Marriage Laws Amendment Bill-2010 is constitutionally valid and it is in the true spirit of Constitution of India and satisfies the ground of reasonableness.
In introduction to 59th Law Commission of India Report, former Chief Justice of India Mr. P. B. Gajendragadkar observed:
"It may sound platitudinous but is nevertheless true that revision of law is must" in a dynamic society like ours, which is engaged on the adventure of creating a new social order founded on faith in the value system of socio - economic justice enshrined in our Constitution. With the changing times, notions of fairness and justice assume newer and wider dimensions and customs and beliefs of the people change. These in turn demand changes in the structure of law; every progressive must make a rational effort to meet these demands. Between the letter of the law and the prevailing customs and the dictates of the current value system accepted by the community, there should not be an unduly long gap.
Child Custody & Guardianship:
Child custody and guardianship are legal terms which are sometimes used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child. The religion-based distinction of the personal laws is an evident and accepted fact. These laws are zealously guarded, fiercely protected and justified by the various religious communities. Before the advent of the British rule, the major laws of inheritance in India had either their roots in the respective religion or were deeply influenced by the personal laws, owing their allegiance to religion.
Mothers and fathers both have a prominent role to play in supporting the growth and development of their children. The basic opinion of the child and the mother is highly ignored while determining the custody of the child. Because a father earns more than a mother, it does not entitle him to get the custody of the child in the event of a divorce. This situation is changing in recent times. Child custody is being awarded to the parent keeping in view the best interests of the child.
Keeping in account the need for brevity of the draft, I would like to diversify my draft into three main chapters.
Chapter -1 ( Child custody and Guardianship in Hindu law)
Chapter -2 (child custody and Guardianship in Muslim Law)
Chapter -3 (child custody and guardianship in The West)
CH-1 (Child custody and Guardianship in Hindu law)
The Hindu law of guardianship has been codified and reformed by the Hindu Minority and guardianship Act,1956. With the help of the provisions of the act,it will be convenient to discuss the subject matter under suitable sub-headings.
1. Guardianship of person of minors
2. Guardianship of the property of minors.
3. De-facto guardians
4. Guardians by affinity
Custody under Hindu, Muslim, Christian and Parsi Law:
In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated.
Child Custody & Guardianship: Indian Scenario Compared to the West:
Child custody and guardianship are legal terms which are sometimes used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child
Guardianship Under Hindu, Muslim, Christian And Parsi Laws:
Under the Hindu Minority and Guardianship Act, 1956, S. 4(b), minor means a person who has not completed the age of eighteen years. A minor is considered to be a person who is physically and intellectually imperfect and immature and hence needs someone's protection.
Hindu Minority and Guardianship Act,1956 | Child Custody Judgments | Guardianship Judgments
Status of Children born in Live in Relationships:
clear laws should be made and amendments to ambiguous terms in present laws must be made to grant clarity on the status and rights of children born in a live in relationship. This will ensure uniformity and help establish emotional, mental and physical security for such a child.
Adoption - Under Hindu, Muslim, Christian And Parsi Laws:
Hindu Law, Muslim Law and the Guardians and Wards Act, 1890 are three distinct legal systems which are prevalent. A guardian may be a natural guardian, testamentary guardian or a guardian appointed by the court. In deciding the question of guardianship, two distinct things have to be taken into account - person of the minor and his property. Often the same person is not entrusted with both.
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