20th Law Commission submitted report on Guardianship and Custody Laws to the Union Law Ministry

May 25, 2015 11:00 IST

The 20th Law Commission of India on 22 May 2015 submitted the 257th report titled Reforms in Guardianship and Custody Laws in India to DV Sadananda Gowda, the Union Minister of Law and Justice.

The report reviewed the current laws dealing with custody and guardianship and came up with draft legislative amendments in the form of the Hindu Minority and Guardianship (Amendment) Bill, 2015 and the Guardians and Wards (Amendment) Bill, 2015 to the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890 respectively.

Major amendments deal with the Guardians and Wards Act, 1890 by introducing a new chapter (Chapter IIA) on custody and visitation arrangements including the concept of joint custody.

Key Aspects of the Draft Legislation

Welfare principle: The welfare principle in the Guardians and Wards Act, 1890 was strengthened with a continuous emphasis on its relevance in each aspect of guardianship and custody related decision-making.

Abolition of preference: Preference for the father as the natural guardian under Hindu law was removed and both parents are granted equal legal status with respect to guardianship and custody.

Joint custody: Courts are empowered to award joint custody to both parents in circumstances conducive to the welfare of the child or award sole custody to one parent with visitation rights to the other.

Mediation: Parties to a custody matter must ordinarily consider expert-led and time-bound mediation, which can not only promote better outcomes for parents and children, but also reduce the strain on the overburdened court system.

Child support: Courts are empowered to fix an amount specifically for child support, to meet basic living expenses of the child.
Financial resources of parents and the standard of living of the child must be considered when fixing such amounts. Child support must continue till the child turns 18, but may be extended till 25; or longer, in case of a child with mental or physical disability.

Guidelines: Detailed guidelines were evolved to help courts, parents and other stakeholders arrive at the best arrangement to serve the welfare of the child. Several new concepts in this regard, including parenting plans, grand parenting time, visitation rights, and relocation of parents were also mentioned in the report.

Comment
The revision of the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890 has become necessary to ensure these laws are in tune with changes in the social considerations. As per an estimate, divorce rate increased to 13 per 1000 in 2014 as compared to that of 1 in 1000 in 2004.

Additionally, in most of the proceedings of divorce and family breakdowns parents use children as pawns to strike their own bargains without considering the emotional, social and mental upheavals that the children may face.

Hence, in order to protect interest of the children, the commission has recommended amendments to laws by giving substantial powers to courts in dealing with such cases.

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