Report No. 257

Reforms in Guardianship and Custody Laws in India

Chapter I

Background to the Report

1.1 This report of the Law Commission of India recommends a number of legislative amendments to emphasize the "welfare of the child" as the paramount consideration in adjudicating custody and guardianship matters. The worst affected in proceedings of divorce and family breakdowns are the children. Maintaining the central importance of the welfare of the child in proceedings of custody will help ensure that the child's future is safe and protected, regardless of changing familial circumstances.

The courts in India have also arrived at similar conclusions. For instance, the Bombay High Court held that for determining the final decree, the child's welfare was the supreme consideration, irrespective of the rights and wrongs that the parents contend. Carla Gannon v. Shabaz Farukh Allarakhia, Bombay High Court, Criminal Writ Petition No. 509 of 2009.

The Supreme Court has 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 that the tie of affection cannot be disregarded. Nil Ratan Kundu v. Abhijit Kundu AIR 2009 SC (Supp) 732. Over the years, the non-negotiable principle on the basis of which cases of custody of children are decided is that of the 'best interest and welfare of the child' which attempts to enable each child to survive and reach his or her full potential.3

3 Principle 4, Rule 3, Juvenile Justice (Care and Protection of Children) Rules, 2007.

1.2 Despite its widespread recognition as a relevant consideration, the manner in which the welfare principle occurs in our legal and judicial framework, has certain problems, which need legislative redressal. First, there is disparity in the relevance accorded to this principle by different legislations regulating custody and guardianship. Second, there is uncertainty and lack of judicial consensus on what exactly constitutes welfare of the child, as a result, in fiercely fought custody battles, there are no ways to ensure that the interests of the child are actually protected.

Third, the legal framework is silent on how should custody issues be handled, what factors should be relevant in decision-making, and what should be the process of dispute resolution between parents over children, among others. Fourth, although there are no codified rules governing custody, decision-making in this area is based on the presumption that welfare of the child essentially lies in custody being awarded to any one of the parents, assessed comparatively.

1.3 This report of the Law Commission reviews the current laws dealing with custody and guardianship, namely, the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956, and recommends legislative amendments to achieve the following objectives:

• Strengthen the welfare principle in the Guardians and Wards Act, 1890 and emphasize its relevance in each aspect of guardianship and custody related decision-making.
• Provide for equal legal status of both parents with respect to guardianship and custody.
• Provide detailed guidelines to help decision-makers assess what custodial and guardianship arrangement serves the welfare of the child in specific situations.
• Provide for the option of awarding joint custody to both parents, in certain circumstances conducive to the welfare of the child.