India’s Recent Efforts at Doing Away with Gender Bias in Child Custody Laws that Favor Fathers

The Law Commission of India, which advises the Indian government on legal issues, recently made recommendations that divorced parents be given joint custody of minor children.

This recommendation was made in an effort to quell India’s prevalent gender bias in child custody laws that favor fathers over mothers. Directly impacted by this recommendation would be families of divorce as well as family law lawyers in India.

This new proposal would amend the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890 which preferred fathers over mothers as natural guardians. Only under extraordinary circumstances are mothers preferred as natural guardians of a child over fathers.

Ultimately, the health and well-being of a minor child or minor children are given most consideration when determining custody. The report to the law ministry stated that “neither the father nor the mother of a minor can, as of a right, claim to be appointed by the court as the guardian unless such an appointment is for the welfare of the minor.”

The Law Commission sees this as a pivotal move to achieve the principles of Article 14 of the Constitution of India, which states, “Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”

Essentially, this is a progressive step forward in a modern direction from India’s longstanding gender bias pertaining to child custody laws.