One of the ways to resolve the conundrum is, by the emerging concept of shared parenting. In some overseas jurisdictions, the concept of shared parenting has been in vogue and prevalent but not so well entrenched in India and has been ordered only in a handful of cases. It is necessary to remind ourselves that a child requires both parents, the mother and the father in jointly bringing up the child which would have a holistic impact on the overall growth of the child. This is because both parents have a joint responsibility in bringing up their children as each parent would contribute in a unique way to the mental, physical and emotional/psychological development of the child. Hence, whenever there is a separation between the parents, shared parenting would mean that the joint responsibility would continue subject to certain arrangements being put in place.{Para 9}
10. In this context, it is necessary to understand two terminologies, namely, joint physical custody and joint legal custody. Joint legal custody means that both parents have equal rights and responsibilities towards the child including the child's education and upbringing, whereas the joint physical custody would mean, both parents would share the physical custody of the child by spending equal time and having equal contact with the child.
11. The International Council on Shared Parenting (ICSP) at its conference held at Bonn, Germany, in July 2014 has arrived at certain areas of consensus as under:
(i) That "shared parenting" is defined to include both the shared parental authority (decision making) and shared parental responsibility for the day-to-day upbringing and welfare of the children, between both the parents keeping in mind children's age and stage of development. Thus, "shared parenting" is defined as the presumption of shared rights in regard to the parenting of children by fathers and mothers who are living together or apart.
(ii) Shared parenting is a post-divorce parenting arrangement for the optimal development of the child including children of high conflict parents. That if there is a 50-50 parent time, it would be an optimal time that each parent could expect during week days or week-ends, as the case may be.
(iii) There is also a consensus that shared parenting orders could be passed even if one parent opposes it. As shared parenting is in consensus with International Human Rights and Constitutional Rights of the children to be raised by both their parents.
(iv) Any judicial discretion to be exercised by the Court must be in the best interest of the children.
(v) Though the shared parenting would not apply to situations where there is violence and child abuse or maltreatment of the child in any form including parental alienation.
(vi) Accessible network of family relationship centers that would render relevant support services and family mediation are necessary and vital for the success of shared parenting.
19. In some cases, the concept of shared parenting may not work at all, particularly when one of the parents resides abroad or in a place different from the residence of another parent. It all would all depend on the facts and circumstances of each case, but there is a clear momentum in law towards shared parenting with the child in focus and the rights of the child being the over-riding factors rather than the rights of the separated parents. It would be ideal if the parents jointly submit a plan for shared parenting. In the alternative, the Court must exercise its parens patriae jurisdiction.
20. There may be certain drawbacks in shared parenting also particularly, when one of the parents is a habitual perpetrator of domestic violence, child abuse, child kidnap or child neglect or showing disinterest in the child. The other is when once separated parents re-marry, the second spouse may not be interested in the parenting of the child or maintaining links with the child from the first marriage. Therefore, there would be a dislike towards the child, which may cause emotional problem or harm to the minor child. Very often, differences in the finance and social status of the parents can cause a void, which the child would have to put up with. More importantly, the child would have to be moving between two homes. The ideal situation is, if the child is consistently in one home and the parents move in and out of the home. Nevertheless, it must be understood that children of divorced parents need both parents both emotionally and physically and hence, exclusive custody to one parent with visitation rights to the other cannot be a complete remedy. Thus, what emerges is that the expression 'best interest' and 'welfare of the child' must be imbibed in the context in which the child is positioned between the parents. The facts and circumstances of each case would vary and what is good in one case, may not be good in the other case and vice versa.
21. That while preparing a joint parenting plan, care must be taken so that there is no instability or inconvenience caused to the child. Also the expression "joint" or "shared" would not mean mathematical exactitude or precision, as there must be pragmatism and innovation required at every stage. The personal profile of the parent, their educational qualification, residence, economic and social status, etc., would be important factors while developing the joint parenting plan. As there is no legislation as such in India on shared parenting, the same must evolve with judicial interference, innovation and involvement in assessing the requirements of each child.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M.F.A. Nos. 1536 of 2015 [GW] and 137 of 2015 [GW/WC]
Decided On: 11.09.2020
Savitha Seetharam Vs. Rajiv Vijayasarathy Rathnam
Hon'ble Judges/Coram:
B.V. Nagarathna and Neranahalli Srinivasan Sanjay Gowda, JJ.
Author: B.V. Nagarathna, J.
Citation: MANU/KA/3123/2020,2020/KHC/14304-DB
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