SC to decide on allowing 'Joint Parenting' rather than providing custody to one parent after Divorce

July 20, 2019:

Can a joint parenting system be adopted in the country under which a child will be looked after by both the parents after divorce instead of giving custody to one of them?

The Supreme Court on Friday agreed to examine the issue to protect the interest of a child who has to go through mental trauma in custody battle between parents.

Although a bench comprising of Justice S A Bobde and Justice B R Gavai was initially reluctant in entertaining the PIL on joint parenting, saying that the law can be framed by Parliament and not by judiciary, it, however, finally decided to hear the case and issued notice to Centre seeking its response on the petition on framing of guidelines or amendment in law to pave the way for joint parenting.

The Court was hearing a petition filed by an NGO ‘Save Child India Foundation’ which contended that children suffer the most in a matrimonial dispute and a mechanism should be put in place on how to deal with such cases.

Referring to United Nations Convention on the Rights of the Child to which India is a signatory, the petitioner alleged that the government authorities are bound to respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis.

“Due to rise in separation and divorce rates in the changing society, children’s rights need to be secured. Due to dispute between the parents in the country, children are unable to maintain personal relations and direct contact with both parents on a regular basis.

It has been observed in various researches and by Indian courts that breakdown of marriage is not the end of being a parent, as parental responsibility still continues,” the petition said.

It said that a child is entitled to love and affection of both the father and the mother and he/she should have access to both of them for overall development.

"The child custody can very well be substituted with the word 'parenting the child life'. The same approach has been adopted in France with the substantial impact in parenting. The present laws in the country are less focused towards 'parenting the child life' but more towards the crude implementation of custody and guardianship,” the petitions said.

“There should be clear guidelines about implementation of joint and shared parenting and responsibility in order to secure children’s direct contact with both the parents even if the parents are in a dispute so that a child grows up in a friendly and family environment and their overall development could not be affected. The emotional, social and physical development of young children has a direct effect on their overall development,” the petition said.

The issue raised in the petition assumes significance as number of divorce cases is increasing.

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