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India is great (Service)     28 March 2015

Is a petition for joint custody is maintainable in court

Respected Member

Subject: Whether a  petition for Joint Custody is maintainable in court under existing GW Act  1890 and the Hindu Minority and Guardianship Act, 1956.



1.               In the present Scenario when a custody battle began between Husband and Wife  the Child actually suffers. the conflict situation damage child's over-all development, it may be physical or psychological. Because due to tender age a child can not speak for itself. often the opinion of a child is controlled  by the ego  custodian parent.

 2.         The above mentioned two Act says that THE WELFARE OF CHILD IS THE PARAMOUNT. Court is the custodian for enforcement of law. The paramount welfare of child is incomplete if the child is deprived of/ not getting equal and quality access to both parents. So shared parentage is must and Compulsory  to enforce child welfare in most of the cases. 

3.              the terms 'joint' or 'shared' do not mean giving physical custody to parents with 'mechanical' equality, and it is here that judicial pragmatism and creativity is going to play a huge role in developing this concept further. such arrangements followed in US, Canada, Australia, UK and many other countries. 

4.              However the Guardians and Wards, Act, 1890 and the Hindu Minority and Guardianship Act, 1956. Both the acts are silent on joint custody or shared parentage for children of divorcing/ separated/ hostile   parents. 

5.              At present, in judicial practice, there is neither a presumption that father is the natural guardian nor a presumption that mother is biologically better equipped to care for the minor.

6.            In US there are generally two forms of joint custody — joint legal custody and joint physical custody. Joint legal custody "means both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, health care...." Joint physical custody "means that physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents".   

My Question:

           very soon i am going to apply for child custody and visitation. it is for the last two years my in-laws and wife not allowing me to meet my daughter who is now 4 Yrs 06 moths. due to my service commitment i was staying 2500 km away from my native place. now i have moved to my native and my in-laws house is also in same area. though presently a  lot of stress and strain between both of US ( 498A, 125 CrPC-  i am regularly paying int maintenance) but i am practically in a opinion that our child should have access to both parents. i am not in favor of solo custody. i am here not to win a game rather to ensure the liberty of life to my child.  so can my petition be drafted and presented before Hon Court  in such a manner where joint / shared custody is to be deciding factor. is such move will give a fair image of myself in front of judge ? my advocate is not agree with me and want to proceed for solo custody (may be due to technicality of above mentioned law).


 4 Replies

Ramesh (student)     28 March 2015

Dear sir,

6 month child custody in an year to both father and mother: Karnataka HC

In a landmark judgment related to child custody, Karnataka high court has allowed father to have custody of his son for first 6 month of the year, and the next 6 months with the mother.  One of the reasons behind the decision was that the father has fought for custody for eight years, so he must love his son very much.  Very well but maybe courts need to evolve more sensible and humane criteria than the amount of time a father has spent in courts to ascertain how much father loves his child.  It should be a presumption unless proven otherwise.




1 Like

Adv. Chandrasekhar (Advocate)     28 March 2015

I really appreciate the way how you put the things.  I suggest you to prepare a petition yourself and also go on showing the latest trends in foreign courts about shared parenting.  In the meantime, as usual, you should ask for visitation rights.  I do not know which part of India your case is pending, if it is metropolitan city like Delhi even the first court also has got capacity to understand your concerns and try to accommodate your view points.  If you get any upset at the first court, the appellate court and finally supreme court will come into your aid.  The proposition made by you use much practical in your case, because you are living in a nearby place where the child is at present residing and hence shared parenting will not disturb his other enviornment.  Wish you my best luck and I remind you that marathon starts with a small step.

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T. Kalaiselvan, Advocate (Advocate)     02 April 2015

As rightly  suggested by learned Advocate Mr. Chandrasekar, you can bell the cat, lets see how much the ringing sound of the bell will be heard or reach the people and who will listen to the voice raised. Appreciable move indeed.  Go ahead and keep posted the updates, all the best.

1 Like

Adv k . mahesh (advocate)     02 April 2015

appreciate your thought and gesture to make such a move to high lighten the needed parents at this time who go out for their self satisfaction and does not listen to the elders or one side solution and leaving their loved one kids to their single parent fate

try to gather some judgements which high light the parents gesture to leave for the sake of kids and dont follow the latest trend of divorce which lead them a happy life 

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