Guidelines Governing Child Custody Cases Likely To Be Finalised Within 2-3 Months: Union Govt Tells Karnataka High Court

The Union Government on Thursday informed the Karnataka High Court that it is in the process of framing guidelines to be followed while determining issues of child custody, and it would positively come out with them within two to three months.

A division bench of Chief Justice N V Anjaria and Justice M I Arun while hearing a suo-motu petition in its order noted, “Advocate Sadhana Desai appearing for the Union of India informed the court that it (UoI) is seized with the task of framing guidelines on the very subject and views of the State Governments and Union Territories are being solicited. It was stated that within 2 to 3 months the guidelines are likely to be finalised.”

Following which, it directed the Union to file an affidavit stating the above facts and timeline it will require to finalise the guidelines as well as the process which will be undertaken in this regard. Accordingly, it posted the matter for further hearing on March 19.

The petition cites cross-border migration as a factor of increased personal conflict between adults and states that conventional methods of conflict resolution are fast failing. “At the epicenter of complicated family conflicts are children who get stuck in custodial battles. Custodial battles more often have to do with the bruised egos and adamant attitudes of adults than with concern for the child's wellbeing,” it adds.

Emphasising that children need a safe and stable environment in which to thrive and mature into well-functioning adults, the plea says, “The most common cases of custody that the courts of law deal with are from separations or dissolutions of marriage. However, courts are also confronted by cases of relocation, abandonment, neglect, abuse, mental health concerns, parents who are psychologically/financially/physically unfit to care for their children, other relatives such as grandparents/aunts/uncles/community members claiming custody, etc.”

The plea also points out that there is no uniformity in the definition of "natural guardian" across various personal laws and states that it is necessary for guidelines to take this into consideration and properly assess the psyche of the child prior to passing an order granting custody.

The plea states that the government should synthesize the extant law and best practices into guidelines, including scientific and professional knowledge with regard to a child's psychological best interest, and constitute facilities with appropriate experts to evaluate the same.

“The guidelines may recommend how to correctly weigh the various other considerations that are placed before the court, and arrive at a conclusive solution that is best for the child, and fairest for the involved adults...The Child must not feel any form of parental alienation at the behest of an ongoing custody battle...The guidelines may incorporate such modern channels of communication into custody orders as well, rather than limiting relief to physical meetings," it says.

It adds, “The custodian must ensure complete well-being of children and must enable the child/children to have easy access to their rights such as right to education, right to food, right to shelter, right to sanitation, right to healthcare etc. The custodian must at all cost protect the welfare of the child, if the same is not ensured a cascading effect will wreak devastating consequences on the growth and development of the child. Hence it is necessary for guidelines to ensure that the custodian is held accountable for the well being of the child.”

Case Title: The High Court Of Karnataka And Union of Indian & ANR

Case No: WP 24360/2023

Appearance: Amicus Curiae Dhyan Chinnappa a/w Advocate Nayana Tara B.G

Advocate Sadhana Desai for R1.

AGA Niloufer Akbar for R2.