Shared Parenting Petition: Y Sulochana Rani Vs Union of India
Update on 19.08.2022 - The matter is not listed since 20.04.2021
Petitioner: Smt. Y. Sulochana Rani from Andhra Pradesh and presently a NRI based out of London.
Petitioner's Advocate: Advocate Kaleeswaram Raj, NISHE RAJEN SHONKER (AOR)
Opposition Advocate: Solicitor General Tushar Mehta
Intervener Advocate: SUDHIR NAAGAR
Court: SC of India
Category: 1606-Family Law Matters : Minority & guardianship matters
Type: Civil Writ Petition under Article 141 of Indian constitution which states that "The law declared by the Supreme Court shall be binding on all courts within the territory of India". .
Number: Diary No. 24161/2019, Filed on 2019-07-10. Case No. W.P.(C) No. 903 / 2019 Registered on 15-07-2019
Important people (Nothing happens without "approach" in India, even Lord Ram had to wait for reconstruction of his house in Ayodhya for several years until HE found the approach!):
Solicitor General Tushar Mehta (who told the Court that "This matter certainly requires examination,")
SC Bench comprising Chief Justice Ranjan Gogoi, and Justices S.A. Bobde and S. Abdul Nazeer who accepted the petition,
Primary issue:
Sole custody of a child to one of the parent in case of separation of spouses violates the fundamental right of child to receive love and affection of both parents. Thus, the demand for law for "rebuttable legal presumption of equal parenting time".
Note
Points Raised:
The petition seeks court’s declaration that denial of shared custody in matrimonial disputes other than in cases where it is not in the best interest of the child, would amount to violation of Fundamental Rights of the aggrieved parent as also the child under Articles 14, 19 and 21 of the Constitution of India.
Need for shared custody as sole custody affects the child's right to an enhanced quality of life and well being during crucial years of personal development.
Existing statutes, like Hindu Minorities and Guardianship Act, Shariat Act, Guardians and Wards Act, etc, place "very strong presumption in favour of exclusive custody", so reformation in laws is needed.
The sole custody presumption severely affects the fundamental rights of the spouse who has been denied the custody rights and the fundamental rights of the child who will be deprived of care and love of both parents and is antithetical to the very concept of welfare of the child
There should be no gender bias in laws and child custody laws should be made "child centric" in consonance with Article 14 (right to equality) in the Constitution and Article 21 (right to life and liberty) of the Constitution
Excerpts from the petition:
"The legal provisions which currently exist as per various personal laws are in the nature of entrusting the custody of children exclusively to one of the parents in case of separation. The statutes create a strong presumption in favour of exclusive custody. This presumption severely affects the fundamental rights of the spouse who has been denied the custody rights and the fundamental rights of the child who will be deprived of care and love of both parents. This scheme of statutes requires reformation. The petitioner challenges the provisions in the family law statutes, which are violative of various fundamental rights including the right to equality and the right to life of the child”
"A child centric approach based on the idea of shared parenting which unfortunately does not find a place in the family laws of the country. The writ petition prays for appropriate directions having the force of law under Article 141. It tries to point out the various irregularities and inefficiencies in the legal framework of child protection in the country,"
Case history:
| Date | Judges | Petitioner Adv | Respondent Adv | Details |
|---|---|---|---|---|
| 2019-07-22 | JUSTICE A.M. KHANWILKAR JUSTICE DINESH MAHESHWARI | Mr. Kaleeswaram Raj, Adv. Mr. Thulasi K. Raj, Adv. Mr. Romsha Raj, Adv. Mr. Nishe Rajen Shonker, AOR | Counsel for the petitioner submits that Writ Petition (C) Nos.1031/2018 and 873/2019 involving similar issues are pending. Liberty is granted to the petitioner to serve advance copy on the Central Agency. List the matter after two weeks | |
| 2019-09-20 | JUSTICE A.M. KHANWILKAR JUSTICE DINESH MAHESHWARI | Mr. Nishe Rajen Shonker, AOR | As prayed, let this matter be not deleted from the cause list of 25th October, 2019 | |
| 2019-10-25 | JUSTICE S.A. BOBDE JUSTICE S. ABDUL NAZEER | Mr. Kaleeswaram Raj, Adv. Ms. Romsha Raj, Adv. Mr. Nishe Rajen Shonker, AOR | Mr. Tushar Mehta, SG Mr. Vivek Narayan Sharma, Adv. Ms. Vanshaja Shukla, Adv. Mr. G.S. Makker, Adv. | UPON hearing the counsel the Court made the following O R D E R Issue notice. |
| 2019-12-13 | Registrar Sh Rajiv Kalra | Mr. Nishe Rajen Shonker, AOR Mr. Romsha Raj, Adv. Ms. Annu K. Joy, Adv. | Mr. Arvind Kumar Sharma, AOR Mr. Anshuman Srivastava, Adv. Dr. Nitesh Sharma, Adv. Mr. Sudhir Naagar, AOR Mr. Mohit Singh, Adv. Mr. Siddharth Khatana, Adv. | Four weeks’ time is granted to the sole respondent to file Counter Affidavit. Interlocutory Application for intervention be processed for listing before the Hon’ble Judge in Chambers for further orders |
| 2020-02-18 | JUSTICE L. NAGESWARA RAO [In Chamber] | Mr. Kaleeswaran, Adv. Mr. Romsha Raj, Adv. Mrs. Anu K. Joy, Adv. Mr. Alim Anvar, Adv. Mr. Nishe Rajen Shonker, AOR | Mr. Rajeev Ranjan, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Sudhir Naagar, AOR Mr. Vivek Gupta, Adv. | IA No. 173166/2019 - INTERVENTION APPLICATION List after two weeks. |
| 2020-03-06 | JUSTICE M.R. SHAH [In Chamber] | Mr. Romsha Raj,Adv. Mr. Nishe Rajen Shonker, AOR | Mr. Rajan Kr. Chaurasia,Adv. Mr. Arvind Kumar Sharma, AOR Mr. Sudhir Naagar, AOR Mr. Mohit Singh,Adv | Application for intervention to be listed along with main matter |
| 2021-04-20 | Court 2 through VC | Mr. Kaleeswaram Raj, Adv. Mr. Nishe Rajen Shonker, AOR Mr. Varun C. Vijay, Adv. Ms. Aruna A., Adv. Ms. Thulasi K. Raj, Adv. Ms. Maitreyi S. Hegde, Adv. Mr. Nishe Rajen Shonker, AOR | Mr./s. Mansa Singh, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Sudhir Naagar, AOR Mr. Gurmeet Singh Makker, AOR Ms. Pushpa Kishore, Adv. | Upon hearing the learned counsel for the sole Respondent (Union of India), four weeks’ time, as final opportunity is granted to file the counter affidavit. At the end of four weeks, the matter may be processed for listing before the Hon’ble Court, as per rules. |
| 2021-09-03 | ? | ? |
Vivek's take:
It is just the right time to make "rebuttable legal presumption of equal parenting time" as a law in India. The only sad part is the bar of our lawmakers is really low and it will need to be raised and time will only tell, how soon the success reaches my door!
There's urgent need to publish the country-wide data regarding outcome of custody cases and in how many cases, fathers are given sole custody. According to one research, fathers are getting custody only in 2% of cases and consecutive Indian govts. have failed to protect the rights and interests of 50% of its population.
There's need to educate judicial academies, judges, advocates on need for shared parenting and media/ngo/child commission need to step up and produce research
Many feminazis make hue and cry about lack of their rights and want more and more biased laws in favor of women. I believe that law must always be neutral in all forms. Everyone must be equal before law irrespective of their GENDER, language, color, caste, race, nationality, education, networth etc. Also, due to continuous propaganda and con-business full of lies and trickery by anti-India forces, several biased laws have been created. No one looks at
Other data
List of countries with "Shared parenting law" can be seen at this link:
Other similar petitions:
1. Writ Petition(s)(Civil) No(s). 873/2019 filed by Kumar Ratan/Roopenshu etc. intervened by Arijit etc. SAVE CHILD INDIA FOUNDATION vs UNION OF INDIA & ORS.
One date in 2019 for issue notice, next date in 2024.
Not covered much by any media, so not aware of any prayers etc. Copied following text from https://lawsisto.com/legalnewsread/MjY4Nw==/Shared-Parenting-PIL:
"The Centre was asked to respond to the public seeking the reforms on shared parenting after the case of divorce or separated parents by the Supreme Court.
The bench comprising of Justice S A Bobde and B R Gavai said “ issue notice” to the Centre for the joint parenting of the child even after the separation, divorce, marital disputes or unmarried parents so that the child can maintain a healthy relationship with both his or her parents.
The bench said “it is a very noble cause but what can the court do in this case” adding that it was the responsibility of the Parliament to work on it.
Due to increase in the rate of divorce and separation the children’s rights should be secured, as the child is the most affected by this and there is a possibility that the neglecting of the needs of the child, said the advocate Rajiv Mangla who filed the plea.
The plea said “The emotional, social and physical development of children has a direct effect
Various researches and the Indian Courts agree on that the end of marriage is not the end of the responsibility of being parents added the plea.
The existing Acts including the Hindu minority and Guardianship act, the Guardians and Wards act and Juvenile Justice Act are more about who will get custody of the child rather than focusing on the needs of a child while growing up.
The plea sought direction from the courts, CWCs, National and State Commission of Protection of Child Rights to get the child rights for shared parenting within the time period from the date when the issue is raised with the authorities.
CWC are “not recognising the rights of children in perspective of alienated children. the courts overburdened with the custody cases and the family issues whereas CWC is keeping a close eye towards the issue, which in fact lies under the Juvenile Justice Act.”
It was further sought the women’s cell, police stations and NGO to guide the parents to approach family court or CWCs within 7 days to submit the proof to the referring authority stating the child is not able to maintain a healthy relation or direct contact with anyone of the parents
A shared parenting agreement was to be enforced by the guidelines issued by CWCs within a period of 90 days from the date of Inception of the cause before the authority.
"
2.
DIARY NO. - 28334/2018
CHILD RIGHTS FOUNDATION (CRF) VS. UNION OF INDIA
W.P.(C) No. 001031 - / 2018
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