Joint Parenting: Reality in India?
The author of this blog is Manoj Mali, 2nd-year student of
B.A.LL.B.(Hons.) at Maharashtra National Law University, Nagpur.
When a couple separates, most often, the
brunt of their separation is faced by their children. It is the child whose
heart breaks apart when they are asked by the Family Court to decide whom
they would like to live with after the divorce of his/her parents. According to
the 2011 census, 3.5 million people are separated and 1.3 million people are
divorced in India.[1]
Imagine how many children would be suffering the nightmares of their parents
divorcing. Now, can there be a way out where these children would not have to
decide between their parents and could have the love and care from both of
their parents?
Save Child India Foundation, an NGO filed a
plea in Supreme Court asking it to issue directions regarding taking into
consideration, the interests of children when the custody of children is
decided upon. Initially, the Supreme Court declined to decide upon it stating
that it is a matter of parliament to decide and make laws of Shared or Joint
Parenting. But thereafter, the plea was accepted. The center was asked to
respond to the matter. Basically, the NGO wants to implement the policy of
Joint Parenting in India to safeguard a better future for children. Some
important point made in the plea are below-mentioned:-
1.
A child has the right of
getting love from both the parents. His rights must be respected.
2.
The end of a marriage does not
mean the end of parental obligations and responsibilities.
3.
In the battle of divorce and
custody, the children are the one who gets sandwiched and suffers the most.
4.
Existing family laws are
insufficient to deal with the problems of children in divorce cases.
5.
The current law is prioritizing
on whom to give custody rather than ensuring proper parenting of a child.
Joint Parenting
Shared Parenting or Joint Parenting is a
type of child custody arrangement in which a child is brought up and raised by
both the parents with love and guidance after a separation. In this type of
arrangement, the parents share equal responsibility in raising up the child and
spends almost equal time with the child. A child primarily living with one
parent and with the other only on major holidays cannot be called a Joint or
Shared Parenting. Both the parents have equal rights to decide for the future
of the child in the Joint Parenting.
It is the opposite of Split Custody where the
custody of a child is given to one of the parents. Generally, custody of the
child is given to the mother if the child is very young or especially if the
child is a girl. Father may get custody of the child is a boy or if he can prove
that the mother is incapable of raising up the child. The parent who does not
get custody generally gets visitation rights. Split Custody is not a good
idea because the child may not be able to get the guidance and love of the
other parent. The other parent also, as he/she does not spend much time with
the child, does not get to know much about the child and hence cannot take
decisions for the child.
According to Child Psychologists, keeping a
child away from either parent may result in an increase in chances of school
dropouts, bad academic performance, taking to drugs. It may even induce
criminal behavior, affect a child’s own marital life and harbor suicidal
thoughts.
But is it All Good?
Joint Parenting system is better than Split
Custody in many aspects. Apart from its many benefits to children where the
principal benefit being getting emotional support and love from both parents,
it is beneficial for parents too. Parents too enjoy spending their leisure time
with their children and with children being there in joint custody, they can
enjoy that part of life and can play an effective parental role in the lives of
their children. Also, the parents can have a better work-life balance as they
are not alone while parenting the child.
But the Joint Parenting System cannot be
implemented blindly. There are some critical aspects which need to be
understood while implementing it:-
1.
In cases of domestic violence or ill-treatment of child or cases where there is a serious incompatibility
issue, Joint Parenting would not be a happy solution.
2.
The child is the principal
beneficiary of the Joint Parenting, and hence, he\she should be consulted and
asked about the Joint Parenting and it should not be forced on the child.
3.
A child who would have been
abused by a parent earlier would be devastated if he is made to live with that
parent under Joint Parenting.
4.
In cases where one of the
parent has remarried or moved to another place, Joint Parenting becomes
difficult.
In 2015, the Law Commission headed by the
retired Chief Justice of Delhi High Court, Justice AP Shah had recommended an
amendment in the Hindu Minority and Guardianship Act 1956 while stating the
conditions that should be kept in mind while exercising the option of Joint
Parenting:-
1.
Court has to ensure whether the
parents are responsible and mature enough before considering Joint Custody.
2.
Whether the parents are willing
to arrive at an agreement that may affect their child welfare and future.
3.
And lastly, whether the parents
are capable enough to jointly implement a day to day scheme of Joint Custody.
Also in 2016, a Supreme Court bench
consisting of Justice Kurian Joseph and Justice Rohinton Nariman had stated,
while hearing a plea for custody of a daughter, a child needs both the parents.
Conclusion
The Popularity of Joint Parenting is
increasing day by day everywhere. It is already popular and exists in many
countries. Countries like the Netherlands, South Africa, Australia, the UK, and US have
this Joint Parenting or Joint Custody System. Countries like Italy have
already passed a law which made the Joint Parenting, a default parenting setup
in case of any dispute.
As the cases of Divorce in India are
increasing day by day where more than 3.5 million people are separated and 1.3
million people are divorced according to the 2011 Census. It is high time that our
law-makers give a serious thought about the Joint Parenting setup and amend the
Hindu Minority and Guardianship Act of 1956. This might reduce the trauma that
children of separated or divorced parents face during and after the custodial
fight between their parents.
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