The Uttarakhand High Court observed that the custody of the child has to be shared by both parents and grandparents in matrimonial disputes so that his/her emotional growth is not affected.

The Court observed thus in a writ petition filed by Advocate Shruti Joshi that addressed the issue relating to the impact that matrimonial dispute has on a child.

A Division Bench comprising Chief Justice Ritu Bahri and Justice Rakesh Thapliyal said, “This Court has been observing in the past that while dealing with the disputes of the parents the child’s emotional needs and proper emotional growth has never been examined and by the time litigation reaches the High Court the children have already faced agony for at least 5 to 9 years. 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 Bench added that the child has to bear many peer pressures when he grows up and that the individuals who have to get married and their parents should be made aware that when the children get married and they have a child, it is mandatory to follow the guidelines of share parenting laid down by the Shah Commission in its report dated May 22, 2015.

Petitioner Advocate Shruti Joshi appeared in person while Advocate General S.N. Babulkar appeared for the respondents.

Brief Facts -

A letter issued by Government of India, Ministry of Law & Justice to all the Law Secretaries and all the Registrar General of respective High Courts which relates to the proposal of Dr. Veena Madhav Tonapi, former Principal of JSS Sakri Law College, was handed over to the Advocate General, which pertains to the qualification of counsellors and adjustments in the conciliation process within the framework of Family Courts. As per this letter, a proposal for amendment for effective counselling, appointment of marriage counsellors and qualification for appointment of marriage counsellors was given. The proposed amendment did not lay down any criteria for appointment of any lawyer as a counsellor, so, in future, no lawyer can be appointed as a counsellor to assist in the matter of mediation.

Apart from the above, Shah Commission Report recommended that the Court should have the power to obtain an independent psychological evaluation of the child, in order to determine various related issues in the case of mediation, professional assistance may be required, as neither the court nor mediators may be qualified to understand child psychology. Apart from this observation, Law Commission recommended amendment of the Hindu Minority and Guardianship Act, 1956. In this case, as per the information given to the Court, in the Punjab and Haryana High Court, the Union of India submitted the report that consent of all the States except State of Bihar was received.

The High Court in view of the above facts observed, “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 recommendations of amendment proposed in the Hindu Minority and Guardianship Act, 1956, Annexure no. 1, and Guardianship and Wards Act, 1890 as Annexure No. 2 have laid down in detail the meaning of the word joint custody, procedure to be followed during mediation and procedure to be followed for grant of joint custody, preferential of the child and, fixing grand parenting time.”

The Court added that they have laid down the parenting plan that should minimize the child’s exposure to harmful parental conflict and encourage parents to mutually agree on the division of responsibilities of the child’s upbringing through agreements in the parenting plan, rather than by relying on court intervention.

“This Court is not issuing writ of Mandamus for amendment. It is only giving directions that these proposed amendments should be mandatorily followed while dealing with the matrimonial disputes, custody cases dealt by the Family Courts and during mediation. The direction issued is mandatory subject to the amendment made by the Legislation”, it said.

The Court concluded that 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 far-away places.

Accordingly, the High Court disposed of the Public Interest Litigation.

Cause Title- Shruti Joshi v. State of Uttarakhand & Ors.


Petitioner: Advocate Shruti Joshi

Respondents: Advocate General S.N. Babulkar, Standing Counsels Rajeev Singh Bisht and V.K. Kaparuwan.

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