RECONSIDERING THE TENDER YEARS DOCTRINE IN INDIA: CONSTITUTIONAL INCOMPATIBILITY, CHILD RIGHTS, AND THE CASE FOR GENDER-NEUTRAL SHARED PARENTING

AUTHOR – TK ARATHI TANVI & JOHN CALEB

STUDENTS AT SCHOOL OF LAW, CHRIST (DEEMED TO BE UNIVERSITY)

BEST CITATION – TK ARATHI TANVI & JOHN CALEB, RECONSIDERING THE TENDER YEARS DOCTRINE IN INDIA: CONSTITUTIONAL INCOMPATIBILITY, CHILD RIGHTS, AND THE CASE FOR GENDER-NEUTRAL SHARED PARENTING, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 6 (3) OF 2026, PG. 82-92, APIS – 3920 – 0001 & ISSN – 2583-2344. DOI – https://doi.org/10.65393/EMIR4802

Abstract

The child custody regulations of India for children who are under five years of age follow Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which establishes a legal presumption that mothers will typically receive custody of their children. The paper presents three related arguments. The first argument proves that Section 6(a) grants mothers preferential custody rights, which violates Articles 14, 15, and 21 of the Indian Constitution because it fails to meet the requirements established by Shayara Bano v. Union of India and the constitutional anti-stereotyping principle derived from Anuj Garg v. Hotel Association of India. The second argument shows that Indian custody decisions disable the constitutional rights of children because judges disregard Article 12 of the United Nations Convention on the Rights of the Child, which India has ratified, and treat child welfare as an unimportant matter instead of their main focus. The third argument establishes that existing laws should create a shared parenting framework because current legal gaps force children from separated families to endure unnecessary harm.

The research develops through three components that include Indian constitutional law the Supreme Court of India and two legal codes from the United Kingdom and Australia and the Uniform Marriage and Divorce Act and the research about attachment in developmental psychology. The research presents a complete reform plan which involves three main elements. The first element requires the elimination of gender-based presumption through the repeal of Section 6(a). The second element establishes a welfare assessment system which follows the guidelines of the Children Act 1989. The third element establishes joint parental responsibility as the standard legal requirement. The fourth element requires all disputed custody cases to include systems that allow children to take part.