• August 27, 2025

Trophies, Not Children: How Custody Battles Betray Report 257’s Call for Child Welfare

When two parents split, a child should not be treated as a trophy. Yet, in India’s family courts, that is often exactly what happens. Custody is still framed as a “win-lose” contest between parents, while the child’s welfare—supposedly the law’s guiding principle—remains an afterthought. The 257th Report of the Law Commission of India (2015) tried to disrupt this mindset. It proposed shared parenting, quicker hearings, and child-centric reforms. A decade later, little has changed.

A Colonial Law in a Modern Courtroom

The backbone of Indian custody disputes remains the Guardians and Wards Act, 1890. A colonial relic, it reflects the mindset of its time—treating children as dependents whose custody must be “awarded” rather than lives to be nurtured. Despite constitutional protections for children and international obligations under the UN Convention on the Rights of the Child, we continue to shoehorn 21st-century families into a 19th-century framework.

The law, on paper, empowers courts to prioritize the welfare of the child. But in practice, welfare is often conflated with convenience: keep the child with the mother until a certain age; keep the child with the father if financial security is in question. This formulaic approach ignores the individuality of children and the nuances of parental care.

What Report 257 Tried to Fix

The Law Commission’s 257th Report explicitly pushed for:

• Joint custody and shared parenting as the default, not the exception.
• Mandatory mediation before litigation escalates.
• Time-bound resolution of custody disputes (6 months).
• Children’s voices to be heard in proceedings.

The underlying message was clear: move away from adversarial battles, and treat children as human beings with rights, not property to be divided.

But nearly 10 years later, Parliament has not acted. Bills introduced in 2016 to amend the Guardians and Wards Act lapsed. Family courts are still drowning in cases, and children remain collateral damage in drawn-out custody wars.

The Courts Speak—But Do They Deliver?

Judicial pronouncements routinely affirm that child welfare is “paramount.” The Supreme Court in Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 held that custody is not about parental rights but about the child’s best interests. In Roxann Sharma v. Arun Sharma (2015) 8 SCC 318, the Court reiterated that welfare trumps statutory presumptions, granting interim custody to a mother of a toddler.

More recently, in Vivek Singh v. Romani Singh (2017) 3 SCC 231, the Court acknowledged “parental alienation syndrome” and the psychological harm of turning a child against one parent.

Yet, despite such clarity on paper, the reality is far messier. Orders are delayed. Interim custody drags for years, effectively becoming permanent. In one Delhi High Court case (2019), a father’s visitation rights were restricted for so long that the child barely remembered him by the time the matter was decided. Welfare here was not “paramount” but irretrievably lost.

The Numbers Behind the Chaos

• Over 4,000 matrimonial disputes involving children have been pending for more than 3 years in family courts (NCRB 2021).
• NGOs like CRY report that children embroiled in custody disputes show higher rates of anxiety, withdrawal, and academic decline than peers.
• Family law practitioners know that an “average custody battle” in India takes 5–7 years to resolve, well beyond a child’s formative years.

Every statistic here represents not just delay but stolen childhood.

The Systemic Betrayal

Custody disputes in India expose three deep flaws:

1. Adversarial framing – Parents are pitched as litigants, not partners in parenting. The child becomes a prize.
2. Colonial inertia – We are still governed by a 19th-century statute, despite decades of social change.
3. Judicial inconsistency – Though the Supreme Court insists welfare is paramount, trial courts apply it unevenly, often relying on gender stereotypes or financial presumptions.

The result is predictable: one parent often feels completely alienated, while the child loses meaningful contact with both.

A Call Beyond Tokenism

If child welfare is truly paramount, Parliament cannot afford silence. Report 257 gave us a blueprint: shared parenting, quicker hearings, and mediation-first approaches. Courts, too, must move beyond token observations and enforce strict timelines, creative visitation arrangements, and active child participation.

Children are not trophies. They are not leverage in spousal battles. They are rights-bearing individuals, and the law must finally start treating them as such. Until then, every custody battle is not just a family tragedy but a systemic betrayal.

About The Author:

BEDASRUTI DAS
Lecturer of Law & Assistant Dean, Office of Student Affairs and Initiatives (O.S.A.I.), B.A., LL.B., LL.M.

Legally trained professional with over 6 years of combined experience in litigation, legal research, corporate law teaching, and project-based legal operations.