• Custody of child below five years

As per law commission257th report custody of minor below five years should be make flexible.what do you mean from this.
Asked 3 years ago in Family Law from Chandigarh, Chandigarh
Religion: Sikh
1) As per law commission report joint custody should be given to parents 

2) recently in Mumbai following law commission report family court declined to give mother full custody . Joint custody was given to both parents 

3) by joint custody court had mentioned physical custody be given to one parent for 183days and other parent for 182 days

4) non custodial parent would have access to child every Sunday between 10 am to 6 pm
Ajay Sethi
Advocate, Mumbai
45671 Answers
2686 Consultations

5.0 on 5.0

Earlier the custody of child below five years of age was  given to the mother of the child only which was mandatory.  But now the law reforms say that due to circumstances of the mother not in good mental state of health or economic status or of loose moral, the rule may be relaxed flexibly. 
T Kalaiselvan
Advocate, Vellore
35836 Answers
390 Consultations

5.0 on 5.0

In its 257th report on 'Reforms in Guardianship and Custody Laws in India', the commission said the change in laws will let courts to consider awarding joint custody of children in circumstances beneficial to the welfare of the child.

At present, courts in India award a minor's custody to one parent or the other depending on who they think will ensure the child's welfare, though the legal position is different in Hindu law, which considers the father the natural guardian, and other secular laws, which consider the mother the natural guardian of a child.

According commission children are the worst affected in proceedings of divorce and family breakdowns. Often, parents use children as pawns to strike their own bargains, without considering the emotional, social and mental upheavals that the children may face.

"This imbalance is addressed  through changes to the law that will place a duty upon the court to uphold the child's welfare in every case. This will ensure that the child's future is safe and protected, regardless of changing familial circumstances
Courts in India have recognised the welfare principle, but the framework is desired changes, so  a new chapter on custody and visitation arrangements in the Guardians and Wards Act, 1890.Even now child’s grandparents can also apply for a grandparenting time order under the amended provisions. 
Sudershani Ray
Advocate, New Delhi
192 Answers
42 Consultations

4.6 on 5.0

Presently the mother is considered to be the natural guardian of a child below 5 years of age. As a corollary thereto, the preference, unless rebutted, is given to her in so far as the issue of child custody is concerned. The law commission has proposed a change in this legal position.
Ashish Davessar
Advocate, Jaipur
22977 Answers
634 Consultations

5.0 on 5.0

According to section 6 of Hindu minority and guardianship act, mother is the natural guardian of child up to the age of 5 years thereafter father will be the natural guardian.

law commission has given its report on this subject for liberalizing the present concept in deciding the matter of guardianship of child in divorce matters.

Generally court gives order of custody of child below the age of 5 years to his mother irrespective of his welfare of child. this report  providing equal legal status of both parents with respect to guardianship and custody, so parents have equal right over the child and court should take care of welfare of child and order should be made accordingly.
Shivendra Pratap Singh
Advocate, Lucknow
5066 Answers
78 Consultations

4.9 on 5.0

Law Commission of India has released its latest Report on “Reforms in Guardianship and Custody Laws in India”. The report highlights the study conducted by LCI into the issue of adopting ‘shared parenting system’ in India.Earlier in November, 2014, the Commission had issued a Consultation Paper, analyzing shared parentage systems across the world and reviewing the existing law in India. It also posed a set of questions pertaining to shared parenting and invited comments from the public.The views of the Commission centered around-(i) Strengthening the welfare principle in the Guardians and Wards Act, 1890 and emphasize its relevance in each aspect of guardianship and custody related decision-making;(ii) Providing for equal legal status of both parents with respect to guardianship and custody;(iii) Providing detailed guidelines to help decision-makers assess what custodial and guardianship arrangement serves the welfare of the child in specific situations; and(iv) Providing for the option of awarding joint custody to both parents, in certain circumstances conducive to the welfare of the childIt has recommended the following amendments to the Hindu Minority and Guardians Act, 1956:It analyses Section 6 (a) of the Act, which lists the natural guardians of a Hindu minor in respect of the minor’s person and property. In the case of a boy or an unmarried girl, this section clearly states that the natural guardian of a Hindu minor is the father, and after him the mother. The Commission notes that even after the Supreme Court’s judgment in Gita Hariharan v Reserve Bank of India, the mother can become a natural guardian during the lifetime of the father only in exceptional circumstances.The report says that this is required to be change “to fulfil the principles of equality enshrined in Article 14 of the Constitution.” Accordingly, the Law Commission recommended that this superiority of one parent over the other should be removed, and that both the mother and the father should be regarded, simultaneously, as the natural guardians of a minor. The welfare of the minor must be the paramount consideration in every circumstance.It has recommended changes to Section 7 as well. This section provides that the natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother. The language of this section is incongruous in that it refers only to the natural guardianship of an adopted son, and does not refer to an adopted daughter.The Hindu Minority and Guardianship Act, 1956 came into force at a time when the general Hindu law as administered by the courts did not recognise the adoption of a daughter. Thus, at the time of passing of the Act, the adoption of daughters was only allowed under custom and not under codified law. It was also enacted before the Hindu Adoptions and Maintenance Act, 1956, which corrected the legal position of adoption of a daughter statutorily.It hence recommends that now the Act should include both an adopted son and an adopted daughter within the scope of natural guardianship.Further, the Commission recommended that the natural guardians of an adopted child should include both the adoptive parents, in keeping with its recommendations to Section 6(a) provided above.The Report recommended the following amendments to the Guardians and Wards Act, 1890:Section 17 provides for matters to be considered by the court in appointing the guardian of a minor, and requires the welfare of a minor to be consistent with the laws to which the minor is subject.In the past, Section 17 was read with Section 19 of this Act (which deals with the preferential right of natural guardianship). Aefore being amended by the Personal Laws (Amendment) Act, 2010, it included the mother along with the father as a natural guardian of the child, and changed the position of the law slightly. However, the welfare of the child was still not, under law, truly the paramount consideration in such matters.The Commission therefore recommended that in the appointment or declaration of a guardian, the welfare of the minor must be paramount, and everything else must be secondary to this consideration.Section 25 of the Act provides for the arrest of a ward if the ward leaves or is removed from the custody of his guardian, if such arrest is for the welfare of the ward. The Commission recommends doing away with the concept of arrest of a minor, which is an “archaic one”.It recommends a substitute section, replacing ‘arrest’ with the requirement to return the ward to the custody of his or her guardian. Again, the Commission reiterates the necessity of placing the welfare of the minor as the paramount consideration.Second, the present text of the law is unclear as to whether a guardian who has never had custody of a minor is entitled to the relief under this section. This needs to be clarified, and accordingly, the Law Commission reiterated the recommendations of the 83rd report as regards the language of the provision to specifically state that it applies in cases where the child is not in the custody of the guardian, though the latter is entitled to such custody.
Nadeem Qureshi
Advocate, New Delhi
4866 Answers
221 Consultations

4.9 on 5.0

1. It means that it should not be compulsory that custody of child of ager less than 5 years should be granted to mother only even if it goes against the welfare of the child,

2. Custody of child in such cases should be decided based on welfare of the child after hearing both the parties.
Krishna Kishore Ganguly
Advocate, Kolkata
18520 Answers
449 Consultations

5.0 on 5.0

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