Shared Parenting Responsibilities


BACKGROUND

In India, marriages are one of the customs which acts as the most important and major part of everyone’s life. But there are many other marriages which take the other route in the Indian custom and one of the routes is the divorce. Divorce is the process for dissolving the marriage. Through this dissolve, the husband and wife are separated and they again became an independent being. The most affected being through this process is their child/children. In the case of divorce, the court decides the custody of the child/children to either of the parents. So after giving the custody, the child/children are raised by only one parent. This result in many problems and the child/children don’t get the love and benefits from both the parents, to which they have rights.

The child is very immature person and can be affected easily if there is any change in the surrounding. So, in the cases of divorces the child has to go with only one parent. So, it is on the discretion of the court to decide the custody of the child. The court decides this, based upon the welfare of the child. Then the other parent is given with the visiting right. This type of parenting is called shared parenting responsibility, where the child is cared by both the parents.

This emerging new concept is evolved from US, UK, France and so on. This concept is the shared parenting responsibility, where one person has the custody of the child and the other person will have the right for regular visiting to child/children, and they also have right to support them in one or other way. In India, the concept is still evolving and most of them are dependent on the obiter dictum.

 

INTRODUCTION

The concept of shared parenting responsibility has been evolved through many centuries. The concept started gaining the importance, when the children were left out, either they used to get neglected or abused or parents used to live separately. This concept has been evolved from US, UK, Australia, and France and so on.

The shared parenting responsibility has been interpreted in different laws of India as well as international law. But at last, these laws conclude that the interest of the child will be based upon the interest of the child. The interest of the child is the basic thing to be kept in mind, if its maintenance or adoption or custody comes. The child is very immature when there is disturbance in their surroundings. It is the most affected being out of the divorce. It is necessary the child should have parenting from both the parents. When divorce takes place, one parent is given the custody and other parent is given the visitation pass.

This research paper has discussed this topic in three chapters. First is the emergence of the concept of shared parenting responsibility in India. How it adopted this concept and adjusted it in the Indian society. Second chapter discusses about the effect the child faces through the disturbance in its surrounding. And also how it affects the child, when it is socialized by one parent. The thirds chapter discusses about the different laws which contain these provisions. These provisions are given in both international as well as Indian laws.

Chapter 1: Emergence of the concept of shared parenting responsibilities in India

Parental responsibilities are one of the responsibilities which are not managed alone. There will always need a person(s) as support. These responsibilities are all the duties and authority which law gives or parents have in relation to children. The children under the age of 18 years are dependent on their parents only. They have them as their supporter and financial pillar. Both the parents are required to be there in the socialization of the children. They are like the two pillars of the life and if one of them is missing then the children acts as an unbalanced building. Many of these unbalanced children indulge into many crimes.

The marriage is the solemnization of the two individuals. In India, the marriage is either conducted through personal laws or the special marriage act. But through the emerging amendments to our laws, different divorce laws have also come. Divorce is the dissolution of the marriage. Through this the husband and wife are got separated. If the divorcee couple has child/children, then it is on the discretion of the court to give the custody to one parent and other parent gets the permission of visiting. The reason behind the best interest of the child so to have the both pillars in the life and this concept is termed as shared parenting responsibilities.

In shared parenting responsibilities, there is to be needed to have long-term issues planned and it takes care for the development of a child in longer scale, for example, their health, name, cultural upbringing and so on. The reason behind such concept is to see the best interests of the child. The child’s interest is to be seen first above other conditions. In case of Surya Vadnan v. State of Tamil Nadu,[1] the apex court came to the conclusion based on the best development of the child. The Supreme Court in this case told mother to take back the child to UK as there are best facilities there for the child as compared to India.

According to the common law, earlier, the child was used to get the father’s name, religion, maintenance and so on. The mother didn’t have any authority on the child. So, according to this law, after the divorce, mostly in many cases the child used to get independent legal name of the mother and responsibility was independently done by mother. But the cases of inequality started to rise.

The laws were started to be made based on parenting. In UK, the Custody of Infants Act, 1839 came where the mother has the custody of the child, if minor, and the father should have supreme rights and responsibilities on child. The amendment of the act was done in 1873, where the mother had the custody of the child till sixteen years of age. Then there was The Guardianship of Infants Act, 1886, where both the parents had the equal rights and responsibilities. And there was one more clause that if one of the parents is failing with its responsibilities, then it will be based on the welfare of the child.

India continued with this common law and it was enacted by the colonial state. The act was Guardianship and Wards Act. But there were many amendments done to get adjusted with the Indian society and laws. So, this led to be based on the welfare of the child.

There were many studies which were done in order to see which responsibility is better for the child, if their parents are separated by judicial separation or by divorce. It was studied either sole responsibility is better or shared parenting responsibilities. So, the research of 1996[2], it was observed that the joint parenting responsibilities are best way to socialize the child. If the one parent is poor then this leads to the balance in the parenting. Now let us discuss how this concept has been raised in India.

 

Chapter 2: Effects on the child after adopting the concept

The child is the most innocent being in the world. If there is any change in the surrounding then they are easily gets affected by it. According to the natural theory, the closest person to them is their parent. If one of them is not there, then it affects the child most. The nature has provided both the parents with different roles and responsibilities, which is needed to be fulfilled for socialization of the child.

India is an independent country and everyone has the right to get married or to judicially separated or get divorced. An individual has different rights and no one can violate that. If the parents don’t want to stay together, then they can opt for this choice. Now, the question arises that to whom the child custody should be given?

So, from the above chapter it is clear that the court gives the custody to the child based on its welfare. And in most of the cases the concept of shared parenting responsibilities is applied, where one parent gets the custody of the child and other gets the visitation right. In the case, Bimla and Ors. V. Anita, [3]the court held that the welfare of the child is not only based upon money or physical comfort, but also some sensitive things which are based upon case to case and upon its fact and circumstances. In Ravi Dadu v. Seema Gupta,[4] the court observed that for the emotional benefit or interest of the child can be taken care by the mother and the proper education and other facilities can be cared by the father. So, the court decided that the custody will be with mother and father will be granted with the visitation pass.

The granting of the visitation pass is the key to stop the child to be grown by single parent. Based on the researches, it is found that the child, who are socialized by the single parent are mostly dependent one, lack the social skill, mostly indulge into wrongful offence. The society also plays it role. Mostly the child of the single parent has to face the violence from the society, about the second parent. So, these causes mental trauma to the child.

The above points are the reason for granting the visitation pass, so that the child can get the socialization by both the parents and there will no violation of the natural law theory. But again, it depends upon the fact and circumstances of the case. Like for example, the divorce was based on domestic violence, then the visiting pass is not granted.

In the case of Gaytri Bajaj v. Jiten Bhalla,[5] the parties were married in 1902 and were divorced in the year 2003. There were two daughters and the court rose which an issue that who will get the custody and other will get the visitation pass. So, the question is that who will get such right. So, the case was decided based on the welfare of the children. The children didn’t want to go to the mother and they were happy with their father. The court gave the custody of the child to the father and mother was provided with the visitation pass.

In the case, Shaleen Kabra v.Shiwani Kabra[6], the husband and wife got divorced and the one child was in custody of the mother and other to the custody of the father. Then the court came with the conclusion that the two brothers should not be separated and according to the welfare so those, the custody of the children were given to the father and the visiting pass to the mother.

 

Chapter 3: Legal provisions related to the respective provision and the further amendments required

There are international laws, through which this shared parenting responsibilities are being guideline. The United Nations Convention on the Rights of the Child provides that the parenting responsibility should depend on the interest of the child, as it is the primary consideration.[7] The article 18 of this convention states that both the parents have the common responsibilities. And they have the right for upbringing and developing the child. It also states that the welfare of the child should be kept in mind, when there is abuse or neglect of the child or where the parents live separately.[8]

There are two Indian laws which mainly deal with these provisions are the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. The guardianship is equal to the parenting responsibilities, who take cares of both the child and its property. The custody is not defined in the any of the act of family law. Then there is another term known as a natural guardian. The person who is legally authorized by the responsibility and decision of the child are known as natural guardian.

The Guardians and Wards Act, 1890 gives the provision that how the guardians are appointed by the court and based on this only the guardians for shared parenting is appointed. Section 17 of this act states for the appointment of guardians based on welfare of the child. It further states the provision that the welfare of the child will also depend on the child’s age, sex, religion of the child, then the personal background of the guardian and so on. If the child is mature enough to have an intelligence preference, them the court has to approve by the same. In case of Sheila B.Das Vs P.R.Sugasree,[9] the female child was an old to have the intelligence preference, so the court gave the custody of the child to her father, based on her preference.

The same is with the Hindu Minority and Guardianship Act, 1956. The section 13 of this act states that the appointment of the guardian is based on the welfare of the child. In the case Suharabi v. D. Mohammed,[10] the father wanted the custody of the child. His contention was that the wife was poor so the custody should be given to him. But the Kerala High court rejected this contention and based on the welfare of the child, the wife was granted with the custody of the child.

And in many situations of shared parenting responsibilities, it is based on the obiter dictum, where the case is based upon the decided cases. In the case of Ashish Ranjan v Anupama Tandon,[11] where the court stated that there was violation of the visiting rights by the mother. So, he mother was liable for contempt of the court. So, through this case it is clear that both should be treated equally.

The section 26 of Hindu Marriage act, 1955[12] also gives some provision on shared parenting responsibility. It authorizes the court to pass the interim order with respect to custody and maintenance of the child, with their wish. And this section also gives the chance to revoke the order. It is also provided in section 49 of the Parsi Marriage and Divorce Act, 1936 [13]and section 41 of the Indian Divorce Act, 1869[14].

 

CONCLUSION

The shared parenting responsibilities is a new concept evolved from differ nations like USA, Australia, France and so on. The dissolution of marriage cause affect to the child. The court has discretion to give the custody of the child either of the parents. So, this single parenting affects the child in many ways especially the psychological affects. The child is the most affected being after the divorce. This may also mislead the child, when the socialized by a single parent, to crime field and so on. That is the reason, through precedents the court has come to the conclusion of joint custody or shared parenting responsibility. Through this concept the custody of the child is given to one parent and other parent is given the visiting pass. In international law, the United Nation Convention on the Rights of the Child has given the guidelines for this concept. There is other Indian law which has discussed the provisions for this concept.

– Shreya

Symbiosis Law School

 



[1] Criminal appeal no. 395 of 2015

[2] Buchannan, M. & Dornbusch, Adolescents After Divorce, Harvard University Press (1996)

[3]FAO No.1326 of 2014(O&M)

[4] Civil appeal Nos. 6390/2005

[5] CIVIL APPEAL Nos. 7232-7233 of 2012

[6] 2012 (2) RCR (Civil) 974 (SC)

[7]Convention on the Rights of the Child, Art. 3, (1989)

[8] Convention on the Rights of the Child, Art. 9, (1989)

[9] 2006 (1) RCR (Civil) 758 (SC)

[10] AIR 1988 Ker 36

[11] Contempt Petition (Civil) No. 394 of 2009)

[12] Section 26 in The Hindu Marriage Act, 1955, , https://indiankanoon.org/doc/972693/ (last visited Mar 22, 2019).

[13] Section 49 in The Parsi Marriage and Divorce Act, 1936, , https://indiankanoon.org/doc/877172/ (last visited Mar 22, 2019).

[14] Section 41 in THE DIVORCE ACT, 1869, , https://indiankanoon.org/doc/1265253/ (last visited Mar 22, 2019).

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