Joint Custody: The Rule or the Exception?

Introduction  

Since independence, the sole custody has been the ‘straight-jacket formula’ for all kinds of custody disputes in Indian jurisprudence. Under the current system, the dichotomy of natural guardianship of a child for Hindus is primarily vested under Section 6(a) of the Hindu Minority and Guardianship Act (‘HMGA’), which explicitly states that ‘in the case of a boy or an unmarried girl—the father, and after him, the mother’ favouring one gender over the other. Islamic law is often described as patriarchal by some scholars due to its traditional interpretations, which tend to place men in dominant roles in family and societal structures. Under this, although the father holds the natural guardianship, the mother is granted the right to custody for a certain period under the principle of Hizanat. While these laws have been deeply rooted in our current jurisprudence, there is an urgent requirement for an overhaul in our statutes. Given the long-standing legal norms, the question arises: if our statutes are due for an overhaul, what should replace the prevailing sole custody norm? One viable alternative, unrecognized in our legal discourse, is joint custody. 

The concept of joint custody, however, is still treated as an exception rather than the rule. Despite its growing recognition and the successful implementation of shared parenting models in countries like Australia, the Netherlands, and the United States, the idea of both parents having equal responsibility over the child remains largely overlooked in Indian jurisprudence. Courts have been passively using the concept of joint custody to provide complete justice in specific cases, indicating a gradual but informal acceptance. Furthermore, the Law Commission of India Report No. 257, named ‘Reforms in Guardianship and Custody Laws in India’, recommended the inclusion of joint custody aligning with the welfare of the child. Despite these developments, the formal adoption of joint custody in Indian law remains remarkably absent, raising the question: Why has this progressive concept not yet been codified into our legal framework?  

To answer this: it is important to grasp the essence of this concept, the term ‘joint custody’ encompasses both the physical and the legal custody of a child. The International Council on Shared Parenting (‘ICSP’) at its conference held at Bonn, Germany in 2014 arrived at a consensus that the term ‘shared parenting’ refers to the daily upbringing and wellbeing of the children as well as shared parental power (decision-making). It is based on a 50-50 parenting time model. In this context, the doctrine of parens patriae, also known as 'parents of the fatherland', which vests the state, particularly the judiciary, with the responsibility to act as the guardian of those who cannot protect themselves becomes particularly relevant. Indian courts have long invoked parens patriae to make custody decisions in the child’s best interests. However, this doctrine has traditionally been applied within a sole custody framework, where one parent is deemed more ‘fit’ than the other. A shift toward joint custody would align parens patriae with modern psychological and legal understandings of child welfare, recognizing that, except in cases of abuse or neglect, a child benefits most from the active involvement of both parents. The devotion and care of both parents help a child more than single-handed guardianship of one. 

The Judicial Ambiguity  

The open-ended nature of custodial decisions has granted judges wide discretionary powers, which can potentially lead to biases in their judgments. Moreover, the emotional and financial well-being of a parent blocks a possible reunion with the child, ultimately affecting the child’s mental well-being. Under Section 17 of the Guardians and Wards Act (‘GWA’), which talks about 'Matters to be considered by Courts while appointing guardian.' Courts are mandated to consider the child's welfare as the paramount factor while appointing a guardian, but the statute does not explicitly provide for joint custody as a viable option. To elaborate, it is essential to understand the current jurisprudence on child custody award in our country. 

In Gita Hariharan v. Reserve Bank of India, the Supreme Court attempted to reinterpret Section 6(a) of the HMGA. The court ruled that the word ‘after’ should not be understood strictly as ‘after the death of the father’ but could also mean ‘in the absence of the father’, whether temporary, due to neglect, illness, or other circumstances. However, this ruling did not eliminate the inherent gender bias within the provision. By merely modifying the interpretation of ‘after,’ the Court still upheld the father as the primary natural guardian and the mother as a secondary option who could step in only when the father was unavailable, unwilling, or incapable. A more progressive approach would have been for the court to direct the legislature to amend the provision entirely and remove the word ‘after’ in its entirety. This would have ensured that both parents stand on equal footing as natural guardians from the outset, rather than positioning the mother as a substitute.  

Also, in Vivek Singh v. Romani Singh, the Supreme Court acknowledged that the child was happy staying with his father. However, it ultimately awarded custody to the mother, reasoning that her continuous presence was ‘absolutely essential’ for the child’s well-being, the court referenced that a child's fundamental need is the care and affection of the mother. This reasoning, however, reinforces the traditional preference for maternal custody, despite both parents being financially secure and capable of providing for the child. Rather than opting for a joint custody arrangement, which would have ensured balanced parental involvement, the Court upheld the conventional sole custody model. 

To sum up, Indian Courts are tinkering on a thin thread where neither the presumption of the father being the natural guardian, nor the mother being a better biological parent exist. The plausible result is to look towards the introduction of shared parentage as a breakthrough. The 257th report stated that children need both their mother and father for adequate growth and bonding, this would also help to avoid gender-based stereotypes such as a girl can only be raised by the mother or a boy by the father. It is important to understand that both parents have meaningful contributions to formulate the life of a child irrespective of their gender.  

Despite all this, there has been a gradual but informal shift in judicial attitudes, with courts occasionally granting joint custody in the recent times, such as, in an order dated March 6 2024, the Uttarakhand High Court directed all the Family courts within its jurisdiction to follow the directives produced in the 257th report. The Division Bench noted that, ‘this direction is necessary to be given that the child's custody has to be shared by both the parents as well as by the grand-parents so that his emotional growth is not affected. The child has to bear many peer pressure when he grows up.’ In 2016, a report on ‘Child’s adjustment in a joint parentage setting’ revealed better outcomes in family conjunction and self-understanding, which further affirms the positive outcomes this concept uphold. This paper revolved around 19 studies which reflected better outcomes for children in the joint-custody setting. 

In K.M. Vinaya v. B. Srinivas, wherein the court noted the utmost and paramount importance given to the welfare of the child as directed by the Supreme Court of India can be achieved through shared parenting. The Division Bench of the Karnataka High Court noted that, ‘The child can grow in the warmth atmosphere of the joint family. It will help in the sustainable growth of the child, whereas the minor has to stay alone with his maternal grandparents in the appellant's house. The father is a friend, philosopher and guide to the child. The overall development of the child can be possible with the love and affection of the father.’ The court further ordered a 6-month custody arrangement to both parents for the equal upbringing of the child, wherein the custody of the child would revolve around both parents during the first and the second half of a year. This case was later reaffirmed by the Supreme Court in 2015. 

A similar stance was upheld in Smt. Savitha Seetharam v. Sri Rajiv Vijayasarathy Rathnam, where the Karnataka High Court acknowledged potential demerits of the concept, such as a parent being an habitual perpetrator of domestic violence, child abuse etc, but affirms that these concerns should not lead to a complete negation of the concept, as it remains a valuable and important approach when implemented in the best interests of the child. In this regard, the court referred to the implementation of this shared parentage model by referring to overseas jurisprudence and applying it into the Indian judicial system. While focusing on the welfare model, the court also focused on a ‘post-divorce parenting plan’ which should be deemed essential for a joint custody model.  

The Global Perspective  

In Braiman v. Braiman, the court of appeal in New York approved a shared/joint custody setting for both parents and mentioned that it is, ‘encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion’. By 2013, thirty-six out of fifty states had legalized joint custody in the United States of America, either through presumption, preference, or by enacting statutory language that supports cooperative parenting.

Under the Family Law Amendment (Shared Parental Responsibility) Act of Australia, Section 61DA states the ‘Presumption of equal shared parental responsibility when making parenting orders’, which signifies the best interest of a child by reference towards joint and shared parenting, subjected to conditions mentioned under Section 61DA (2), which further demarcates the importance given to this concept around different jurisdictions.  

In 1996, the Dutch Parliament of Netherlands passed a law that presumed joint legal custody as the standard for post-divorce parenting. Beginning in 2009, a parenting plan predicated on the idea of shared parentage must be included with every divorce. The plan needs to specify how parents will communicate and confer with one another when making parenting decisions, how care and parenting duties will be divided, and how much it will cost to raise children. Before starting the divorce process, the judge may choose to send the parents to a mediator to work out a plan if they are unable to agree on it or if it is unacceptable. According to a 2012 survey, 71% of Dutch people are in favour of co-parenting following a divorce.  

The Future Outlook  

Jane D. Hull, an American Politician stated, ‘At the end of the day, the most overwhelming key to a child's success is the positive involvement of parents.’ Today, the joint custody model in India stands as an exception rather than the norm, often only considered on a case-by-case basis. While judicial interpretations and growing awareness have started to hint at its benefits, the absence of a formal legal framework to guide its implementation leaves many children and parents navigating uncertain and fragmented custodial arrangements. Section 17 of the GWA outlines the factors that the court must consider when appointing a guardian. To address this lacuna, it is critical that this provision be amended to explicitly include joint custody as a key consideration, it can further include a clause 6 which states about the court’s discretion to consider the custody type for the best interest of the child,  giving primacy and understanding to the necessities of both parents participating equally in the child's upbringing. Furthermore, a clear definition of joint custody arrangement should be included under the definitions clause i.e. Section 4 of the GWA.  

To facilitate a smooth transition to the implementation of joint custody, alternative dispute resolution (‘ADR’) mechanisms, such as mediation, could play a pivotal role in resolving such disputes. By providing a structured yet flexible environment, ADR enables parents to negotiate parenting arrangements that consider and even provide clarity to them regarding the type of custodial arrangement they should actually rely upon. Moreover, the Courts can adopt a Shared Cost Model from the Netherlands which ensures an equitable distribution of child-rearing expenses categorized into fixed and variable costs. Consider the situation where A’s father B and A’s mother C can divide fixed costs equally such as education, medical expenses etc. and the variable costs such as food, entertainment which are for a temporary phase which will be determined by the 6-month custody arrangement determined in K.M. Vinaya. 

If the Indian jurisprudence truly prioritizes the welfare of the child, then it must move beyond the rigid preference for sole custody and seriously consider joint custody as a viable alternative in appropriate cases. While sole custody may still be necessary in certain cases, the legal framework must evolve to ensure that both parents remain actively involved in their child’s upbringing whenever possible. The law must evolve to reflect the realities of modern parenting, moving beyond rigid, outdated presumptions. Until joint custody is codified as a viable rule, custody decisions will lack the consistency and clarity needed to truly serve the best interests of the child. 

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This article has been authored by Parth Chhapolia, a student at the Jindal Global Law School, O.P Jindal University, Sonipat. This blog is part of the RSRR's Rolling Blog Series.