Report No. 257

B. Joint Custody in India

3.2.1 Although joint custody is not specifically provided for in Indian law, it is reported by lawyers that Family Court judges do use this concept at times to decide custody disputes. 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 child's long term care, welfare and development.78

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

3.2.2 Although the guidelines state that this understanding of joint custody is consistent with the CRC, it must be noted that there can be no straitjacket formula that can be applied universally to all cases of custody.

3.2.3 The second example of joint custody is found in a 2011 judgement of the Karnataka High Court, which used the concept to resolve a custody dispute involving twelve-year old boy. In KM Vinaya v. B Srinivas, MFA No. 1729/ 2011, Karnataka High Court, Judgement dated Sept. 13, 2013, a two-judge bench ruled that both parents are entitled to get custody "for the sustainable growth of the minor child." Joint custody was effected in the following manner:

• The minor child was directed to be with the father from 1 January to 30 June and with the mother from 1 July to 31 December of every year.
• The parents were directed to share equally the education and other expenditures of the child.
• Each parent was given visitation rights on Saturdays and Sundays when the child was living with the other parent.
• The child was to be allowed to use telephone or video conferencing with each parent while living with the other.

3.2.4 In addition to the above examples, there has been a growing demand to institute shared custody in India, from 'father's rights' groups, who argue that the Indian family laws, including the law of custody, are biased towards the mothers. Consequently, these groups demand that fathers must have 'equal rights' over custody of children. This assertion about the law being biased towards the mothers is not only factually incorrect, but the demand is also based on a faulty understanding of equality in our constitutional and legal framework.

As we have discussed below, the father is still deemed the natural guardian under both religious and secular family laws, while the mother is not. Further, in our society, equality in conjugal and family life is still a distant dream. A large number of women continue to disproportionately bear the burden of housework and childcare, even when they have a paid employment outside the home.

Thus, when during the subsistence of marriage, there is no equality in parental and caregiving responsibilities, then on what ground can one claim equality in parental rights over children after the dissolution of the marriage? Our Constitution and the legal framework direct the state to pursue substantive equality. Substantive equality recognizes the difference in the socio-economic position of the sexes within the home and outside of it, and aspires to achieve equality of results. We therefore reject the position of the father's rights groups on shared parenting based on the rhetoric of equal rights over children.

3.2.5 Having said that, however, we feel it is important to consider the potentials of the shared parenting model in India for several other reasons, discussed below.