• August 28, 2025

Law Commission of India’s 257th Report on Child Custody: A Legal and Social Analysis

Introduction

The 257th Report of the Law Commission of India, titled “Reforms in Guardianship and Custody Laws in India”,¹ was submitted in May 2015 against the backdrop of rising concerns about the inadequacy of existing personal laws concerning child custody and guardianship in divorce or separation cases. It follows earlier Reports of the Law Commission on various aspects of guardianship and custody. The Law Commission was thus tasked to modernise the law, prompted in part by a Delhi High Court judgement and subsequent reference by the Ministry of Law and Justice. Public discourse and civil society activism further fuelled the call for reform, especially among non-custodial parents, mostly fathers, advocating for equal parental rights. In Part-I of this work, I therefore lay out the context of the reforms, and a series of case laws from which the Report draws inspiration. In Part-II I delineate the statement of problem as stated by the Law Commission. In family law there are three core concepts namely that of (i) guardianship, (ii) custody and (iii) welfare or best interest of the child. Guardianship under s. 4(b) of Hindu Minority & Guardianship Act 1956 (HMGA) means “ a person having the care of the person of a minor or of both his person and property and includes (i) a natural guardian, (ii) a guardian appointed by the will of the minor’s parents, (iii) a guardian appointed or declared by a court a guardian appointed by the law to whom the child is subject. Custody does not have a single definition but can be generally understood to “ a narrower concept relating to the upbringing and day‑to‑day care and control of the minor.” The welfare principle also called the best interest and welfare of the child’ which attempts to enable each child to survive and reach his or her full potential. Traditionally, Indian courts decided custody matters based on statutes such as the Hindu Minority and Guardianship Act, 1956 (HMGA) and Guardians and Wards Act, 1890 (GWA), with a preference for one parent, often the mother, in custodial arrangements. These legislation often originate in tradition or religious doctrines and have differential provisions for custody. The Report essentially harmonise this difference by suggesting a number of legislative changes. It recommends moving towards a regime for joint custody , shared parenting, reconciliation in matrimonial proceedings through mediation and deep embedding of the “ best interest of the child principle”.

In Part-III I discuss about the critique to the Law Commission’s proposal and the state of their enforcement.

I conclude that the Law Commission’s Report can be seen as part of wider effort to develop a common civil code and ongoing effort at secularisation of family law.

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1 See LAW COMMISSION OF INDIA Report No.257 Reforms in Guardianship and Custody Laws in India , 1 (May 2015) (Aug.13, 2025, 10 AM), www.highcourtchd.gov.in/sub_pages/left_menu/publish/year_books/Report%20No.257%20Custody%20Laws.pdf
3Principle 4, Rule 3, Juvenile Justice (Care and Protection of Children) Rules, 2007

Part-I

Background

The law Commission has considered various aspects of Guardianship and Custody in its earlier reports namely. (i) 83rd report (1980) of the Law Commission³, entitled ‘The Guardians and Wards Act, 1890 and certain provisions of the Hindu Minority and Guardianship Act, 1956,’ (ii) as well as the 133rd report (1989) of the Law Commission⁴, entitled ‘Removal Of Discrimination Against Women In Matters Relating To Guardianship And Custody Of Minor Children And Elaboration Of The Welfare Principles”, (iii) Law Commission of (hereinafter, the Commission) issued a Consultation Paper on Adopting a Shared Parenting System in India (hereinafter, the Consultation Paper)⁵.Together Reports laid the foundation for modern custody reform by urging alignment of guardianship laws with the child’s welfare principle and eliminating gender-based discrimination. There has been a continuous stream of decisions from the Higher judiciary calling for modernisation of family laws, and mindfulness to the “best interest of the child” over parent’s rights. Some of the key’ cases in this regard are the following Vivek Singh v. Romani Singh (2010)⁶ (Emphasized joint parenting and child-centric custody model); Shaleen Kabra v. Shiwani Kabra (2012) ⁷(Advocated for shared visitation and psychological well-being of the child); Gaurav Nagpal v. Sumedha Nagpal (2009)⁸ (Landmark case asserting that the best interests of the child are paramount); Ruchi Majoo v. Sanjeev Majoo (2011)⁹ (Jurisdiction & habitual residence considered crucial in custody matters); Athar Hussain v. Syed Siraj Ahmed (2010)¹⁰ (Preference of the child considered significant); Sheoli Hati v. Somnath Das (2019)¹¹(Emphasised progressive custody and minimising child’s trauma); Roxann Sharma v. Arun Sharma (2015) ¹²(Clarified guardianship under secular laws regardless of religion.) Besides these the “best interest of child standard” is also embedded in international human rights documents like the United Nations Convention on the Rights of the Child (hereinafter, CRC. These case laws as well as the other Reports set the stage for the 257^th Report

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3 Law Commission of India, 83rd Report, April (1980) , (Aug.13, 2025, 10 AM), http://lawcommissionofindia.nic.in/51-100/Report83.pdf
4 Law Commission of India, 133rd Report, August (1989), (Aug.13, 2025, 10 AM), http://lawcommissionofindia.nic.in/101-169/Report133.pdf
5 http://lawcommissionofindia.nic.in/Consultation%20Paper%20on%20Shared%20Parentage.pdf
6 (2011) ILR 2 Delhi 695
7 194 (2012) DLT 79
8 (2009) 1 SCC 42
9 (2011) 6 SCC 479;
10 (2010) 2 SCC 654
11 (2019) 7 SCC 490
12 (2015) 8 SCC 318

Part-II

The Problem & The Solution

The point of difference between the GWA and the HMGA lies in the emphasis placed on the welfare principle. Under the GWA, parental authority supersedes the welfare principle, while under the HMGA, the welfare principle is of paramount consideration in determining guardianship. Thus, for deciding questions of guardianship for Hindu children, their welfare is of paramount interest, which will override parental authority. But for non-Hindu children, the court’s authority to intervene in furtherance of the welfare principle is subordinated to that of the father, as the natural guardian. The judicial interpretations of this Act show two differing trends namely an inbuilt preference for the father in guardianship but not in custody and indeterminacy of the welfare of the child principle. Thus, the effort of the Commission was to harmonize and modernize child custody, but above all deep embedding the “best interest of the child principle”. One of the problems identified by the Commission was the indeterminacy of the “welfare principle”, for example whether financial capacity of the parent or emotional well being of the child should be the guiding factor.¹³

The Report thereafter made the following recommendations namely

1. Suggested a complete overhaul of the GWA, 1890 by introducing the Draft Protection of Children (Inter-Country Removal and Retention) Bill.
2. Proposed inserting provisions into the HMGA and GWA for shared parenting plans, mediation, and fast-track procedures.
3. Parenting Plan Format: The report introduces a structured format for “Parenting Plans”, outlining visitation rights, holiday schedules, schooling, healthcare, and decision-making responsibilities to be agreed upon by both parents, preferably through mediation.
4. Gender-Neutral Provisions: Breaking away from the traditional maternal preference, the report calls for neutral evaluation of both parents’ fitness and availability.
5. Mediation and Conciliation: Advocates for compulsory pre-trial mediation in custody disputes, with family counsellors assisting courts.
6. The Commission also suggested a framework for deciding what constitutes the “best interest of the child” , the factors to be considered are the physical and mental condition of the child; the physical and mental condition of each parent; the child’s relationship with each parent; the needs of child regarding other important people (siblings, extended family members, peers, etc.); the role each parent has played and will play in the child’s care; each parent’s ability to support the child’s contact and relationship with the other parent; each parent’s ability to resolve disputes regarding the child; the child’s preference; any history of abuse; and the health, safety, and welfare of the child.

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13 257TH LAW Commission report 24-25

Part-IIII

Critique of the Report & present State of Affairs

While the report is commendable for its child-centric, modern, and balanced outlook, it is not without criticism. The following criticisms are made frequently namely

1. Implementation Ambiguity: Although it proposes joint custody, the report offers limited guidance on practical implementation. Factors like logistical complexity, parental conflict, and lack of awareness may hinder its effectiveness.¹⁴
2. Enforcement Mechanism: The report is silent on how courts would enforce detailed parenting plans in cases of breach or non-compliance, especially when one parent relocates or becomes uncooperative.¹⁵
3. Cultural Sensitivity: India’s diverse social fabric includes communities with distinct cultural and religious norms. A one-size-fits-all parenting model may not be feasible without accounting for socio-religious contexts.¹⁶
4. Overemphasis on Courts: The report places significant responsibility on courts to determine complex familial issues. It could have laid out clearer institutional support frameworks involving trained psychologists, social workers, and counsellor.¹⁷.
5. Limited Consultation with Children: Though the child’s best interests are central, mechanisms for directly involving children in the decision-making process (age-appropriate interviews or statements) are not robustly detailed¹⁸.

Despite its transformative vision, the 257th Report has not yet been fully implemented. Its recommendations remain largely in the realm of academic, legal, and judicial discourse rather than active law.Neither the Indian Parliament nor state legislatures have enacted the draft Shared Parenting Bill or amendments proposed in the report. The GWA, 1890 and HMGA, 1956 remain in force without incorporation of joint custody provisions.

Judicial Incorporation: Some High Courts, notably Delhi and Bombay, have informally adopted the spirit of the report. Judges increasingly order shared custody or liberal visitation based on the parenting plan model introduced by the Law Commission. However, this depends heavily on judicial discretion and varies case to case. Some important case laws are as follows: –

1. Kunal Dutt v. Surbhi Dutt FAO 369/2017, Decided on 4 Dec 2017 (Granted liberal visitation, alternate weekend access, and vacation contact, aligning with structured parenting plan logic.
2. Bhuwan Mohan Bhandari v. Meena Bhandar Mat. App. (FC) 47/2018, Decided on 5 Mar 2019 (Ordered implementation of a court-supervised parenting plan, acknowledging emotional rights of the child)
3. Jasmeet Kaur v. Navtej Singh Family Court Appeal No. 42/2018, Decided on 20 Aug 2018 (Ordered week-on/week-off shared custody and promoted flexibility to accommodate schooling and travel.)
4. Aditi Gopalakrishnan v. Gopalakrishnan M.V. 2017 SCC OnLine Bom 9400 [Court-approved structured visitation while ensuring child’s psychological comfort].
5. Ramesh v. Vandana Family Court Appeal No. 90/2021, Decided on 24 Sept 2021 [Upheld mid-week and weekend visitation, emphasizing the child’s access to both parents.]

The Ministry of Women and Child Development has acknowledged the need for joint custody laws, but no concrete policy or bill has emerged from the central government. Various NGOs and advocacy groups continue to push for implementation.

The report briefly discussed international child abduction and recommended India sign the Hague Convention on Civil Aspects of International Child Abduction (1980). As of 2025, India has not ratified this convention.

Family courts have not been uniformly trained or equipped with tools for mediation or drafting parenting plans. The infrastructure to handle such sensitive and multi-disciplinary matters remains underdeveloped.

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14 See for example S Kumar, “Child Custody Battles: Balancing Parental Rights and Child Welfare”, The Infinite (2025) [ This paper discusses the lack of operational clarity in the 257th Report, noting that while joint parenting is idealized, the report provides insufficient details on timelines, transition mechanisms, or coordination during high-conflict separations.]
15 Ira Chadha-Sridhar & Aratrika Choudhuri, “Of Men’s Rights, Motherhood and Minors: Critical Feminist Reflections on Shared Parenting Laws in India”, NUJS Law Review, Vol. 9 (2016) [The authors critique the assumption that courts are equipped to handle parenting plan enforcement, pointing out the absence of concrete legal recourse in cases of relocation, alienation, or breaches.]
16 S Harris-Short, “International Human Rights Law and the UNCRC: Cultural Relativism and the Rights of the Child”, Human Rights Quarterly [ While global in context, the paper’s critique is applicable to India — showing that without accommodating pluralistic family structures and norms, shared parenting laws risk cultural erasure or inefficacy.]
17 Rohan Abeytrane & Deepika Jain “Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach to Gender Equality.” American University Journal of Gender Social Policy and Law 21, no. 2 , 333 (2012 0 [ Discusses systemic failures where courts are overburdened and lack institutional ecosystem — like social workers, counselors, or child psychologists — to support nuanced custody decisions.]
18 Clare Huntington, “The Institutions of Family Law”, Boston University Law Review (2022) [Argues that child-centric policies often pay lip service to “best interests” without structurally enabling children’s voices — e.g., through trained interviewers, guardians ad litem, or age-appropriate procedures.]

Conclusion

The updating of custody and guardianship under Indian law can be seen as part of two larger processes that is shaping India. First the pressures of modern life and the increasing number of marriages that end in discord and acrimony. There is deep literature to suggest that such discord has extreme negative impact on children. the 257^th Report can be seen as an effort at reducing this discord. To that extent it is a welfare legislation. The second process is the increasing secularisation of Indian law, with UCC being the final goal of that process. A more nuanced law on custody and guardianship can replace a series of archaic religion-based codes. To that extent it is a socio-political project. The state has been cautious to move along this path, but the courts have already started to adopt the template.

Despite its strong recommendations, lack of legislative momentum and institutional readiness have hindered its implementation. For real change to occur, legislative bodies must act decisively, judiciary must continue its progressive stance, and support mechanisms such as trained counsellors and mediation cells must be strengthened. Only then can the child’s welfare—the cornerstone of the report—be truly safeguarded in custody battles

About The Author

Prof. Suvrajyoti Gupta
Assistant Professor at Jindal Global Law School,
B.A. LL.B. (WBNUJS, Kolkata), LL.M. (National University of Singapore)