Time to do away with archaic family laws


The other day Union Law Minister, Kiren Rijiju told a news agency, “we have decided to remove all obsolete, archaic laws from the statute, as unnecessary laws are a burden to a common man. We have decided to revoke more than 1500 laws in the winter session of the Parliament.  I am ready to introduce many more repealment Acts.” It’s a much-needed step to axe obsolete, unnecessary laws. But what of antiquated family laws that need urgent  amendments.

Hindu Minority and Guardianship Act, 1956 (HMGA), declares that the natural guardian of a minor Hindu boy or unmarried girl shall be the father and mother, and that the custody of a minor who is not five years of age, shall be with the mother. HMGA does not contain any independent, legal or procedural mechanism for deciding the custody rights or declaring court appointed guardians. A parent or any other person seeking appointment as a “guardian” has to seek relief under the 132-year-old Guardian and Wards Act, 1890 (GWA). Parents are forced to seek exclusive temporary and permanent custody of their biological offspring as single guardians. Child

custody issues between parents have to be determined under GWA. Joint or shared parenting is not an option. Antique laws rule the roost.

India is a signatory to the United Nations Convention on Rights of Child (UNCRC). Consequently, the definition of “best interest of child” has been implanted from UNCRC in Juvenile Justice (Care and Protection of Children) Act, 2015 to mean “the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social wellbeing and physical, emotional and intellectual development”. The Supreme Court in 2019  held that the “best interest of child”, “cannot remain love and care of mother as the primary caregiver of an infant few years old.” The glass ceiling of gender preference was shattered to provide neutrality to parents. Presumption of maternal custody as sound child welfare policy is now rebuttable.

In 2022, the Supreme Court held that child welfare should get precedence if the custody of a young child with mother is to be disturbed.

Law Commission of India report in 2015, on Reforms in Guardianship and Custody Laws in India, recommended joint custody and shared parenting, whilst disagreeing with single custody parents.

Exhaustive recommendations were made to suggest amendments in HMGA and GWA for joint custody and guidelines for custody, child support and visitation arrangements. The Report 263 of Law Commission of India on Protection of Children (Inter-Country Removal and Attention) Bill, 2016, recommended a draft Bill for protecting the best interest of children relating to custody as per UNCRC. The report of Justice Bindal Committee submitted to Government in 2018 also suggested that the best interest of children is of paramount importance in matters relating to child custody in view of UNCRC.

Alas, these reports continue to gather dust in Government archives.

This results in ugly custody disputes. The Supreme Court in 2017, highlighted the concept of Parental Alienation Syndrome, and held that “a child-centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of children, who are the future of the nation.” Alienated children polarised by single custody laws, do not even want to speak or see non-custodial parents.

The archaic GWA lets custodial parents  deny visitation rights to non-custodial parents with catastrophic consequences. Family Courts offer little aid to mollify such grievances.

The Supreme Court in 2020 permitted children to travel outside India during pandemic times, holding a father can very well take care of welfare and safety of minor. Joint parenting with equal rights should be considered a viable option. Family Courts free to devise their own procedure, independent of technicalities of law, can formulate out-of-box methods and insist that children be shared by father and mother. The conventional single parent custody trap is outdated. It causes immense harm to children and turns parents into mental wrecks. The Law Minister must revoke or revise such an outdated law.

Let’s remember children are not chattels to be possessed by one parent.

(The writer is an advocate an alumni of SOAS, London,and  an IAFL Fellow who has co-authored nine books)





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