A Legal Case for Shared Parenting

Provisions in the Indian Constitution related to Children’s Rights

There are not too many provisions in the Indian Constitution which talk explicitly about the rights of children, and the rights & duties of parents towards children. Article 39(f) briefly touches upon this topic, but only in passing reference.

Article 39(f) That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment

However, this Article, being a part of the Directive Principles, is not really enforceable.

Apart from the above, the rights of children and parents are protected only in a generic sense by the rights protected under Part III

Procedure to be followed in the absence of domestic law

Issues such as custody of children, visitation rights, ‘best interest of children’ and responsibility of parenting have not been codified well under Indian law. While there is some coverage under Acts such as the Guardians & Wards Act 1898, the Hindu Marriage Act 1955 and the Prevention of Women From Domestic Violence Act 2005, the focus of the provisions under these Acts is more on the procedure to be followed with respect to these issues, rather than defining what considerations should go into determining custody, visitation and ‘best interest of child’.

It is therefore safe to say that there is NO clear domestic law on these topics.

The judiciary, over the course of several decades and judgements, has used the power of discretion it wields, to determine ‘best interest of child’ in adjudicating most of the cases involving disputes over custody.  However, in the recent judgement in “Justice K S Puttaswamy and Anr Vs Union of India and Ors”  the Supreme Court of India has laid down very clear guidelines on the process to be followed in such situations.

The honorable Supreme Court has said that in the absence of clear domestic law or legislation on any front, the relevant International law has to be construed as part of domestic law.

In para 91 (page 91) the Court says

In the view of this Court, international law has to be construed as a part of domestic law in the absence of legislation to the contrary and, perhaps more significantly, the meaning of constitutional guarantees must be illuminated by the content of international conventions to which India is a party

In the same judgement, in para 133 (page 130) the Court says

On the contrary, constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime. India is a responsible member of the international community and the Court must adopt an interpretation which abides by the international commitments made by the country particularly where its constitutional and statutory mandates indicate no deviation. In fact, the enactment of the Human Rights Act by Parliament would indicate a legislative desire to implement the human rights regime founded on constitutional values and international conventions acceded to by India

Thus it becomes clear that International treaties and legislation, to which India is a party, must be considered as domestic law itself and adhered to, especially in cases where there is no explicit domestic legislation to the opposite effect.

Convention on the Rights of the Child

On the 2nd of September 1990, the United Nations Children’s Fund (UNICEF) came out with a Convention on the Rights of the Child. In its own words, the convention is defined as follows

The Convention on the Rights of the Child is an international treaty that recognizes the human rights of children, defined as persons up to the age of 18 years. The Convention establishes in international law that States Parties must ensure that all children—without discrimination in any form—benefit from special protection measures and assistance; have access to services such as education and health care; can develop their personalities, abilities and talents to the fullest potential; grow up in an environment of happiness, love and understanding; and are informed about and participate in, achieving their rights in an accessible and active manner

India is a party to this treaty.

The Convention contains several articles that confer rights on children on various aspects of their development. However, some articles that are relevant from the point of view of a child whose parents are separated are as below

Article 9(1) Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child

Article 9(3) Parties shall 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, except if it is contrary to the child’s best interests”

“Article 14(2) Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child”

“Article 18(1) Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern”

“Article 29(c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own”

In summary, the rights conferred by the treaty, on children, and parents, can be summarized as follows

  1. Children cannot be separated from any of their parents, against the will of the parents
  2. Children have a right to maintain relations and contact with both their parents
  3. Parents have common (read as equal) responsibilities for the upbringing and development of the child
  4. Only under extreme scenarios, and if also in best interest of the child, can the above rights be restricted

Manifestation of existing practices on children’s rights

Under Indian jurisprudence, it is common practice to grant custody and guardianship to one parent and allow only visitation rights to the other parent. Even under the best circumstances, the non-custodial parent gets visitation rights to the extent of only a few hours a week. Over the course of a year, the non-custodial parent may get, under the very best of circumstances, a total of 30 days (aggregate) custody of the child. This translates to less than 10% of the time of the child.

Needless to say, due to such reduced access to the child, the child is denied the chance to maintain appropriate relations and contact with the non-custodial parent.

Viewing the same from the angle of the non-custodial parent, minimal custody and visitation rights renders it impossible to fulfill his or her duty towards the child, except perhaps financial obligations which can be discharged even without physical access to the child (through maintenance support and so on). The non-custodial parent has very limited, almost non-existent, opportunity in areas such as education of the child, imparting of moral and social values, developing respect in the child for culture, identity, language and the nation.

Thus, the prevalent practice of limited visitation rights greatly destroys the rights of the child, and the non-custodial parent, as guaranteed by the Convention on the Rights of the Child. In other words, it applies restrictions on the rights of the child and the non-custodial parent.

Restrictions on Rights – need for non-excessiveness

Under Indian law, it is very much allowed for the State to restrict the rights of an individual. However, the restrictions must possess several attributes for it to become applicable.

Udai Raj Rai, in his book “Fundamental Rights And Their Enforcement”, gives a descriptive list of the attributes that ‘reasonable restrictions’ must possess in order for them to become applicable. Few examples are

  • Restriction should not disproportionate
  • Restriction should not be more than necessary to prevent the evil sought to be remedied
  • Restriction should not be more than necessary to achieve the stated objective

In addition to the above, there are two important attributes of reasonable restrictions that must be adhered to

  1. The restriction should not be excessive
  2. The vagueness of statutory provision may make the restriction excessive or disproportionate

The Supreme Court of India also, over various judgements, has held the above to be valid tests of the reasonableness of a restriction.

In Chitaman Rao vs the State of Madhya Pradesh, the Supreme Court said

The phrase ‘reasonable restriction’ connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public

In State of Madras vs V G Row, the Supreme Court said

The nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict

It becomes quite clear from all the above that even when the right of an individual has to be restricted due to circumstances, it must never be excessive.

In other words every opportunity must be ensured that the individual gets to exercise his or her right to the maximum extent possible.

Shared parenting as the go-to solution

This article will not venture into discussing the concept of ‘Shared Parenting’. In short, shared parenting refers to a collaborative arrangement in child custody or divorce determinations in which both parents have the right and responsibility of being involved in the raising of the child(ren). Both parents obtain equal custody rights under this method, and also bear equal responsibility on other aspects of the child’s development as well.

There has been a considerable amount of research that shows shared parenting to be a very effective instrument in reducing the ill-effects on a child that has to grow under separated parents.

From the point of view of this write-up, it is quite clear that under shared parenting, the child

  • Is guaranteed equal access to both the parents
  • Gets an opportunity to maintain equal relations with both parents
  • Gets equal aid/attention from both his parents towards his or her physical, mental, social, moral and cultural development

From the point of view of the parents, shared parenting ensures

  • Both parents get equal responsibility, and opportunity, towards upbringing of their child(ren)

Research has established numerous other benefits of shared parenting, as it is the closest that comes to co-parenting. However, only the ones that are relevant from the point of view of enabling the rights of the child and parents have been mentioned here.

Conclusion

In the absence of clear domestic law, the Conventions on the Rights of the Child has to be adopted as part of Indian law. The said law grants several rights to the child which assure equal care from, and equal access to, both the parents. The said law also imposes duties on both parents towards upbringing of their child, even when separated.

Shared parenting is the only arrangement that can come close to fulfilling the requirements of the UN treaty, in the case of separated parents and upbringing of their common child.

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