The Supreme Court on Friday agreed to examine the plea which raises questions about the laws on custody and guardianship of children in the country in the absence of shared parentage, and entrusting the custody of the child exclusively to one parent in case of separation of spouses.
After Solicitor General Tushar Mehta told the Court that the matter needs to be examined, a Bench comprising Chief Justice Ranjan Gogoi, and Justices SA Bobde and S Abdul Nazeer issued notice to the Centre seeking its response.
The court was hearing a plea filed by Y Sulochana Rani, who hails from Andhra Pradesh, and is currently employed in London. The plea was filed by Advocate Kaleeswaram Raj.
Mr Raj said that "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.
"As this presumption severely affects the fundamental rights of the spouse who has been denied custody rights and the fundamental rights of the child who will be deprived of care and love of both parents, counsel told the top court that 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," the plea said.
"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," it said.
It added that Sections 6 (a) and 7 of the Hindu Minorities and Guardianship Act, 1956 are unconstitutional since they give primacy to the man, and only give secondary status to the woman and are liable to be struck down.