The Family Courts in Uttarakhand have been directed by the High Court to follow the recommendations laid out in the 257th Report of the Law Commission regarding alterations to guardianship and custody rules in cases involving child custody. The Division Bench, consisting of Chief Justice Ritu Bahri and Justice Rakesh Thapliyal, articulated the following remarks while issuing these directives:
“This Court is of the view that at this stage, 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.”
During a hearing on a Public Interest Litigation (PIL) initiated by Advocate Shruti Joshi regarding the emotional turmoil endured by children in marital disputes, the Court reviewed a communication from the Ministry of Law & Justice, Government of India, outlining suggestions for revamping the counseling procedure in Family Courts.
In addition to the aforementioned proposal, the Bench highlighted the recommendations of the Law Commission, spearheaded by Justice AP Shah, proposing to empower the Court to procure an ‘independent psychological evaluation’ of the child. This would enable the Court to seek expert assistance in comprehending the child’s mental state.
The Court stressed the importance of shared custody arrangements for the child, involving both parents and grandparents. It emphasized the need for reaching mutual agreements delineating the distribution of responsibilities concerning the child’s upbringing through the formalization of agreements within a parenting plan. This approach is advocated as superior to relying solely on judicial intervention.
“As nine years have gone by and the amendment has not been carried out which may take more time, the responsibility of the next generation who has to get marry and their parents towards the child who was born should be crystallized and should be followed with emotional care and without any ego,” the Court added.
Although the Court was reluctant to issue a writ of mandamus to enact amendments, it firmly stated that these guidelines must be followed in the resolution of marital disputes, custody cases in Family Courts, and during the mediation process.
“In the present case, since Uttarakhand is a hilly State, steps have already been taken for effective mediation and counselling can be done through WhatsApp and other electronic mode so that parties have not to travel from faraway places,” it added.
