Report No. 257
C. Reasons for Adopting Joint Custody in India
3.3.1 First, with rapid social and economic change, conjugal and familial relationships are becoming more complex and so are the conditions of their dissolution. As these social changes that affect family life escalate, we need to update the laws governing the family relationships, during and after the marriage. At present, our legal framework for custody is based on the assumption that custody can be vested with either one of the contesting parties and suitability is determined in a comparative manner.80
But, just as the basis for dissolving marriage has shifted over time, from fault-based divorce to mutual consent divorce, we need to think about custody differently and provide for a broader framework within which divorcing parents and children can decide what custodial arrangement works best for them.
80 Swati Deshpande, Divorced Dads Unite for Custody Rights, Times of India (Sept. 9, 2009),
http://timesofindia.indiatimes.com/india/Divorced-dads-unite-for-custody-rights/articleshow/4988614.cms
("Their experience is that family courts often swing totally one way or the other as child-custody battles usually end with one parent getting full control over the minor; the other parent is allowed only partial access during weekends or school holidays.").
3.3.2 Second, the judicial attitude towards custody matters has evolved considerably. As legal scholar and activist, Flavia Agnes notes, In modern day custody battles, neither the father, as the traditional natural guardian, nor the mother, as the biologically equipped parent to care for the child of tender age, are routinely awarded custody. The principle, best interest of the child takes into consideration the existing living arrangements and home environment of the child. ... Each case will be decided on its own merit, taking into account the overall social, educational and emotional needs, of the child.81
81 Flavia Agnes, Family Law II: Marriage, Divorce and Matrimonial Litigation (2011), Oxford University Press: New Delhi, p. 255.
3.3.3 But despite this development in judicial attitude, we have ignored the idea that under certain favourable circumstances, the best interest of the child could also result from simultaneous association with both the parents. Since there is no inherent contradiction between pursuing the best interest of the child and the concept of shared custody, the law needs to provide for this option, provided certain basic conditions are met.
3.3.4 Third, as already mentioned, a number of institutions, including the judiciary, have already started engaging with the idea of shared custody. We have referred to some of these recent developments above. But currently this idea is being put into practice in a haphazard manner. There are several components to the idea of shared custody, such as clear determinants of the best interest of the child standard, the role of judges and mediators, parenting plans and so on.
These must be laid down in the law, in order for shared custody to be a viable option that facilitates divorcing parents to mutually agree on the preferred custodial arrangement, without compromising on the welfare of the child.
3.3.5 In the legal systems of several Western countries that we have reviewed in this chapter, there is a presumption in favour of joint custody, and sole custody is awarded only in exceptional circumstances. We have already referred to the inequalities in parental roles, responsibilities and expectations that exists in our country. Therefore, we are not in favour of the law placing a presumption in favour of joint custody.
As opposed to the case of guardianship, where we have recommended shared and equal guardianship for both parents, in this case, we are of the view that joint custody must be provided as an option that a decision-maker can award, if the decision-maker is convinced that it shall further the welfare of the child.
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