringing laws in accordance with modern social justice considerations

• Commission holds that Guardians and Wards Act 1890 is relevant for all custody proceedings apart from personal laws

• The report includes amendments to concepts pertaining to joint custody and child welfare such as:
- Child Support
- Mediation Processes
- Parenting Plans
- Grand Parent Time

• The draft law strengthens the welfare principle in the Guardians and Wards Act 1890 with continued emphasis on relevance in each aspect of guardianship as well as custodial decision making

• Draft law also removes the preference for the father as the natural guardian under Hindu Law. Both parents are accorded equal legal status with regard to guardianship and custody

• Draft law also gives courts the power to award joint custody to both parents in ways conducive to child welfare or award sole custody to one parent and visitation rights to another

• Parties to the custody matter must also consider expert led, time bound mediations that can promote better outcomes for parent and children, while reducing the strain on an overburdened court system

• Draft law also provides empowerment to courts to adjudge an amount for child support to meet basic living expenses

• Financial resources of parents and living standards of the family are to be factored in while fixing these amounts

• Child support may continue till child turns 18 but extended till 25 or longer in case the child suffers from a mental or physical disability

• Draft law also includes comprehensive guidelines for helping courts, parents as well as stakeholders to meet the child welfare needs

• Intelligent preference of the child as well as access to records of children and mediation are the grounds for deciding visitation rights and relocation as per this report

Facts and Stats

• Law Commission views both the mother as well as the father as natural guardians of the child

• It has recommended changes to sections 6 and 7 of the Hindu Minority and Guardians Act 1956

• Section 17 and 25 of the Guardians Ward Act have also been recommended for amendment as per the 257th Law Commission report

• Chapter IIA has been introduced which deals with custody, visitation rights and child support