Parenting Plans, Practical Arrangements, and the Gap Left by an Unenacted Reform
I. Introduction
There is no general statutory right to equal s
hared custody in India. Courts decide custody and parenting arrangements primarily on the welfare of the child, and depending on the facts, they can and do order structured contact or shared arrangements between both parents. That single sentence is the practical answer most people are looking for — the rest of this article explains where that answer comes from, since it isn’t written down anywhere in the statute book itself.
When a marriage breaks down in India, the sharpest battle is usually over the children. Courts are asked to make consequential decisions about custody, yet they work without a basic vocabulary: Indian law does not provide a comprehensive statutory framework defining or regulating shared physical custody and shared parenting. The governing statutes do declare a principle — the welfare of the child is paramount — but they stop short of laying down any real framework for putting that welfare into practice, whether through sole custody with visitation or an arrangement where both parents stay meaningfully involved in the child’s life.
Into that gap, courts have stepped. Over the last decade and a half, Indian judgments have built up a body of case law recognising meaningful parental involvement and structured parenting arrangements, without ever being handed a statute that names shared parenting as such. The result is a widening gap between how judges actually decide these cases and what the written law provides for.
Before going further, it helps to keep four terms apart, since Indian courts and commentators often use them loosely. Guardianship is the legal authority and responsibility a person holds over a child — decision-making power, in effect. Custody refers to physical care: who the child actually lives with day to day. Visitation, or contact, is the access a non-custodial parent retains to stay in the child’s life. Shared parenting is broader than all three — it can mean a mix of joint decision-making, a genuine time-split, or both. The statutes mostly talk about guardianship and custody; shared parenting, as courts have built it, borrows pieces of all four ideas without any single provision tying them together.
Concept Meaning
Guardianship Legal authority/responsibility concerning the child
Custody Physical care and day-to-day residence
Visitation / contact Time and contact retained by the non-custodial parent
Shared parenting A broader arrangement involving meaningful participation of both parents — potentially combining time-sharing and joint decision-making
II. The Statutory Framework
Custody disputes in India sit at the intersection of two statutes, and reading them together shows exactly where the gap lies. Section 6 of the Hindu Minority and Guardianship Act, 1956 names the father as the natural guardian of a Hindu minor son or unmarried daughter, with the mother recognised only “after him” — subject to a proviso that a child under five is ordinarily to remain in the mother’s custody. Section 13 qualifies this scheme directly: the welfare of the minor is the paramount consideration, and no person — including a father with statutory priority under Section 6 — is entitled to guardianship if the court finds it would not serve that welfare.
The Guardians and Wards Act, 1890 works alongside this framework for all communities. Section 7 gives the court the power to appoint a guardian when satisfied it is necessary for the child’s welfare, and Section 17 directs the court to weigh the minor’s age, sex, religion, and the character and capacity of the proposed guardian, consistently with the personal law to which the minor is subject. Section 15, titled “Appointment or declaration of several guardians,” allows the court to appoint more than one guardian where the minor’s personal law permits it — so the Act is not entirely silent on the idea of more than one person holding responsibility for a child. But Section 15 is a general provision about multiple guardians, not a modern shared-parenting mechanism: it says nothing about time-sharing, decision-making splits, or any of the practical machinery a parenting plan would need.
Neither Act defines “joint custody” or “shared parenting,” and neither builds out what shared responsibility for a child would actually look like on the ground. That gap — not an absence of any relevant provision, but an absence of a working framework — is what courts have had to fill.
III. The Welfare Doctrine: From Rosy Jacob to Vivek Singh
Because the written law gives no real framework for shared parenting, courts have relied on a different, older principle to decide these disputes: the welfare doctrine, under which a child’s safety, development, and emotional wellbeing outweigh either parent’s legal claim. This isn’t the same as saying courts have created a general right to shared custody — the welfare test is what actually decides each case, and shared parenting is only one possible outcome of applying it.
The doctrine’s foundations were laid in Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, where the Supreme Court held that children “are not mere chattels” to be awarded to a parent as of right, and that the welfare of the child — not the technical entitlement of either parent — must control the outcome. Decades later, in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, the Court extended this reasoning, holding that a parent’s rights under personal or statutory law must yield entirely to the child’s welfare, and that the court’s authority in custody matters rests on its own inherent parens patriae jurisdiction, independent of any particular statute.
Vivek Singh v. Romani Singh, (2017) 3 SCC 231, shows the doctrine applied to a genuinely difficult case: a young girl who had lived almost entirely with her father after a bitter separation, whose own expressed wish — recorded through a court counsellor’s assessment — was to remain with him. Rather than simply awarding custody to one parent, the Supreme Court left in place a detailed, structured schedule granting the mother defined weekends, vacation periods, and time on the child’s birthday. The outcome fell short of joint custody in name, but it functioned as a negotiated sharing of the child’s time — shaped by her established routine and her own voice — and pointed toward the kind of structured arrangement that a genuine shared-parenting order would later require.
IV. Yashita Sahu and the Shared Parenting Question
An important Indian case on this subject is Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, Criminal Appeal No. 127 of 2020, decided 20 January 2020. It’s worth flagging upfront: this case is often cited as if the Indian Supreme Court itself created a shared-parenting rule, but that isn’t quite what happened. The actual joint-custody schedule at the heart of the case was drawn up by a court in Virginia, USA — the Indian Supreme Court’s role was to decide whether that foreign arrangement deserved recognition and enforcement in India, not to invent a shared-parenting framework of its own.
The facts capture a genuinely cross-border custody dispute: a couple married in India relocated to the United States, where their daughter was born an American citizen. When the marriage broke down, the Virginia court issued a consent order granting the parents joint legal custody and shared physical custody, with a detailed time-sharing schedule. The mother subsequently brought the child to India in violation of that order, and the father sought her return through a habeas corpus petition before the Rajasthan High Court, and then the Supreme Court.
The Court, per Deepak Gupta J. (Bose J. concurring), addressed the tension between comity of courts — the principle that Indian courts should ordinarily respect the orders of a foreign court with the closest connection to the child — and the child’s welfare as the paramount consideration. The Court held, at paragraph 17, that “if welfare of the child so demands then technical objections cannot come in the way,” making clear that comity yields where welfare requires it.
The judgment’s most significant contribution to shared-parenting doctrine comes at paragraph 19, where the Court held that a child, “especially a child of tender years[,] requires the love, affection, company, protection of both parents,” describing this as the child’s basic human right. This is a strong statement about the value of a relationship with both parents — it does not convert into a rule that every child is entitled to equal or shared physical custody as a matter of course. Welfare remains the test the Court actually applies, and Yashita Sahu itself stops short of saying otherwise. At paragraph 22, the Court went further, distinguishing “contact rights” from visitation rights and identifying video calling as the preferred mode of maintaining contact in the modern era — a detail with direct relevance for cross-border and long-distance parenting arrangements.
What the Supreme Court actually contributed, then, was not the mechanics of a shared-parenting plan — that came from Virginia — but a principle: that such an arrangement, even one authored by a foreign court, can serve a child’s welfare and basic rights, and deserves respect and enforcement by Indian courts. That’s a narrower and more accurate holding than “the Supreme Court endorsed shared parenting,” though the practical effect for this family was much the same.
V. The Unenacted Reform
This gap between judicial practice and the written law was formally documented well before Yashita Sahu was decided. The Law Commission of India, in its 257th Report (May 2015), titled “Reforms in Guardianship and Custody Laws in India,” recommended inserting a new Chapter IIA into the Guardians and Wards Act, 1890 — one that would define joint custody and provide a statutory framework for shared parenting plans, giving courts clear guidance rather than requiring them to construct one case by case.
More than a decade later, Parliament has not acted on that recommendation. Family courts are still the ones building these arrangements case by case, working within a statutory structure that was never actually designed to accommodate shared parenting.
VI. Building a Practical Parenting Plan
In the absence of statutory guidance, the terms that courts and lawyers construct do most of the practical work. A well-drafted parenting plan typically addresses four elements. First, a defined time-sharing schedule — specific days, holidays, and vacation periods, rather than vague “reasonable access” language. Second, it splits decision-making responsibility — spelling out who decides on schooling, healthcare, and religious upbringing, whether the parents handle these jointly or split them by area. Third, a communication protocol for the child to reach the non-custodial parent — the kind of provision Yashita Sahu addressed directly at paragraph 22, where the Court identified video calling as the preferred modern mode of contact. Fourth, a dispute-resolution mechanism, such as mediation, to resolve disagreements without repeated litigation.
VII. Where Shared Parenting Runs Into Trouble
None of this means shared parenting is the right answer in every case. Two parents who cannot be in the same room without conflict may find a rigid time-split harder on a child than one clear home base. Cases involving domestic violence raise an obvious problem too — asking a survivor to coordinate parenting logistics with an abuser isn’t neutral, whatever the schedule looks like on paper. Distance complicates it further: a joint decision-making clause means little if the parents live in different cities and can’t agree on which school the child should attend. These aren’t reasons to abandon shared parenting as an idea — they’re reasons the law needs an actual framework, rather than leaving judges to work each of these questions out fresh in every case that comes before them.
VIII. Conclusion
Indian courts have moved, case by case, from treating custody as a contest between competing parental rights toward recognising that a child’s welfare is often best served by structured, ongoing contact with both parents. Rosy Jacob and Gaurav Nagpal supplied the doctrinal foundation; Vivek Singh showed it operating through detailed visitation architecture; and Yashita Sahu brought the Court into direct engagement with a genuine shared-parenting order — one whose specific terms were authored abroad, but whose underlying principle the Court fully endorsed. What the Law Commission proposed in 2015 remains undone: a statutory framework that would let courts build shared-parenting arrangements on a defined legal footing, rather than reconstructing one in each new dispute. Until Parliament acts, the quality of a parenting plan’s drafting will continue to matter as much as the doctrine behind it.
Frequently Asked Questions
1. What is shared parenting in India?
Shared parenting refers to an arrangement where both parents remain meaningfully involved in a child’s life after separation or divorce — through some combination of shared physical time, shared decision-making, or both. It isn’t a term defined in any Indian statute; it’s a practical outcome courts have arrived at while applying the welfare principle.
2. Is shared custody legally guaranteed in India?
No. There is no statutory right to equal shared custody in India. Courts decide custody based on the welfare of the child in each case, and may order shared or structured arrangements where the facts support it — but this is a case-by-case judicial outcome, not a guaranteed entitlement.
3. What is the difference between custody and guardianship?
Guardianship is the legal authority and responsibility for a child’s affairs — essentially decision-making power. Custody is about physical care: who the child actually lives with. A person can be a guardian without having custody, and the two are governed by overlapping but distinct provisions in the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890.
4. Can courts order both parents to spend time with a child?
Yes. Courts can and do structure detailed visitation or contact schedules, as seen in Vivek Singh v. Romani Singh, and can recognise shared physical custody arrangements, as in Yashita Sahu v. State of Rajasthan. Whether this happens depends on the welfare of the child on the facts of each case.
5. What did the Supreme Court say in Yashita Sahu v. State of Rajasthan?
The Court held that where the welfare of the child requires it, technical objections cannot stand in the way (para 17), that a child requires the love, company, and protection of both parents as a basic human right (para 19), and that modern contact methods like video calling should be used to maintain a child’s relationship with a parent they don’t live with (para 22). The specific joint-custody schedule in that case, however, originated in a US court order, not the Supreme Court’s own design.
6. Does Indian law provide a statutory framework for parenting plans?
Not currently. The Law Commission of India’s 257th Report (2015) recommended inserting a new Chapter IIA into the Guardians and Wards Act, 1890 to define joint custody and provide a framework for shared parenting plans. Parliament has not acted on this recommendation, so parenting plans in India are built individually by courts and lawyers rather than following a set statutory template.
References
1. Hindu Minority and Guardianship Act, 1956, §§ 6, 13.
2. Guardians and Wards Act, 1890, §§ 7, 15, 17.
3. Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840. https://indiankanoon.org/doc/270778/
4. Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
5. Vivek Singh v. Romani Singh, (2017) 3 SCC 231. https://indiankanoon.org/doc/48721287/
6. Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, Criminal Appeal No. 127 of 2020, paras 17, 19, 22. https://indiankanoon.org/doc/144083733/
7. Law Commission of India, Report No. 257, “Reforms in Guardianship and Custody Laws in India” (May 2015).
Author: Anushka Gupta
Anushka Gupta is a second-year law student at Law Centre-I, University of Delhi, who came to law after a philosophy degree from BHU. She's interned across litigation, corporate law, and NGO-based legal aid, and her research on juvenile justice was published in the Majesty International Legal Review. She writes on procedural and constitutional law questions.