Feasibility of Joint

Custody / Shared
parenting
OWAIS HASAN KHAN
 Scheme of Presentation

 Introduction
 Custody rules under Different personal laws & Secular Laws.
(Hindu, Muslim & Christian)
 Joint Custody-Concept & Mechanism.
 Feasibility of Joint Custody
 International Approach to Joint Custody
 Conclusion
 INTRODUCTION

Child Custody is one of the most typical question before a court of

law :-

a. The worst affected in proceedings of divorce and family

breakdowns are the children

b. For proper development of a child both the parents are required. So

choosing either one of them is difficult task.

c. Absence of any scale to determine “the Better parent”

 the child’s welfare was the supreme consideration, irrespective of
the rights and wrongs that the parents contend. (Carla Gannon v. S.
F Allarakhia, Bom. High Court, Cr. Writ Ptn #. 509 of 2009.)

 welfare of a child is not to be measured merely by money or

physical comfort (Nil Ratan Kundu v. Abhijit Kundu AIR 2009 SC
(Supp) 732. )
 Guardians and Wards Act, 1890
 secular law regulating guardianship and custody for all children ,
irrespective of their religion.

 when the natural guardian as per the minor’s personal law or the
testamentary guardian appointed under a Will fails to discharge
his/her duties towards the minor

 Section 7 of the GWA authorizes the court to appoint a guardian for

the person or property or both of a minor, if it is satisfied that it is
necessary for the ‘welfare of the minor.’
 Section 17-Factors to be considered for appointing guardian:-
- welfare of the child
- the age, sex and religion ;
- the character and capacity of the proposed guardian
 how closely related the proposed guardian is to the minor;
 the wishes,
 Hindu Personal Law
Section 6 of HM & G ACT, 1956:

1.Minor Child less than five yrs. old- Mother

2.Minor Child above five- Father and after him mother.
3. Illegitimate Child- Mother, after her father.
4. Minor married girl- Husband
-Githa Hariharan V. RBI, AIR 1990 SC 1148- “after him” explained.

- Nil Ratan Kundu & Anr vs Abhijit Kundu (2008) 9 SCC 413- beyond
natural guardian.
 Muslim Personal Law
1-- Mother’s right of custody (Hizana)
Sunni Hanafi Law
 Male Child till 7 years
 Female till puberty
Shia Law
 Male Child till 2 years
 Female child till 7 years
2. Other Female Relatives ---
in case of absence, where male child is less than 7 years and female child less
than puberty to following female relatives;-
I. mother’s mother,
II. Father’s mother
III. Mother’s grandmother
IV. Father’s grandmother
V. Full sister
VI. Uterine sister
VII. Daughter of full sister etc.
3- Male Relatives
I. Father
II. Paternal Grandfather
III. Full Brother
IV.  consanguine brother
V. full brother's son
VI. consanguine brother's father
VII. full brother of the father
VIII. consanguine brother of the father
IX. father's full brother's son
X. father's consanguine brother's son
Zahid Ali v. Keshari 1996 All HC- financial stability of mother is not a
disability

Irfan Ahmad v. Mumtaz AIR 1999 Bom 25- remarriage is not a

disability
 Christian Personal Law
 Indian Divorce Act, 1869
 Section 41 - powers to make orders as to custody of children

 Rosy Jacob v. Jacob A. Chakramakkal‘ [(1973) 1 SCC 840]

 All orders relating to the custody of the minor wards from their very
nature must be considered to be temporary orders made in the
existing circumstances
 Joint Custody

 Shared physical custody of a Child after Divorce or marital discord.

 Parenting Plan- sharing the physical custody of child
 In India there are no laws regarding Joint Custody
 Except for few cases laws and Law Commission Report, 2015 on
Joint Custody
KM Vinaya v. B Srinivas (Karnataka High Court, 2013)

 The minor child was directed to be with the father from 1 January
to 30 June and with the mother from 1 July to 31 December of
every year.
 The parents were directed to share equally the education and other
expenditures of the child.
 Each parent was given visitation rights on Saturdays and Sundays
when the child was living with the other parent.
 The child was to be allowed to use telephone or video conferencing
with each parent while living with the other.
Why Joint Custody?
 For proper development and nurturing of a child both parents are
indispensable.
 Changing familial role
 Children need adequate opportunities to bond with each parent.
 Children should have contact with both parents regardless of
whether the parents reconcile.
 Gender-based stereotypes
Feasibility ?

 A stable, anchored home is the best option.

 It is not healthy for a child to move between two homes.

 Where parents have unresolved issues, they will not be able to agree
on joint decisions for the child.
International Approach to Joint Custody

 Many States of USA have special rules under Family Code on Joint
Custody
 State of Virginia, State of Georgia, State of California
VA Code § 20-124.1
 “joint custody” can refer to several different things: joint legal
custody, joint physical custody, or a combination of both.
 Role of Custody Officer, Custody evaluation and Parent’s rating.

 ,
 Canada, United Kingdom , South Africa

 Braiman v. Braiman, 44 N.Y.2d 584 (1978 )

“Joint custody is encouraged primarily as a voluntary alternative for

relatively stable, amicable parents behaving in mature civilized
fashion. As a court-ordered arrangement imposed upon already
embattled and embittered parents, accusing one another of serious
vices and wrongs, it can only enhance familial chaos”
Conclusion
Thank you