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. 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.
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.
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.