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1st September 2023 (7 Topics)

A progressive UCC must protect the child’s best interests

Context:

There is a need for an all-encompassing Uniform Civil Code (UCC) in India, moving beyond common issues like polygamy and divorce, for the inclusion of the "best interests of the child" principle in custody disputes and protection from custody cases involving biological parents after adoption and "accused of rape" biological fathers seeking custody.

Custody Principles and Cultural Context

  • Present legislations: Different custody principles in various legal systems, such as the Guardians and Wards Act, Hindu Minority and Guardianship Act, and Islamic law.
  • Preference to Child Rights: Islamic law's unique perspective on custody, favoring the child's rights rather than parental claims.
  • Custody rules: Varied custody rules under different schools of Islamic thought, considering gender, age, and marital status.

Complex Custody Scenarios and Judicial Approach

  • Biological vs. Adoptive Parents: Illustration of complex cases involving custody disputes between biological and adoptive parents.
  • Diverse Scenarios: Highlighting instances where Indian courts prioritize biological parents' claims over adoptive parents', sometimes neglecting the child's best interests.
  • Neglecting Child's Best Interests: Specific case examples, such as the Bombay High Court granting custody to an "accused of rape" biological father, raising concerns about precedent and the victim's rights.

Towards a Progressive UCC

  • Holistic Approach to Custody: Emphasis on the need for a progressive Uniform Civil Code beyond biological ties, focusing on adoptive parents' rights and diverse family structures.
  • Moving Beyond Matrimonial Bonds: Suggestion to refrain from enforcing strict matrimonial bonds and to consider provisions for single, surrogate, and queer parents.
  • Fostering Adoption and Child Welfare: The call for a balanced approach that safeguards the interests of all parties involved, while also promoting adoption and children's welfare.
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