HIGH COURT OF UTTARAKHAND AT NAINITAL

Hon’ble Chief Justice Ms. Ritu Bahri

Hon’ble Justice Sri Rakesh Thapliyal
06th March, 2024
Writ Petition (PIL) No. 28 of 2024
Shruti Joshi …............ Petitioner
Vs.
State of Uttarakhand & Ors. ….......Respondent
Counsel for the Petitioner : Ms. Shruti Joshi, in person.
Counsel for the respondent : Mr. S.N. Babulkar, Advocate
General with Mr. Rajeev Singh
Bisht, Standing Counsel for th State
and Mr. V.K. Kaparuwan, Standing
Counsel for Union of India.

Upon hearing the learned Counsel, the Court made the

following Judgment:
(Per Ms. Ritu Bahri, C.J.)

1. A letter dated 11.01.2024, issued by Government of

India, Ministry of Law & Justice to all the Law Secretaries
and all the Registrar General of respective High Courts
which relates to the proposal of Dr. Veena Madhav
Tonapi, former Principal of JSS Sakri Law College, has
been handed over to the learned Advocate General, which
pertains to the qualification of counsellors and
adjustments in the conciliation process within the
framework of Family Courts. As per this letter, there is a
proposal for amendment for effective counseling,
appointment of marriage counsellors and qualification for
appointment of marriage counsellors has been given. The
proposed amendment does not lay down any criteria for
appointment of any lawyer as a counsellor, so, in future,
no lawyer can be appointed as a counselor to assist in the
matter of mediation. Apart from this, at page 89, of the
Shah Commission Report has recommended that the
Court should have the power to obtain an independent
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psychological evaluation of the child, in order to

determine various related issues in the case of
mediation, professional assistance may be required, as
neither the court nor mediators may be qualified to
understand child psychology.

2. Apart from this observation, Law Commission has

recommended amendment of the Hindu Minority and
Guardianship Act, 1956, which is Annexure-1 with this
report.
3. In the present case, as per the information given to
the Court in FAO No. 1378 of 2021, in the High Court of
Punjab and Haryana, the Union of India has submitted
the report that consent of all the States except State of
Bihar has been received as on 09.12.2022.
4. Since the procedure for amendment in the pending
Hindu Minority and Guardianship Act, 1956, is a lengthy
procedure, a direction is being given that all the
recommendations made by the Commission vide
Annexure 1 should be made mandatory to be followed by
the Family Courts and the letter dated 11.01.2024, issued
by Government of India, Ministry of Law & Justice should
also be followed for appointment of counsellors, who are
Child Psychologist/General Counsellors, so that their
report is scientific and can be taken as an evidence for
granting custody of the child to any either of the parents
and these guidelines have to be followed with respect to
custody, even if divorce is granted to both the parents. If
they want any counseling to be done at this stage, it is
only a psychologist who can give them guidance for
proper upbringing of the child.
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5. This Court has been observing in the past that

while dealing with the disputes of the parents the child’s
emotional needs and proper emotional growth has never
been examined and by the time litigation reaches the High
Court the children have already faced agony for at least 5
to 9 years. This Court is of the view that at this stage, this
direction is necessary to be given that the child’s custody
has to be shared by both the parents as well as by the
grand-parents so that his emotional growth is not
affected. The child has to bear many peer pressure when
he grows up. The individual who have to get married and
their parents should be made aware that when the
children get married and they have a child it is
mandatory to follow the guidelines of share parenting laid
down by the Shah Commission in its report dated
22.05.2015. As nine years have gone by and the
amendment has not been carried out which may take
more time , the responsibility of the next generation who
has to get marry and their parents towards the child who
was born should be crystallized and should be followed
with emotional care and without any ego.
The recommendations of amendment proposed in
the Hindu Minority and Guardianship Act, 1956,
Annexure no. 1, and Guardianship and Wards Act, 1890
as Annexure No. 2 have laid down in detail the meaning
of the word joint custody, procedure to be followed during
mediation and procedure to be followed for grant of joint
custody, preferential of the child and, fixing grand
parenting time. They have laid down the parenting plan
that should minimize the child’s exposure to harmful
parental conflict and encourage parents to mutually
agree on the division of responsibilities of the child’s
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upbringing through agreements in the parenting plan,

rather than by relying on court intervention.

6. This Court is not issuing writ of Mandamus for

amendment. It is only giving directions that these
proposed amendments should be mandatorily followed
while dealing with the matrimonial disputes, custody
cases dealt by the Family Courts and during mediation.
The direction issued is mandatory subject to the
amendment made by the Legislation.
7. This Court appreciates gesture made by Ms. Shruti
Joshi, Advocate to initiate this PIL for the larger public
interest of the children and facing agony during
matrimonial proceedings and their parents.
8. In the present case, since Uttarakhand is a hilly
State, steps have already been taken for effective
mediation and counseling can be done through Whats
App and other electronic mode so that parties have not to
travel from far away places.
9. Let a copy of this order be given to learned Advocate
General for the State, Deputy Solicitor General for Union
of India.
10. Registrar General is directed to circulate the copy of
this order to all the District Judges and District Legal
Services Authorities in the State.
11. In view of the above, the present Public Interest
Litigation is disposed of.

(Rakesh Thapliyal, J.) (Ritu Bahri, C.J.)

06.03.2024
PV/RB
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