By- Sakshi Joshi and Soumya
Tokas
"Department of
Law, Maharaja Surajmal Institute, Guru Gobind Singh Indraprastha University,
New Delhi”
Abstract
Disputes over child
custody frequently centre on whether shared parenting or sole custody is in the
best interests of the child. This study discusses legal trends in custody
legislation, emphasizing important legislative developments and major cases
throughout jurisdictions. It also considers the psychological impact of custody
orders on children, comparing emotional, behavioural, and developmental
consequences. The research also takes into account the effect of parental
rights, economic security, and gender relations on custody outcomes. Based on a
comparative analysis, this paper will present insights into the strengths and
weaknesses of both custody frameworks while proposing legal reforms towards a
more child-centred approach to custody determinations.
Keywords:
custody, parenting and
jurisdiction.
1. Introduction
Child custody is arguably
the most severe and emotionally charged aspect of family law, especially in the
context of divorce or separation. It not only determines where and with whom a
child will live, but also the level of involvement each parent will have with
the child's life. The significance of custody agreements lies in their enduring
influence on a child's emotional well-being, psychological development, and
overall health.
Historically, sole
custody, where one parent has primary responsibility for the child, was the
standard in most legal systems, usually favouring mothers. But with shifting
societal values and changing family forms, shared parenting has become a
reasonable alternative, focusing on the ongoing participation of both parents
in the child's life. This change is part of a larger acknowledgment of the
value of continuing to have close relationships with both parents after
divorce.
Legal concepts such as
the "best interests of the child" now guide custody decisions in most
jurisdictions. The Indian courts have emphasized this standard in several
judgments. For instance, in Roxann Sharma
v. Arun Sharma[1], the
Supreme Court held that custody decisions must prioritize the interests of the
child over parental interests. Similarly, in Gaurav Nagpal v. Sumedha Nagpal[2],
the Court reaffirmed that the best interest of the child takes precedence and
cannot be overridden by the legal rights of the parents.
By contrast, overseas in
foreign countries like the United States, the principle of joint legal custody
is already established, as in Troxel v.
Granville[3], where
the U.S. Supreme Court enshrined constitutional parental rights but also
accorded more weight to a child's best interests in relation to custody. In the
UK, Re G (Children) (Residence: Same-Sex
Partner)[4],
demonstrated courts' growing willingness to accept non-conventional but child-centred
custody orders.
While other states have
embraced shared parenting as a default or first-best model, others are reticent
due to concerns regarding feasibility, conflict resolution, and the unique
needs of each family. The "best interests" standard is used erratically,
based on cultural, social, and judicial realities.
This article attempts to
distinguish between shared parenting and sole custody by looking at legal
development throughout the world and judging their psychological effects on
kids. This article attempts to provide an integrated analysis of how child custody
law has developed, how it affects children, and how legal change can support
more child-centric and balanced results.
Objectives
1. To analyse legal developments in shared
parenting and sole custody across jurisdictions.
2. To examine the psychological impact of
different custody arrangements on children.
3. To compare the advantages and
disadvantages of shared parenting and sole custody.
4. To propose legal and policy
recommendations for improving custody laws.
Research Methodology
This is a doctrinal research. The relevant material will be
collected from secondary sources. All this existing information will be taken
from legal sources such as legislations, court orders, books, high courts and
Supreme Court, legal reports of reputed organisations, credible websites and
also work of research eminent scholars as this is a multidisciplinary
study.
Sample: Cases will be derived from the Supreme Court cases and
High court cases.
2. Legal Framework and Trends
2.1 Comparative Overview of Custody Laws:
Prior to knowing the laws of custody, we must
recognize the patriarchal society which has given the fathers a higher status
since centuries. Previously, the father was the only guardian of the children
keeping in view the status of women – illiterate and unknown. Hence, the
personal laws were enacted long ago in accordance with the status of men and
women in society. But now times have changed and personal laws must be
reformed. In the meantime, the laws are examined, and the judiciary has been
active and child-friendly to safeguard their rights. Children are the country's
greatest asset. Therefore, while deciding the question of custody, the sole
consideration is the child's welfare. In every statute, be it personal or
secular the doctrine of "welfare of the child" has been established
with the exception of Islamic law. The court looks to the welfare and desires
of the child in awarding custody and this may be deduced from the cases below.
In the classic case of Githa Hariharan v. Reserve Bank of India[5], constitutionality of S. 6(a) of HAMAwas challenged in which
mother was disentitled to becoming a natural guardian during the lifetime of
the father. The Supreme Court held that the welfare principle of the minor is
the major consideration and held that the term "after" is to be read
as "absence". Hence, the mother can be the natural guardian in the
father's lifetime.
In the Lahari
Sakhamuri v. Sobhan Kodali [6]case, it was noted that the
most important factors which need to be remembered by the courts for assessing
the welfare of the children like maturity and judgment; mental stability;
capacity to provide access to schools; moral character; capacity to provide
ongoing participation in the community; financial adequacy, and involving
relationship with the child. In Mausami
Moitra Ganguli v. Jayant Ganguli[7], the Supreme Court noted
that superior financial means of either of the parents or affection for the
child might be one of the factors to be considered but cannot be the only
determining factor for the custody of the child.[8]
2.2 Key Legal Doctrines:
Ever since independence, Indian jurisprudence
has largely followed a 'straight-jacket formula' of granting sole custody in
the majority of child custody cases. This is rooted deeply in conventional
legal interpretations and statutory provisions. One of the key legal bases for
this norm is Section 6(a) of the Hindu
Minority and Guardianship Act, 1956 (HMGA) which reads that "in the
case of a boy or an unmarried girl—the father, and after him, the mother shall
be the natural guardian." The language used here explicitly manifests a
gendered bias by positioning the father in a privileged position by default and
assigning the mother a secondary role.
In Islamic law as well, such patriarchal
undertones prevail. Though the natural guardianship (wilayat) belongs to the
father, custody (hizanat), especially of very young children, is vested in the
mother but only temporarily and subject to certain conditions. Even though
these religious and statutory principles have controlled custody arrangements
for so long, shifting family structure dynamics and changing ideas about gender
roles necessitate a complete shake-up of such antiquated custody norms.
The critical question therefore arises: If the
sole custody model is antiquated, what new framework can then be utilized in
its stead? A sensible and forward-looking alternative is joint custody—a model
which is yet underutilized and under-explored within Indian legal circles.
Even though there has been an increased
international acceptance of shared parenting, particularly in countries like
Australia, the Netherlands, and the United States, the Indian judicial system
has been slow to adopt joint custody legislatively. Yet, courts have sometimes
and quietly applied the tenets of joint parenting to make for overall child
well-being. For example, in Dr. V. Ravi
Chandran v. Union of India,[9], the Supreme Court recognized the global trend towards shared
parenting while adjudicating transnational custody cases, with an emphasis on
the child's best interests through sustained parental contact.
Additionally, in Athar Hussain v. Syed Siraj Ahmed,[10] the Court reinforced that the best interest
of the child outweighs statutory rules or parental interests, tacitly endorsing
shared parenting when it advances the welfare of the child. In Gaytri Bajaj v. Jiten Bhalla[11], the Supreme Court reinforced the importance
of nurturing an emotional relationship between the child and the parents, given
the psychological repercussions of custody rulings.
[1] Roxann
Sharma v. Arun Sharma, (2015) 8 SCC 318
[2] Gaurav
Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42
[3] Troxel v. Granville,
530 U.S. 57 (2000)
[4] Re G (Children)
(Residence: Same-Sex Partner), [2006] UKHL 43
[5] Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.
[6] Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.
[7] Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673.
[8] https://manupatracademy.com/legalpost/deciding-child-custody-matters-under-various-personal-laws
[9] Dr. V. Ravi Chandran v. Union of India, (2010) 1 SCC 174
[10] Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654
[11] Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471
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