Author name: Sangeeta Pachauri

JOINT PARENTING Divorce may end a marriage, but it does not end parenthood. For a child, the separation of parents can create a difficult emotional reality: two people who were once a family may now live separately, yet the child continues to need the love, care, guidance and emotional security of both. This is where the idea of joint parenting or shared parenting becomes significant. Indian courts have increasingly emphasised that a custody dispute is not a contest between two parents to establish who has greater legal rights. At its heart is one question: what arrangement serves the welfare and best interests of the child? Recent judicial developments have once again brought this principle into focus. The Child Is Not a Prize to Be Won In custody litigation, parents often become so involved in their disagreements that the child risks becoming the centre of the dispute rather than the centre of judicial protection. The Supreme Court has repeatedly treated the welfare of the child as the paramount consideration in custody matters. In a February 2026 decision, the Court reiterated that welfare remains central, while also recognising factors such as the child’s education, comfort, living circumstances and the financial capacity of the parents as relevant considerations. (Indian Kanoon) This approach changes the perspective completely. The question is not simply: “Which parent should get custody?” It is: “What arrangement will allow this child to grow with maximum emotional security, stability, care and meaningful relationships with both parents?” What Does Joint Parenting Really Mean? Joint parenting does not necessarily mean that a child must spend exactly 50% of the time with each parent. It may involve one parent having primary physical custody while the other has meaningful and regular visitation, participation in education and healthcare decisions, holidays, celebrations and other important aspects of the child’s life. The objective should be continued parenting, rather than mathematical equality. This distinction has become particularly important following a recent Bombay High Court judgment. In SRB v. DA, decided on September 1, 2026, the Bombay High Court set aside a Family Court arrangement that had imposed a 50:50 “joint parenting” plan. The Court observed that Indian custody laws do not recognise “joint parenting” as a statutory concept and that parental rights cannot override the welfare of the child. (Live Law) The judgment therefore provides an important caution: equal time is not automatically equal welfare. A rigid 50:50 arrangement may work for some families, but it cannot be imposed mechanically upon every family. The Right of the Child to Both Parents At the same time, rejecting compulsory 50:50 custody does not mean that the non-custodial parent should disappear from the child’s life. In the same Bombay High Court decision, the Court observed that the custodial parent has a responsibility to make genuine efforts to facilitate the child’s relationship with the other parent. It also recognised that the child has a right to the company of that parent. (Live Law) This is a crucial distinction. Custody is not ownership. A parent having physical custody does not acquire a monopoly over the child’s affection, upbringing or relationship with the other parent. Likewise, a parent who does not have primary physical custody does not cease to be a parent. Moving Beyond the “Mother Versus Father” Approach Traditional assumptions about parenting roles are also being reconsidered. Modern families increasingly include situations where both parents work, both participate in childcare and both contribute substantially to the child’s upbringing. Courts therefore have to look beyond rigid assumptions that caregiving belongs exclusively to the mother or financial responsibility belongs exclusively to the father. The contemporary approach is increasingly child-centred rather than role-centred. The underlying principle is simple: The best parent is not determined merely by gender, income or marital status. The focus must remain on the child’s overall welfare and circumstances. The Child’s Voice Matters — But It Is Not the Only Factor Another sensitive issue is the child’s own preference. A mature child may have a meaningful view about where they wish to live or how frequently they want to meet a parent. Courts can consider such wishes, particularly depending on the child’s age and maturity. However, the child’s preference and the child’s best interests are not necessarily identical. In custody disputes, courts must examine the circumstances in which a preference has developed. Allegations of parental alienation, pressure, manipulation or prolonged exposure to conflict may affect how such preferences are understood. Recent judicial decisions have stressed that the ultimate question remains the child’s welfare. (Indian Kanoon) Joint Parenting Must Never Become Joint Conflict There is an important irony here. Joint parenting can succeed only when parents learn to separate their relationship with each other from their relationship with the child. A parenting arrangement that repeatedly exposes a child to arguments, hostility, competing instructions or pressure to choose sides may defeat the very purpose of shared parenting. The child should not become: The child needs two parents — not two competing camps. What Should Courts Consider? Rather than applying a universal formula, custody and parenting arrangements should ideally consider factors such as: These factors demonstrate why a rigid “50:50” formula cannot be treated as a universal solution. The Supreme Court’s Larger Message Recent Supreme Court decisions also underline the importance of protecting children from unnecessary psychological intrusion during custody litigation. In June 2026, the Supreme Court emphasised a principle of minimum intrusion when courts consider psychological or psychiatric evaluation of children in custody and parental-access disputes, particularly because judicial processes themselves can affect a child’s emotional well-being. (Live Law) This reflects a broader transformation in family law. The child is not merely the subject of a custody order. The child is the person whose future the custody order is supposed to protect. Conclusion: From Parental Rights to Parental Responsibility The emerging judicial approach does not make joint parenting an automatic legal entitlement, nor does it make 50:50 custody the default solution. Instead, it points towards something more fundamental: responsible parenting after separation. Parents may no

India’s social structure has been changing rapidly. Relationships that were once considered unconventional, including live-in relationships, are increasingly visible, particularly in urban India. Indian courts have consequently faced an important question: Should a woman lose legal protection against cruelty merely because her relationship does not have the formal stamp of marriage? The Supreme Court of India has recently provided an important answer. In its judgment dated 3 August 2026 in Dr. Lokesh B.H. & Ors. v. State of Karnataka & Anr., a Bench comprising Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh held that the protection against cruelty under Section 498A of the Indian Penal Code may extend to certain live-in relationships that qualify as relationships “in the nature of marriage.” (Indian Kanoon⁠) The ruling is significant because it recognises that domestic abuse does not necessarily begin or become less serious merely because two people have not formally married. What Did the Supreme Court Decide? Section 498A IPC was traditionally framed around cruelty by a “husband or relative of the husband.” The corresponding provision under the Bharatiya Nyaya Sanhita, which replaced the IPC, is Section 85 BNS. The provision addresses cruelty against a woman and provides for imprisonment of up to three years along with a fine. (Supreme Court Cases⁠) The question before the Supreme Court was whether the word “husband” could, in appropriate circumstances, cover a man who is in a live-in relationship with a woman where that relationship is substantially similar to marriage. The Court answered in the affirmative. However, this does not mean that every live-in relationship automatically comes under Section 498A or Section 85 BNS. The Court specifically limited the principle to relationships that can genuinely be described as being “in the nature of marriage.” The judgment also recognised an intention to marry as an important element in determining whether the relationship falls within this category. (LawBeat⁠) Why Is This Judgment Important? The heart of the judgment lies in the idea of equality before law. The Supreme Court observed that the purpose of Section 498A is to protect women from serious forms of domestic cruelty, including conduct capable of causing grave physical or mental injury or driving a woman towards suicide, as well as harassment connected with unlawful demands for property or valuable security. If the law protects a woman from such cruelty after marriage but completely removes that protection merely because she and her partner have not formally married, the distinction may fail to serve the very purpose for which the law was created. The Court therefore examined the issue through the lens of Article 14 of the Constitution, which guarantees equality before the law. (Live Law⁠) The judgment reflects a broader judicial principle: law cannot remain completely disconnected from changing social realities. Does This Mean Live-In Relationships Are Now Equal to Marriage? No. This is perhaps the most important clarification. The Supreme Court has not declared live-in relationships equivalent to marriage in every respect. The ruling specifically concerns the application of the anti-cruelty protection contained in Section 498A IPC, and its corresponding framework under Section 85 BNS. (Brut.⁠) The judgment does not automatically grant live-in partners every right or benefit available to legally married couples, such as all matrimonial, succession, inheritance or other marriage-specific rights. Therefore, the ruling should not be interpreted as saying: “A live-in relationship is legally the same as marriage.” Rather, its message is narrower but significant: The absence of a marriage certificate, by itself, cannot be used to deny a woman protection from domestic cruelty where the relationship genuinely possesses the characteristics of a marriage-like relationship. What Does “In the Nature of Marriage” Mean? This phrase is crucial. Not every relationship involving two people living together will necessarily qualify. Courts have historically examined factors such as the nature and duration of the relationship, shared household, the manner in which the couple presents themselves socially, the stability of the relationship and other surrounding circumstances while determining whether a relationship resembles marriage. The 2026 judgment adds particular importance to the intention to marry in determining whether the relationship falls within the protective scope of Section 498A. (LawBeat⁠) This means that the courts will still have to examine the facts of each individual case. A Move Towards Gender- and Status-Neutral Protection? The judgment also raises a larger question about how criminal law should respond to changing family structures. Historically, marriage provided the legal framework within which many protections against domestic cruelty operated. But relationships today do not always follow a single traditional model. The Supreme Court recognised live-in relationships as a social reality and emphasised that the law must respond to changing societal circumstances. (LawBeat⁠) This does not mean that the institution of marriage has lost its legal significance. Instead, it suggests that protection from violence and cruelty should not depend entirely upon formal marital status when the underlying relationship performs the functions and carries the characteristics of a family or marriage-like partnership. What About the Bharatiya Nyaya Sanhita? There is an important technical point. The Supreme Court judgment primarily interpreted Section 498A IPC, because that was the statutory provision involved in the case. However, the Bharatiya Nyaya Sanhita, 2023, which came into force in 2024, replaced the IPC. The corresponding provision is Section 85 BNS, which deals with cruelty by a husband or relative of the husband towards a woman. (Supreme Court Cases⁠) The judgment itself discusses Section 85 BNS, and legal commentary has treated the Court’s reasoning as highly relevant to the corresponding provision under the new criminal law framework. (Kamaraj IAS Academy in Chennai⁠) Nevertheless, the judgment should not be overstated: the Supreme Court expressly confined the proposition it laid down to the specific anti-cruelty provision rather than declaring a blanket rule for every area of law. (LawBeat⁠) Protection, Not a Blank Cheque An important aspect of the judgment is that legal protection does not mean that every allegation automatically results in criminal liability. The relationship must first satisfy the legal requirements identified by the Court. The facts surrounding