Subsequent to Law Commission of India’s invitation to public in Nov 2014 to comment on its consultation paper about custody law reform in India, it has recently released its recommendations to the Law Ministry on amending both Hindu Minority and Guardianship Act, 1956 and Guardians and Wards Act, 1890. Full PDF of report is given below (linked from Law Commission’s website):
Law Commission of India Report no 257. Reforms in Guardianship and Custody Laws in India. May 2015
As per the report, there were 125 responses to Law Commission’s invitation for comments. In a country of 1.25 billion, there were only 125 responses! I am not sure if they are counting the responses sent via emails , because the number 125 seems too low. Anyway, maybe someone can file an RTI to get those details.
The good point is that most responses were received in favour of shared parenting and joint custody, and relatively few against it.
Here’s a summary of the responses received reproduced from the report (Page 13-15):
D.Summary of Responses received by the
1.7.1 Of the 125 responses, most were in favour of
shared custody. Some of the reasons for this were:
Children need both their mother and father—they
seek advice from each parent in different
Children need adequate opportunities to bond
with each parent.
Shared physical custody without shared legal
custody will lead a child to believe that the parents
do not have equal moral authority. Shared legal
custody without shared physical custody will
prevent a child from bonding with both parents.
Shared custody can reduce acrimony between the
Some women misuse the protections in Protection
of Women from Domestic Violence Act, 2005 and
Section 498A of the Indian Penal Code, to take
children away from their fathers. However, in
shared custody arrangements, parental contact
would be withheld only for child abuse, neglect, or
mental illness. Children should have contact with
both parents regardless of whether the parents
Gender-based stereotypes—e.g., that a girl child
should be raised by the mother and a boy child by
the father—are outdated. Both parents have
valuable contributions to make in the lives of
children of either gender.
1.7.2 A few reasons were given against a shared
During divorce proceedings, husbands use child
custody to force their wives to give up maintenance
or withdraw criminal complaints.
It is not healthy for a child to move between two
homes. A stable, anchored home is the best option.
In a patriarchal society where women and children
are often harassed, ensuring the child’s safety
could be a problem.
Where parents have unresolved issues, they will
not be able to agree on joint decisions for the child.
India does not have the necessary supportive
measures, such as: laws for division of
matrimonial property; the right to reside in the
matrimonial home; a financial plan for the future
security of the caretaker spouse; and foster homes
for the children.
It could be used to harass women.
1.7.3 Several respondents had suggestions on how
to implement a shared parenting system in India:
Courts are not well suited to adjudicate custody
disputes. Instead, mediation centres should be set
up, staffed by people trained in advising parties on
issues pertaining to children and relationships.
Lawyers will just make the situation worse.
Parents should have to submit a “Parenting Plan”
which provides the personal profile, educational
qualification, residence, and income of both
Parents should open a joint bank account that can
only be used for the child’s expenses.
It is matter of some satisfaction that some of the recommendations published on this site (and probably sent by many to Law Commission) have been acknowledged in the report of Law Commission:
Page 15, Sec 1.7.1
Gender-based stereotypes—e.g., that a girl child should be raised by the mother and a boy child by the father—are outdated. Both parents have valuable contributions to make in the lives of children of either gender.
Page 15, Sec 1.7.3:
Parents should open a joint bank account that can only be used for the child’s expenses.
Gist of amendments to the Hindu Minority and Guardianship Act, 1956 and Guardians and Wards Act, 1890
Upon quick reading of the report, I find that the gist of the recommendations are of the following nature:
1. Some of the proposed amendments aim to codify the existing case law into statutes so that the custody decisions are taken based on sole and paramount consideration of welfare of the child, so any references to father being natural guardian etc are being replaced with both parents as being guardians.
The Law Commission specifically pointed out that fathers can’t be given superior status in statute by being considered as natural guardians as per HMGA, 1956; and they mentioned Article 14 of the constitution citing equality before law. So now men should demand the same from Law Commission on every existing and newly proposed law that Article 14 of the constitution must be respected and all terms of woman/man should be replaced by spouse/person in thus far exclusively women protection laws like PWDVA (DV Act) and Sexual Harassment laws, so that they can protect both genders equally. If Law commission believes in the principle of equality before law, then why not apply the same and amend the DV Act and Sexual harassment law too?
2. The sections being added on joint custody (both legal guardianship and physical custody), are completely new.
3. The objectives of the amendment clearly mention the benefits of joint custody for children, so at least the lawyers and judges will not have an excuse to refer to objectives of the legislation to push for or justify a decision against joint custody. They will have to work harder referring to the actual clauses in the statute.
4. The most troublesome part of the legislation is about section on “I. FACTORS TO BE CONSIDERED FOR GRANT OF JOINT CUSTODY”, which has clauses like ability and willingness of parents to cooperate towards a joint custody plan, the extent to which parents can work together; which means that most custody plans in cases of contested divorces being filed will necessarily go into long litigation and necessarily fail. Most of these contested divorces have DV cases, IPC 498A/406 and other legislations being used against husband; and with the laudable but ever-elusive goal called ‘women empowerment’ being a consideration in society’s and judiciary’s mind, it is a foregone conclusion that non-cooperation and destructive behaviour by mothers will be pardoned or taken lightly, and a conclusion will be made that a joint-custody arrangement will not be workable. These clauses will be relied upon by divorce industry, to show that things cannot be worked out and the faults in non-cooperative attitude lies not with the mother but on stars in the sky and un-auspicious planetary arrangements. In that case, probably another 5-7 years may pass before some precedents in favour of fathers (and better welfare of children) can be achieved.
5. The positive parts of the proposed amendment is that there are specific decision making points which are to be made part of in arriving upon custody decisions, so judges will not have so much discretion in writing an order first, and then giving some gut-feel type of reasons without referring to the detailed facts of the situation as now proposed Decision Making section. This will necessarily work in favour of fathers, and children; because from where things stand right now, they can only improve.
6. A new term child support is being introduced, and this new term will now allow for possibility of fathers being asked to pay child support till the child attains 25 years of age. So all those with children who were thinking of getting rid of troublesome wives, now be prepared to work and earn enough to be able to pay child support till children attain 25 years of age!
7. Joint custody decision will also depend on “intelligent preference” being expressed by the child. The definition of intelligent preference has been left out, so expect another 5-10 years of court cases before this term is sorted out in the new case laws. But at least they didn’t say just preference of the child which is meaningless when the child is being alienated against fathers mostly, and that preference is a forced preference.
8. Fathers will not be denied access (without court order to the contrary) to records of the child like medical, dental, and school records.
9. Grandparents have to file for grand-parenting time with children separately. It all seems just like the Western countries where parents and grandparents live separately, so now everyone has to file their own court cases, and hopefully the grand parents can also spend some quality time in their old age waiting around in the courts!
10. Parenting plan will be made by parents which will involve division of responsibilities and decision making for child, and also outline about the practical issues in visitation, shared custody, and such issues. I guess the lawyers will definitely have additional fees coming their way.
11. For deciding upon visitation (in cases joint custody doesn’t work out), court will again have to look at practical factors like age of child, distance between parents’ homes etc; and the good part is that it makes it mandatory that child has regular and ‘equal’ access and time with both parents.
12. I have left out any comments about mediation and such in the amendment, since I don’t think of them as a kind of mediation in reality; because in India even after alleged non-bailable crimes there can be mediation arranged between ‘parties’, and for crimes of (Technical) Rape, there can be compromise (by paying money) or even marriage arranged between ‘rape accused’ and ‘rape victim’. But what do I know, hope lives eternal!
Proposed amendments to the Hindu Minority and Guardianship Act, 1956 and Guardians and Wards Act, 1890
In previous section I had outlined my understanding of the main points of the proposed amendments. Below are reproduced in full the proposed amendment bills to Hindu Minority and Guardianship Act, 1956 and Guardians and Wards Act, 1890 as given in Annexures I and II of the report, respectively:
THE HINDU MINORITY AND GUARDIANSHIP
(AMENDMENT) BILL, 2015
further to amend the Hindu Minority and Guardianship
Be it enacted in the Sixty-sixth year of the Republic
S HORT TITLE 1. This Act may be called the Hindu Minority and
Guardianship (Amendment) Act, 2015.
A MENDMENT OF 2. In the Hindu Minority and Guardianship Act, 1956
S ECTION 6 (hereinafter referred to as the principal Act) in section
(1) for clause (a), the following clause shall be
“(a) in the case of a boy or an unmarried girl – the
mother and the father;”;
(2) the Explanation shall be numbered as Explanation
1, and after the Explanation as so numbered, the
following Explanation shall be inserted, namely:–
“Explanation 2.– For the purpose of clause (a), unless
joint custody is granted by the court under Chapter
IIA of the Guardians and Wards Act, 1890, the custody
of a minor who has not completed the age of five years
shall ordinarily be with the mother.”
S UBSTITUTION OF 3. In the principal Act, for section 7, the following
N EW S ECTION section shall be substituted, namely:–
FOR ECTION 7 “(7) Natural guardianship of adopted child. – The
natural guardianship of an adopted child who is a
minor passes, on adoption, to the adoptive mother and
THE GUARDIANS AND WARDS (AMENDMENT)
further to amend the Guardians and Wards Act, 1890
Be it enacted in the Sixty-sixth year of the Republic
S HORT TITLE 1. This Act may be called the Guardians and Wards
(Amendment) Act, 2015.
A MENDMENT OF 2. In the Guardians and Wards Act, 1890 (hereinafter
S ECTION 17 referred to as the principal Act), in section 17,
(i) for sub-section (1), the following sub-section shall
be substituted, namely:–
“(1) In appointing or declaring the guardian of a minor,
the welfare of the minor shall be the paramount
(ii) after sub-section (1), the following sub-section
shall be inserted, namely:–
“(1A) Subject to the provisions of sub-section (1), the
court shall have due regard to the law to which the
minor is subject, in appointing or declaring the
guardian of that minor.”
A MENDMENT OF 3. In the principal Act, in section 19, after clause (c),
S ECTION 19 the following proviso shall be inserted, namely:–
“Provided that in determining whether a person is
unfit to be a guardian under clause (a) or clause (b),
the welfare of the minor as required under sub-section
(1) of section 17 shall be the paramount
S UBSTITUTION OF 4. In the principal Act, for section 25, the following
N EW S ECTION section shall be substituted, namely:–
FOR ECTION 25 “25. Proceedings for custody of ward.
(1) Notwithstanding anything contained in section
19, if a ward leaves or is removed from the
custody of a guardian of his person, or is not in
the custody of the guardian entitled to such
custody, the court, if it is of the opinion that it
will be for the welfare of the ward to return to
the custody of his guardian or to be placed in
his custody, may make an order for his return,
or for his being placed in the custody of the
guardian, as the case may be.
(2) For the purpose of enforcing the order, the court
may exercise the power conferred on a
Magistrate of the first class by section 97 of the
Code of Criminal Procedure, 1973.
(3) The residence of a ward against the will of his
guardian with a person who is not his guardian
does not of itself terminate the guardianship.
(4) In making an order under this section, the court
shall have regard to the welfare of the ward as
the paramount consideration.
(5) The court shall not make an order under this
section in respect of a child of fourteen years or
over, without taking into consideration the
preference of the child.”
I NSERTION OF 5. In the principal Act, after Chapter II, the following
N EW HAPTER Chapter IIA shall be inserted, namely:–
“Chapter IIA: Custody, Child Support and Visitation
19A. Objectives of the Chapter.
The objectives of this Chapter are to ensure that the
welfare of a minor is met by:–
(a) ensuring that the child has the benefit of both
parents having a meaningful involvement in
his life, to the maximum extent consistent
with the welfare of the child;
(b) ensuring that the child receives adequate and
proper parenting to help achieve his full
(c) ensuring that the parents fulfil their duties,
and meet their responsibilities concerning the
care, welfare and development of the child;
(d) giving due consideration to the changing
emotional, intellectual and physical needs of
(e) encouraging both the parents to maintain a
close and continuing relationship with the
child, and to cooperate in and resolve disputes
regarding matters affecting the child;
(f) recognising that the child has the right to
know and be cared for by both the parents,
regardless of whether the parents are married,
separated, or unmarried; and
(g) protecting the child from physical or
psychological harm or from being subjected to,
or exposed to, any abuse, neglect or family
19B. Applicability of this Chapter.
The provisions of this Chapter shall apply to all
proceedings involving parents related to custody and
child support, including such proceedings arising
under the Indian Divorce Act, 1869, the Parsi Marriage
and Divorce Act, 1936, and the Hindu Marriage Act,
For the purpose of this Chapter:–
(a) “Joint custody” is where both the parents:–
i. share physical custody of the child, which
may be equally shared, or in such
proportion as the court may determine for
the welfare of the child; and
ii. equally share the joint responsibility for
the care and control of the child and joint
authority to take decisions concerning the
(b) “Sole custody” is where one parent retains
physical custody and responsibility for the care
and control of the child, subject to the power of
the court to grant visitation rights to the other
19D. Award of custody.
(1) In a proceeding to which this Chapter applies,
the court may order joint custody or sole
custody consistent with the welfare of the child.
(2) In determining whether an order under this
section will be for the welfare of the child, the
court shall have regard to the guidelines
specified in the Schedule.
(3) Subject to the welfare of the child being the
paramount consideration, the court may
modify an order under this section, and record
the reasons for doing so.
19E. Power to pass additional orders.
The court shall have the power to pass any additional
or incidental orders necessary to effectuate and
enforce any order relating to the custody of the child.
(1) The court will ordinarily refer the parents to the
court-annexed mediation centre or, in the
absence thereof, to such person as the court
may appoint as mediator, either at the
commencement of, or at any stage during, the
proceedings under this Chapter.
(2) A mediator to which parents are referred to
under sub-section (1) must possess relevant
professional qualifications or training in
mediation, and sufficient skill and experience
in mediation relating to family disputes.
(3) For the purpose of this section, every High
Court and District Court and Family Court
shall maintain a list of court-annexed
mediation centres or individual mediators.
(4) The court-annexed mediation centres or
individual mediators shall be identified and
paid remuneration in accordance with a
scheme prepared for this purpose by the
concerned High Court, in consultation with the
respective State Governments.
(5) For the purpose of ordering or performing any
mediation under this section, the court and the
appointed mediator shall have regard to the
guidelines specified in the Schedule.
(6) The court may, where it considers appropriate
or necessary, seek assistance from a trained
and experienced professional to undertake an
independent psychological evaluation of the
(7) A mediation ordered by the court under this
section must ordinarily conclude not later than
sixty days from the date of such order, unless
extended by the court, where necessary.
19G. Child support.
(1) A court may pass appropriate orders for the
maintenance of children, and fix an amount
that is reasonable or necessary to meet the
living expenses of the child, including food,
clothing, shelter, healthcare, and education.
(2) For the purpose of determining reasonableness
or necessity, the court may take into
consideration the following factors, namely:–
(a) the financial resources of each of the
(b) the standard of living that the child would
have had if the marriage had remained
(c) the physical and emotional condition of the
(d) the particular educational and healthcare
needs of the child; and
(e) any other factors that the court considers fit.
(3) An order of the court under this section must
subsist till the child reaches 18 years of age.
(4) Notwithstanding anything contained in sub-
sections (1), (2) and (3), the court may make
such further orders as it considers fit,
(a) requiring the payment of a sum greater than
the sum determined under sub-section (1);
(b)requiring the subsistence of an order for a
duration longer than as provided under sub-
section (3), but such order shall not subsist
in any case beyond such time as the child
reaches 25 years of age;
(c) requiring the subsistence of an order under
sub-section (3) beyond such time as the child
reaches 25 years of age in case of a child with
mental or physical disability; and
(d)making the estate of a parent, who dies
during or after the conclusion of proceedings
under this section, liable for obligations
under the order passed by the court.”
I NSERTION OF 6. In the principal Act, the following Schedule shall be
S CHEDULE inserted at the end, namely:–
GUIDELINES FOR CUSTODY, CHILD SUPPORT AND
I. FACTORS TO BE CONSIDERED FOR GRANT OF
(1) In making an order for joint custody under
Chapter IIA, the court shall have regard to the
a. whether the parents will be able to
cooperate and generally agree concerning
important decisions affecting the welfare
of the child;
b. whether each of the parents is willing and
able to facilitate, and encourage, a close
and continuing relationship between the
child and the other parent;
c. whether the parents are able to jointly
design and implement a day-to-day care
plan that fosters stability;
d. the maturity, lifestyle and background
(including culture and traditions) of the
child and parents, and any other
characteristics that the court thinks are
e. the extent to which each parent has
fulfilled, or failed to fulfil, his
responsibilities as a parent;
f. the extent to which the parents are able
or unable to find a reasonable way of
g. the extent to which the higher income
parent is willing to support in creating
similar standards of living in each
h. the child’s existing relationship with each
parent, siblings, and other persons who
may significantly affect the child’s
i. the needs of the child, giving due
consideration to other important
relationships of the child, including but
not limited to siblings, peers and
extended family members;
j. any family violence involving the child or
a member of the child’s family;
k. whether the child is capable of forming an
intelligent preference; and
l. any other fact or circumstance that the
court thinks is relevant.
(2) The court shall direct the parents to conduct an
annual review of the welfare of the child and the
income of each parent, and to file the same
before the court.
II. DETERMINING PREFERENCE OF THE CHILD
(1) In determining the preference of the child for
any purpose under this Act, the court shall take
the following matters into consideration,
a. whether the child is of an age and
maturity to indicate intelligent
b. the extent to which the child has an
understanding of the circumstances
surrounding the court proceedings;
c. whether the child has had a history of
expressing an intelligent preference;
d. whether any preference of the child so
expressed was based on the fact that the
child recently spent an extended period of
time with either parent; and
e. whether the child understands the
consequences of the preference that he
(2) In conducting an interview with the child, the
court may, if it considers fit in the
a. decide who will be present when the court
interviews the child, and if necessary,
speak to the child alone, in the absence of
the parents or their legal representatives;
b. request the presence of a child
psychologist, a mediator, or any other
specific person identified by the court.
(3) The court shall make a record of the interview
with the child, and may keep such record
confidential if the court determines that it is in
the welfare of the child.
(4) The court or any other person shall not, in any
circumstance, require or compel the child to
express his views in relation to any matter.
III. ACCESS TO RECORDS OF THE CHILD
(1)Unless limited by an order of the court, or any
other provision of law, neither parent,
regardless of whether such parent has custody
of the child or not, shall be denied access to any
information about their minor child, including
medical, dental, and school records.
(2)The court may, in exceptional circumstances,
after an opportunity of being heard, order
specific information to be withheld from a
(3)In the case of medical records, the court may, if
it considers fit, deny access to a parent if the
physician or child psychologist treating the
child makes a written statement that any such
access by the requesting parent would cause
substantial harm to the child or another person.
IV. GRAND-PARENTING TIME
(1)A child’s grandparent may apply to the court for
a grand-parenting time order under one or more
of the following circumstances, namely:–
a. the parents of the child are divorced or
have separated, or proceedings for divorce
or separation are pending before the
b. the child’s parent, who is the daughter or
son of the grandparent, is deceased; or
c. the grandparent has, in the past, provided
an established custodial environment for
the child, whether or not the grandparent
had custody under a court order.
(2)An order for grandparenting time may be issued
only after giving due notice, and an opportunity
of being heard, to both the parents.
(3)Before issuing an order for grand-parenting
time, the court shall determine whether such an
order is required for the welfare of the child.
(4)In determining the welfare of the child under
this part, the court shall consider the following,
a. the love, affection, and other emotional
ties existing between the grandparent and
b. the grandparent’s mental and physical
c. the child’s intelligent preference;
d. the willingness of the grandparent, except
in the case of abuse or neglect, to
encourage a close relationship between
the child and the parent or parents of the
e. any other factor relevant to the welfare of
(1)The objective of mediation under Chapter IIA is
to assist the parties to arrive at an agreement
regarding the welfare of the child, and designing
an implementation plan to ensure the welfare of
(2)Where there are undecided issues in
proceedings under Chapter IIA, a court may
direct the parties to undergo mediation, resolve
the issues, and then seek approval of the court.
(3)It is the role of the mediator to–
a. encourage the parties to co-operate;
b. assist the parents in realising their
responsibilities and duties towards the
welfare of the child; and
c. in case a joint custody order is likely to be
issued, work with the parties to resolve,
in a mutually acceptable manner, related
issues, including, but not limited to,
shared parenting time and shared
responsibilities for decision making.
(4)If either party applies to the court to modify an
order issued under Chapter IIA, the court may
direct the parties to undergo mediation, to arrive
at an arrangement that will work for the
(1)A parent intending to relocate shall give thirty
days advance written notice to the other parent.
(2)In case the relocation is opposed, the court must
determine if the proposed relocation is for the
welfare of the child.
(3)In determining the welfare of the child in cases
of relocation, the court shall take into
consideration the following factors, namely:–
a. whether the relocation is for a legitimate
b. each parent’s reasons for seeking or
opposing the relocation;
c. the quality of the relationships between
the child and each parent;
d. the impact of the relocation on the
quantity and the quality of the child’s
future contact with the non-relocating
e. the degree to which the relocating
parent’s and the child’s life may be
enhanced economically, emotionally and
educationally by the relocation; and
f. the feasibility of preserving the
relationship between the non-relocating
parent and the child through suitable
VII. DECISION MAKING
(1)An order for custody of a child made by the
court under Chapter IIA shall clearly address
the following issues, amongst others:–
a. the religious instruction of the child,
attendance at places of worship,
undergoing religious ceremonies, and
b. the choice of school, subjects, classes,
courses, and tuition, and whether the
child is to attend a particular school trip
outside the local area;
c. whether the child is to be hospitalized,
and whether a non-emergency surgical
procedure is to be performed on the child;
d. the choice of extra-curricular activities,
taking into consideration the child’s
interests and aptitude; and
e. where the child will spend holidays, and
in cases where required, the information
that one parent has to provide to the other
(2)The court can either make a specific decision
(e.g., the child will attend a given school) or
allocate decision-making responsibility for a
given issue to one parent or both together.
VIII. PARENTING PLAN
(1)The objectives of a parenting plan are to–
(a) minimise the child’s exposure to harmful
parental conflict; and
(b)encourage parents to mutually agree on
the division of responsibilities of the
child’s upbringing through agreements in
the parenting plan, rather than by relying
on court intervention.
(2)In designing a parenting plan, the parents must
ensure that it is for the welfare of the child, and
a. the day-to-day needs of the child are met;
b. any special needs that the child may have
c. the child gets to spend sufficient time with
each parent so as to get to know each
parent, as far as possible;
d. there is minimal disruption to the child’s
education, daily routine and association
with family and friends; and
e. transitions from one parental home to
another are carried out safely and,
(3)A parenting plan may deal with one or more of
the following, namely:–
a. the parent or parents with whom the child
is to live;
b. the time the child is to spend with the
c. the allocation of parental responsibility
for the child;
d. the manner in which the parents are to
consult with each other about decisions
relating to parental responsibility;
e. the communication the child is to have
with other persons;
f. maintenance of the child;
g. the process to be used for resolving
disputes about the terms or operation of
h. the process to be used for changing the
plan to take account of the changing
needs or circumstances of the child or the
parties to the plan;
i. any aspect of the care, welfare or
development of the child or any other
aspect of parental responsibility for the
(4)The parenting plan must be voluntarily and
knowingly arrived at by each parent.
(5)The court shall not ordinarily interfere with the
division of responsibilities between parents
reflected in the parenting plan, unless they are
ex facie inequitable.
(6)If the initial parenting plan does not cover
certain issues, the parents may approach the
court to modify the terms of the plan to address
new subjects of decision-making.
(1)An order made by the court regarding visitation
must ensure that–
a. a child has frequent and continuing
contact with both parents, when
appropriate, and also with extended
family and friends; and
b. both parents have equal opportunites to
spend quality time with the child,
including during holidays and vacations.
(2)For the purpose of determining visitation rights
and times, the court may take the following
factors into consideration, namely:–
a. the age of the child;
b. the distance between the parental homes;
c. any holidays, including weekends,
festivals and religious occasions, as well
as longer school vacations; and
d. any other commitments of the parents,
which might affect their ability to spend
quality time with their child.
(3)The court may decide the time, manner and
place to exercise visitation rights, and may take
into consideration any visitation rights plan that
has been submitted to the court by the parents.
(4)A court may limit, suspend, or otherwise
restrict, the visitation rights granted to a parent,
if the court has reasonable basis to believe that
circumstances make such restriction necessary
for the welfare of the child, or if there is serious
or repeated breach by a parent of any duties
imposed by the court in this regard.”