RECONCEPTUALISING PARENTHOOD IN INDIAN FAMILY LAW: SHARED PARENTING AND THE CASE FOR PATERNITY LEAVE
Keywords:
Shared parenting, paternity leave, natural guardian, breadwinner-caregiver, best interest of the childAbstract
The hierarchy within parenting laws in India continues to undermine joint parenthood and gender equality. This paper demonstrates the legal framing of parenthood through Hindu Minority and Guardianship Act, 1956, and the Guardians and Wards Act, 1890, which designate fathers as the "natural guardians" while consign mothers to secondary status, yet
parallely relegate fathers to breadwinning roles through the absence of statutory paternity leave. Analysing the landmark judgment by the Supreme Court in Hamsanandini Nanduri v. Union of India, 2026 where paternity leave was recognised as a social security entitlement. The dichotomy between legal guardianship and actual caregiving perpetuates the "best
interest of the child" as an abstract principle rather than an enforceable reality. The absence shared parenting and paternity benefits schemes becomes a major impediment to bond. This paper introduces legislation reforms to the hierarchical structure of guardianship and install equal parental responsibility, which includes mandate parenting plans, and creating a statutory right for all parents, regardless of gender, to have parental leave. In order to reconceptualise parenthood, it is necessary to move away from the "breadwinner-caregiver" model of parenting towards a child-centred model in which both parents' involvement in their child's upbringing is presumed and supported by law and policy.
References
MULLA, INTRODUCTION TO HINDU LAW (25th ed. 2024).
The Guardians and Wards Act, 1890, No. 8, Acts of Parliament, 1890 (India).
NCERT, INDIAN SOCIETY: TEXTBOOK IN SOCIOLOGY FOR CLASS XII 45 (National
Council of Educational Research and Training 2024); see also P. Sharma, Policy gaps in paternity
leave in India, 5 J. INDIAN L. 88, 92 (2021).
WORLD BANK GENDER DATA PORTAL,
https://genderdata.worldbank.org/en/economies/india (last visited Apr. 2, 2026); see also R. Ray
et al., Paternity leave, child welfare, and maternal health, 17 SOC. POL. 1, 10 (2010).
UNICEF, https://www.unicef.org/press-releases/fathers-are-one-best-yet-most-underutilized-
child-development-resources-unicef (last visited Apr. 2, 2026); see also B. Indhu & S.
Maruthuvijayan, Bridging the Care Gap: The Role of Paternity Leave in Promoting Workplace
Equality in India, 10 IJRTI 472, 473 (2025).
UNICEF, https://www.unicef.org/parenting/child-care/what-you-need-know-about-parent-child-
attachment (last visited Apr. 2, 2026); see also Subbalaxmi & M. Sanjeev, A Study on the Need of
Paternity Leave, Laws and Its Implications in India, 5 IJAEM 396, 398 (2023); see also R. Petts
et al., Parental leave and gender equality in the workplace, 35 GENDER & SOC'Y 1, 8 (2021).
The Hindu Minority and Guardianship Act, 1956, No. 32, Acts of Parliament, 1956 (India).
The Guardians and Wards Act, 1890, No. 8, Acts of Parliament, 1890 (India).
The Hindu Minority and Guardianship Act, 1956, § 6, No. 32, Acts of Parliament, 1956 (India).
Hindu Minority and Guardianship Act, supra note 7.
Guardians and Wards Act, supra note 2.
Aparajita Jha & Sanchit Khandelwal, No Legal Rationale for Primacy: Revisiting Section 6(a) of
the Hindu Minority and Guardianship Act, 1956, SCC ONLINE BLOG (Nov. 7, 2020),
https://www.scconline.com/blog/post/2020/11/07/no-legal-rationale-for-primacy-revisiting-
section-6a-of-the-hindu-minority-and-guardianship-act-1956/; see also SCC ONLINE BLOG,
https://www.scconline.com/blog/post/tag/section-6-hindu-minority-and-guardianship-act-1956/
(last visited Apr. 2, 2026).
Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.
L. Haas & T. Rostgaard, Fathers’ rights and parental leave policies, 21 J. EUR. SOC. POL'Y
, 305 (2011); see also B. HARRINGTON ET AL., THE NEW DAD: PATERNITY LEAVE
AND FATHERHOOD 1, 12 (2012); see also C. Miller, Fathers and workplace inclusion, HARV.
BUS. REV. (Nov. 4, 2019), https://hbr.org/2019/11/fathers-and-workplace-inclusion.
Mandra Pandey v. Pramod Pandey, (2011) 12 SCC 1.
Hindu Minority and Guardianship Act, supra note 7.
The Bharatiya Nagarik Suraksha Sanhita, 2023, § 144, No. 46, Acts of Parliament, 2023 (India).
Aarushi Prasad, A Labour of Love, NLSIR ONLINE BLOG (Mar. 18, 2021),
https://forum.nls.ac.in/nlsir-online-blog/a-labour-of-love/.
Journal of Family and Adoption ISSN: 3048-5054
Volume:9, Issue:1, 2026
Research Article
Received Date: April 07 th 2026
Accepted Date: April 29rd, 2026
Published Date: May 05 th , 2026
| Page
Ms. Sanskruti, Lack Of Paternity Leave Is Negating The Purpose Of Maternity Leave, LIVELAW
(Dec. 2, 2023), https://www.livelaw.in/lawschoolcolumn/lack-of-paternity-leave-is-negating-the-
purpose-of-maternity-leave-243528.
LAW COMMISSION OF INDIA, REFORM IN GUARDIANSHIP AND CUSTODY LAWS IN
INDIA, Report No. 257, 1 (2015),
https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081
pdf.
Githa Hariharan, supra note 13; see also B. Saravanan v. Deputy Inspector General of Police,
Tirunelveli, 2020 SCC OnLine Mad 1629.
Convention on the Rights of the Child art. 18, Nov. 20, 1989, 1577 U.N.T.S. 3.
Soumya Shrivastava & Pradyuman Singh, The Best Interest of the Child in Custody Disputes, 4
NLUO L.J. 116, 118 (2017); see also Shikha Upadhyay, Best Interest of Child, 1 JAJ L.J. 1, 5
(2020), https://jajharkhand.in/wp-content/uploads/2025/07/best-interest-of-child.pdf ; see also
COMM. ON THE RIGHTS OF THE CHILD, GENERAL COMMENT NO. 14 ON THE RIGHT
OF THE CHILD TO HAVE HIS OR HER BEST INTERESTS TAKEN AS A PRIMARY
CONSIDERATION (ART. 3, PARA. 1), U.N. Doc. CRC/C/GC/14, 1, 4 (2013),
https://www2.ohchr.org/English/bodies/crc/docs/GC/CRC_C_GC_14_ENG.pdf.
Guardians and Wards Act, supra note 2.
N. A. Pradeep & M. George, Paternity Leave Policies: The Sexist Gap in The Indian And Global
Parental Policies, 2 DME J. L. 54, 56 (2020); see also Ananya Dhanuka & Kashish Banthia,
Paternity Benefit Leaves in India: Need, Cost and Gender Reform, 1 INT'L J. L. POL'Y & SOC.
ISSUES 1, 3 (2021); see also M. Budig & J. Misra, How parental leave impacts employee
retention, 37 WORK & OCCUPATIONS 450, 452 (2010).
Hindu Minority and Guardianship Act, supra note 7.
Id.
Guardians and Wards Act, supra note 2.
Gaytri Bajaj v. Jiten Bhalla (2012) 12 SCC 471.
The Guardians and Wards Act, 1890, § 17, No. 8, Acts of Parliament, 1890 (India); see also Anna
Gavanas, Married Fathers and Caring Daddies: Welfare Reform and the Discursive Politics of
Paternity, 50 SOC. PROBS. 461, 465 (2003); see also S. Chatterjee, Workplace equality and
parental leave in India, 10 INDIAN J. L. & SOC'Y 112, 115 (2019).
Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67.
Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.
Nil Ratan Kundu v. Abhijit Kundu (2008) 9 SCC 413.
CORNELL LAW SCHOOL, https://www.law.cornell.edu/wex/parens_patriae (last visited Apr. 2,
Saippa v. State of Kerala, (2019) 16 SCC 411.
Vivek Singh v. Romani Singh, (2017) 3 SCC 312.
Dr. Surendra Kumar, Shared Parenting and Joint Custody in Indian Family Law: A Doctrinal
Critique of Legislative Silence and Judicial Activism, 5 IJIRL 1, 3 (2024); see also S. Bharat,
Gender roles and caregiving in Indian families, 23 J. FAMILY STUD. 1, 5 (2017).
Hindu Minority and Guardianship Act, supra note 7.
Guardians and Wards Act, supra note 2.
The Paternity Benefit Bill, 2017, Bill No. 154 of 2017 (India).
The Maternity Benefit Act, 1961, No. 53, Acts of Parliament, 1961 (India).
Is Paternity Leave in India Really the Need of Hour?, PROBONO INDIA (Oct. 10, 2020),
http://probono-india.in/blog-detail.php?id=181; see also Anindita Chowdhury, Paternity Leaves:
The Sexist Gap In Our Parental Policies, FEMINISM IN INDIA (May 24, 2021),
https://feminisminindia.com/2021/05/24/paternity-leaves-sexist-gap-parental-policies/.
Law Commission of India, Consultation Paper on Reform of Family Law 1 (31 Aug. 2018),
https://archive.pib.gov.in/documents/rlink/2018/aug/p201883101.pdf.
Journal of Family and Adoption ISSN: 3048-5054
Volume:9, Issue:1, 2026
Research Article
Received Date: April 07 th 2026
Accepted Date: April 29rd, 2026
Published Date: May 05 th , 2026
| Page
Hamsaanandini Nanduri v. Union of India, 2026 INSC 246.
The Code on Social Security, 2020, § 60(4), No. 36, Acts of Parliament, 2020 (India).
ibid.
Deccan Herald, Supreme Court Urges Recognition of Paternity Leave as Social Security
Benefit (Mar. 17, 2026),https://www.deccanherald.com/india/supreme-court-urges-recognition-
of-paternity-leave-as-social-security-benefit-3935597.
Hindu Minority and Guardianship Act, supra note 7.
Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.
Rhythm Singh v. Anshuman Singh, Contempt Pet. (C) No. 51/2025.
The Guardians and Wards Act, 1890, § 9(1), No. 8, Acts of Parliament, 1890 (India).
Hindu Minority and Guardianship Act, 1956, § 13, No. 32, Acts of Parliament, 1956 (India).
Guardians and Wards Act, 1890, § 17, No. 8, Acts of Parliament, 1890 (India).
X v. Y, CRL.REV.P. 409/2024 & CRL.M.A. 9309/2024
Code of Criminal Procedure, 1973, § 125, No. 2, Acts of Parliament, 1973 (India).
Jwalika Balaji, A Labour of Love: Making the Jurisprudential Case for Paternity Leave in India,
NLSIR Online (Mar. 23, 2023),https://forum.nls.ac.in/nlsir-online-blog/a-labour-of-love/.
Guardians and Wards Act, 1890, § 17, No. 8, Acts of Parliament, 1890 (India).
Hindu Minority and Guardianship Act, 1956, § 13, No. 32, Acts of Parliament, 1956 (India).
Smriti Madan Kansagra v. Perry Kansagra, (2021) 9 SCC 762.
Children Act 1989, § 3 (U.K.).
Cent. Civil Servs. (Leave) Rules, 1972,
https://documents.doptcirculars.nic.in/D2/D02est/updatedccsleaverulesN9ExV.pdf
Anjali Kapoor v. Rajiv Baijal (2009) 7 SCC 322
Aranya Kumar Sahoo v. Arpita Sahoo, CRLMP No. 2365 of 2023
Maternity Benefit Act, 1961, § 5, No. 53, Acts of Parliament, 1961 (India).
Fox & Mandal, SC Flags Need for Paternity Leave Framework, https://foxmandal.in/News/sc-
flags-need-for-paternity-leave-framework/ (last visited Apr. 1, 2026).
Economic Times, SC Asks Govt to Plan Law for Paternity Leave: Here's What Top Court Has
Said (Mar. 18, 2026), https://economictimes.indiatimes.com/news/india/sc-asks-govt-to-plan-law-
for-paternity-leave-heres-what-top-court-has-said/articleshow/129655236.cms?from=mdr.
Hindu Minority and Guardianship Act, supra note 7.
Guardians and Wards Act, supra note 57.
