Is the Law Commission's proposal for joint custody of minors in case of divorce a "welcome step" or will it "encroach upon a mother's right over her child" -- this is a question over which experts are divided.
A "good thought" for the "welfare of the child" was the view of those supporting the recommendation who, however, wondered whether it would be "practical", while those opposed to it said such a move would take away the "mother's right of natural custody" and the father should only be given "visitation right".
Lok Sabha MP and advocate Meenakshi Lekhi said the joint custody is for the welfare of the child, who should get the care of both parents.
Her view that it is a well-drafted report by the Law Commission got support from women lawyers Geeta Luthra and Priya Hingorani, who termed it a "welcome step".
While Luthra, a senior advocate, said joint custody would increase access of the child to non-custodial parent, Hingorani noted that though it is a step in the right direction, "the idea will not work in India in the present scenario".
Differing with them, senior advocate Colin Gonsalves and rights activist Ranjana Kumari said joint custody may be a solution in certain matters but it cannot be a remedy in all cases as it will not go in favour of women.
Kumari, Director of Centre For Social Research, said "The idea of joint custody would take away the mother's right of natural custody and it would not be good for the child also."
"It's an idea which will not work in favour of the woman because she would not be having her independent resources. It will not be good for the child also. "As far as money for joint expenditure is concerned, it is okay as it will help in child's welfare. But regarding physical custody of a minor, joint custody is not a practical idea," she said. Her views were supported by Gonsalves, who strongly favoured custody of child to the mother in "almost all the cases".
"I don't agree with the idea of joint custody. The custody of a child of less than five years should be given to the mother and father should get the visitation rights. "In cases where a man is abusive to his wife, giving the child's custody to him will not be a good idea," he said.
The Law Commission's recent report on 'Reforms in Guardianship and Custody Laws in India' suggests amendments to existing laws to emphasise the "welfare of the child" in custody and guardianship matters and introduces the concept of joint custody as an option to be considered in certain cases.
The report provides for equal legal status to both parents with respect to guardianship and custody and also gives an option of awarding joint custody to them in certain cases where it is conducive to the welfare of the child.