DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

FAMILY LAW -I
FINAL DRAFT

TOPIC: JOINT CUSTODY

Submitted to- Submitted by-

Dr. Samreen Houssain Tulika Gupta

Assistant Professor of Law, Roll no.-180101150

Dr. Ram Manohar Lohiya National law B.A.LL.B. (Hons.) 2nd year

University, Lucknow III Semester

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 Table of Contents

 Index of Authorities

 Introduction

 Statutory Law

 Judicial Interpretations

 International Approaches to Joint Custody

 Joint Custody of Children in India

 Reasons for adopting this Concept

 Considerations while deciding Child Custody Cases

 Conclusion

 Bibliography

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 INDEX OF AUTHORITIES

Cases

Braiman v. Braiman, 44 N.Y.2d 584 (1978)................................................................................... 7

Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228, ¶ 25 ................................................ 4
Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228......................................................... 4
KM Vinaya v. B Srinivas, 2010 SCC OnLine Kar 2248. ............................................................... 7
L. Chandran v. Venkatalakshmi, AIR 1981 AP 1........................................................................... 6
Md. Jameel Ahmed Ansari v. Ishrath Sajeeda, AIR 1983 AP 106. ................................................ 6
Soora Beddi v. Cheema Reddy, AIR 1950 Mad 306. ..................................................................... 5
Suharabi v. D. Mohammed, AIR 1988 Ker 36. .............................................................................. 6
Vegesina Venkata Narasiah v. Chintalpati, AIR 1971 AP 134. ..................................................... 5

Statutes

Australia, Family Law Act, 1975 § 61DA. ..................................................................................... 7

Guardian and Wards Act, No. 8 of 1890, § 17(1). .......................................................................... 3
Guardian and Wards Act, No. 8 of 1890, § 7. ................................................................................ 3
Hindu Minority and Guardianship Act, No. 32 of 1956, § 13. ....................................................... 5
Hindu Minority and Guardianship Act, No. 32 of 1956, § 6(a)...................................................... 4
Personal Laws (Amendment) Act, No. 30 of 2010, § 2. ................................................................. 4

Other Authorities

A Barrat and S Burman,“Deciding the Best Interests of the Child” 118 South African Law Journal
(2001) .......................................................................................................................................... 7
Child Rights Foundation, Child Access and Custody Guidelines (2011), available at
http://www.mphc.in/pdf/ChildAccess-040312.pdf, p. 24. .......................................................... 7
Swati Deshpande, Divorced Dads Unite for Custody Rights, Times of India (Sept. 9, 2009),
http://timesofindia.indiatimes.com/india/Divorced-dads-unite-for-
custodyrights/articleshow/4988614.cms. .................................................................................... 7

Books

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Flavia Agnes, Family Law II: Marriage, Divorce and Matrimonial Litigation (2011), Oxford
University Press: New Delhi, p. 255. .......................................................................................... 8
Morgenbesser, Mel and Nehls, Nadine 1971 "Joint Custody", Nelson Hall, Chicago ................... 3
Paras Diwan, LAW OF ADOPTION, MINORITY, GUARDIANSHIP & CUSTODY (2012)
Universal Law Publishing Co.: New Delhi, at P. xvi. ................................................................ 5

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 INTRODUCTION

The 20th Law Commission has mooted the concept of shared parenting and joint custody rights to
a child in case the parents opt for a divorce, both parents have equal access to the child and there
should be no restricted visiting periods for a parent who does not have rights. While parents are
natural guardians of their children, the primary caretaker of young children is more often the
mother who takes care of the child's emotional and educational needs. This has made retired Justice
A P Shah, chairman of the 20th Law Commission, propose sweeping amendments to the existing
guardianship and custody law in order to make it more compatible with changing times.

Morgenbesser and Nehls define joint custody as when "both divorced parents share the rights and
responsibilities for raising their child or children".1 They go on specifying that the legal concept
"attempts to guarantee divorced parents an equal say in decision-making and in overall child
rearing". We can here again see quite a difference from the view of the Swedish horizon, i.e. that
with a joint custody both the overall meaning and the legal concept goes into the practical matters
of sharing, of decision-making, and of rights and responsibilities. In their discussion of what joint
custody is, Morgenbesser and Nehls differentiate between the term co-parenting and joint custody.
They mean that it is of importance not to confuse those two terms. For them co-parenting means
the legal custody granted to one of the parents but the true custody shared between the two. For
Morgenbesser and Nehls (1981) joint custody is classified as legal custody to both parents
independent of the true custody. Sole custody is for them when the legal custody is only with one
of the parents.

STATUTORY LAW

Section 7 of the Guardianship and Wards Act authorizes the court to appoint a guardian for the
person or property or both of a minor, if it is satisfied that it is necessary for the ‘welfare of the
minor.’2 Section 17(1)3 states that courts shall be guided by what the personal law of the minor
provides and what, in the circumstances of the case, appears to be for the ‘welfare of the minor.’
The earlier Section 19(b) prevented the court from appointing a guardian in case the father of the
minor was alive. This clause was amended by the Personal Laws (Amendment) Act, 2010 and was

1
Morgenbesser, Mel and Nehls, Nadine 1971 "Joint Custody", Nelson Hall, Chicago.
2
Guardian and Wards Act, No. 8 of 1890, § 7.
3
Guardian and Wards Act, No. 8 of 1890, § 17(1).

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made applicable to cases where even the mother was alive, thus removing the preferential position
of the father.4

Reading the above provisions together, it can be concluded that, in appointing a guardian to the
person or property of a minor under the GWA, courts are to be guided by concern for the welfare
of the minor/ward. This is evident from the language of Sections 7 and 17. At the same time, the
implication of Section 19(b) is that, unless the court finds the father or mother to be particularly
unfit to be a guardian, it cannot exercise its authority to appoint anyone else as the guardian. Thus,
power of the court to act in furtherance of the welfare of the minor must defer to the authority of
the parent to act as the guardian.

In modern statutory Hindu law, the Hindu Minority and Guardianship Act, 1956 (hereinafter,
HMGA) provides that the father is the natural guardian of a minor, and after him, it is the mother.
Section 6(a)5 of the HMGA provides that: (1) in case of a minor boy or unmarried minor girl, the
natural guardian is the father, and ‘after’ him, the mother; and (2) the custody of a minor who has
not completed the age of five years shall ‘ordinarily’ be with the mother (emphasis added).

In Gita Hariharan v. Reserve Bank of India,6 the constitutional validity of Section 6(a) was
challenged as violating the guarantee of equality of sexes under Article 14 of the Constitution of
India. The Supreme Court considered the import of the word ‘after’ and examined whether, as per
the scheme of the statute, the mother was disentitled from being a natural guardian during the
lifetime of the father. The Court observed that the term ‘after’ must be interpreted in light of the
principle that the welfare of the minor is the paramount consideration and the constitutional
mandate of equality between men and women. The Court held the term ‘after’ in Section 6(a)
should not be interpreted to mean ‘after the lifetime of the father,’ but rather that it should be taken
to mean ‘in the absence of the father.’ The Court further specified that ‘absence’ could be
understood as temporary or otherwise or total apathy of the father towards the child or even
inability of the father by reason of ailment or otherwise.7 Therefore, in the above specific
situations, the mother could be the natural guardian even during the lifetime of the father. Section

4
Personal Laws (Amendment) Act, No. 30 of 2010, § 2.
5
Hindu Minority and Guardianship Act, No. 32 of 1956, § 6(a).
6
Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.
7
Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228, ¶ 25.

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13 of the HMGA declares that, in deciding the guardianship of a Hindu minor, the welfare of the
minor shall be the ‘paramount consideration’ and that no person can be appointed as guardian of
a Hindu minor if the court is of the opinion that it will not be for the ‘welfare’ of the minor.8

First, the father continues to have a preferential position when it comes to natural guardianship
and the mother becomes a natural guardian only in exceptional circumstances, as the Supreme
Court explained in Gita Hariharan. Thus, even if a mother has custody of the minor since birth and
has been exclusively responsible for the care of the minor, the father can, at any time, claim custody
on the basis of his superior guardianship rights. Under the GWA, parental authority supersedes the
welfare principle, while under the HMGA, the welfare principle is of paramount consideration in
determining guardianship. Section 26 of the Hindu Marriage Act authorizes courts to pass interim
orders in any proceeding under the Act, with respect to custody, maintenance and education of
minor children, in consonance with their wishes.

In Islamic law, the father is the natural guardian, but custody vests with the mother until the son
reaches the age of seven and the daughter reaches puberty. Islamic law is the earliest legal system
to provide for a clear distinction between guardianship and custody, and also for explicit
recognition of the right of the mother to custody.9

JUDICIAL INTERPRETATIONS

In a 1950 decision under the GWA, the Madras High Court awarded custody to the mother based
on the welfare principle, even though the father was not found unfit to be a guardian.10 Courts have
held that in deciding custody, children should not be uprooted from their familiar surroundings
just to give effect to the father’s right to natural guardianship. 11 In a case where the child was
brought up by the maternal grandparents after the death of the mother, the Andhra Pradesh High
Court held that, in view of Article 21 of the Constitution, children cannot be treated as chattel and
the father’s unconditional right to the custody over children and their property cannot be enforced,

8
Hindu Minority and Guardianship Act, No. 32 of 1956, § 13.
9
Paras Diwan, LAW OF ADOPTION, MINORITY, GUARDIANSHIP & CUSTODY (2012) Universal Law
Publishing Co.: New Delhi, at P. xvi.
10
Soora Beddi v. Cheema Reddy, AIR 1950 Mad 306.
11
Vegesina Venkata Narasiah v. Chintalpati, AIR 1971 AP 134.

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even if the father was not unfit to act as the guardian.12 In Suharabi v. D. Mohammed,13 where the
father objected to the mother’s custody of the one-and-a-half year-old daughter on the ground that
she was poor, the Kerala High Court held that the mother was authorized to have custody of a
daughter of that age under Islamic law. In similar vein, in Md. Jameel Ahmed Ansari v. Ishrath
Sajeeda,14 the Andhra Pradesh High Court awarded the custody of an eleven-year-old boy to the
father, on the ground that Muslim law allowed the mother to have exclusive custody only until the
age of seven in case of male children, and there was nothing to prove that the father was unfit to
be a guardian in this case.

Two problems can be noted with the legal and judicial framework described above. The first is the
superior position of the father in case of guardianship, though not necessarily in case of custody.
The second is the indeterminacy of the welfare of the child principle, despite its widespread usage.

INTERNATIONAL APPROACHES TO JOINT CUSTODY

The term “joint custody” can refer to several different things: joint legal custody, joint physical
custody, or a combination of both. The definition in the State of Virginia recognizes this: “Joint
custody” means (i) joint legal custody where both parents retain joint responsibility for the care
and control of the child and joint authority to make decisions concerning the child even though the
child's primary residence may be with only one parent, (ii) joint physical custody where both
parents share physical and custodial care of the child, or (iii) any combination of joint legal and
joint physical custody which the court deems to be in the best interest of the child. The State of
California has the following definitions:

“Sole legal custody” means that one parent shall have the right and the responsibility to make the
decisions relating to the health, education, and welfare of a child. “Sole physical custody” means
that a child shall reside with and be under the supervision of one parent, subject to the power of
the court to order visitation. Some have a presumption that shared parenting is in the best interest
of the child—Australia’s Family Law Act, for example, states that, “When making a parenting

12
L. Chandran v. Venkatalakshmi, AIR 1981 AP 1.
13
Suharabi v. D. Mohammed, AIR 1988 Ker 36.
14
Md. Jameel Ahmed Ansari v. Ishrath Sajeeda, AIR 1983 AP 106.

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order in relation to a child, the court must apply a presumption that it is in the best interests of the
child for the child's parents to have equal shared parental responsibility for the child.”15

A US Court of Appeals noted in Braiman v Braiman: Joint custody is encouraged primarily as a

voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion.
As a court-ordered arrangement imposed upon already embattled and embittered parents, accusing
one another of serious vices and wrongs, it can only enhance familial chaos. 16 Family courts in
South Africa, for example, do not frequently award joint physical custody of children on the basis
that such an arrangement would be disruptive for the child, particularly in cases where the parents
live far apart.17

JOINT CUSTODY IN INDIA

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.18 The second example of joint custody is found
in a judgment of KM Vinaya v. B Srinivas19 the Karnataka High Court, which used the concept to
resolve a custody dispute involving twelve-year old boy.

REASONS FOR ADOPTING THIS CONCEPT

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. 20
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

15
Australia, Family Law Act, 1975 § 61DA.
16
Braiman v. Braiman, 44 N.Y.2d 584 (1978).
17
A Barrat and S Burman,“Deciding the Best Interests of the Child” 118 South African Law Journal (2001).
18
Child Rights Foundation, Child Access and Custody Guidelines (2011), available at
http://www.mphc.in/pdf/ChildAccess-040312.pdf, p. 24.
19
KM Vinaya v. B Srinivas, 2010 SCC OnLine Kar 2248.
20
Swati Deshpande, Divorced Dads Unite for Custody Rights, Times of India (Sept. 9, 2009),
http://timesofindia.indiatimes.com/india/Divorced-dads-unite-for-custodyrights/articleshow/4988614.cms.

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framework within which divorcing parents and children can decide what custodial arrangement
works best for them. 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.21
In the legal systems of several Western countries, there is a presumption in favor of joint custody,
and sole custody is awarded only in exceptional circumstances. We have already aware of the
inequalities in parental roles, responsibilities and expectations that exists in our country. Therefore,
we are not in favor 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.

CONSIDERATIONS WHILE DECIDING CHILD CUSTODY CASES

A number of jurisdictions have statutes that enumerate specific factors to guide courts when they
consider the best interests of a child. Generally, these factors relate to: the physical and mental
condition of the child; the physical and mental condition of each parent; the child’s relationship
with each parent; the needs of child regarding other important people (siblings, extended family
members, peers, etc.); the role each parent has played and will play in the child’s care; each
parent’s ability to support the child's contact and relationship with the other parent; each parent’s
ability to resolve disputes regarding the child; the child’s preference; any history of abuse; and the
health, safety, and welfare of the child. A child’s preference in matters of custody is generally
taken into consideration if the child is sufficiently intelligent and mature. A number of jurisdictions
require divorcing parents (either jointly or individually) to submit a shared parenting plan to the
court. The plan must address major areas of decision making, including: the child’s education; the
child's health care; religious upbringing; procedures for resolving disputes between the parties with
respect to child-raising decisions and duties; and the periods of time during which each party will

21
Flavia Agnes, Family Law II: Marriage, Divorce and Matrimonial Litigation (2011), Oxford University Press:
New Delhi, p. 255.

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have the child reside or visit with him, including holidays and vacations, or the procedure by which
such periods of time shall be determined. The parenting plan itself is not a legal document; it must
be approved by a court to have legal effect.

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 CONCLUSION

Although the concept of Joint Custody of Children is fairly new in India, it can be seen as one with
both merits and demerits. On the one hand, it provides the child with both the father and the mother
as parents who are not only legally responsible for the child but also play an imperative role in his
or her upbringing. On the other hand, it could give rise to several practical problems of the child
being affected in case the parents have long-lasting issues that interfere with their interaction with
the child. Also, in the Indian context, it must be taken into account that divorce is not always
obtained by mutual consent and that two warring parents cannot look after the child at once.
However, the option must be given to the judges to decide based on the merits of each case.

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 BIBLIOGRAPHY

 TROST, J. (1982). Joint Custody of Children. Journal of Comparative Family

Studies, 13(2), 199-208.
 Hagen, Jan L. "Proceed with Caution: Advocating Joint Custody." Social Work 32.1
(1987): 26-30.
 http://timesofindia.indiatimes.com/india/Law-panel-for-joint-custody-of-kids-in-
divorce/articleshow/47390928.cms
 http://www.rediff.com/news/report/law-panel-moots-joint-custody-of-kids-but-can-it-
work-in-india/20150611.htm
 http://lawcommissionofindia.nic.in/reports/Report%20No.257%20Custody%20Laws.pdf

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