Context
In the context of a possible implementation of a) Uniform Civil Code (UCC through a special session of Parliament in September 2023, the debate goes beyond traditional issues such as polygamy and divorce. While these are important issues, the scope of a comprehensive UCC should include a broader perspective, particularly the incorporation of the 'best interests of the child' principle in custody disputes and a nuanced approach to defining the rights of biological parents in comparison to adoptive parents.
 
What is UCC? 
The term "Uniform Civil Code" refers to the proposal to enact a standardised collection of civil rules that would apply uniformly to all individuals within a country, regardless of religion or cultural affiliation.
 
The Underlying Principle of the UCC 
·         The purpose of a Uniform Civil Code is to provide equality and uniformity in the sight of the law. 
·         It aims to replace existing personal laws that are based on religious practises and govern different parts of life such as marriage, divorce, inheritance, adoption, and succession.
  
Constitutional aspects pertaining to UCC
·         Directive Principles of State Policy: According to Article 44 of the Indian Constitution, the state shall endeavour to establish a uniform civil code throughout India's whole territory. This guiding principle emphasises the need of pursuing a standardised set of civil laws for all citizens.
·         Promoting Secularism: Secularism, which mandates the separation of religious organisations from the state, is one of the key principles incorporated in the Indian Constitution. The adoption of a Uniform Civil Code coincides with this concept by guaranteeing that all people, regardless of religious affiliation, are treated equally.
·         Equality and Non-discrimination: Article 14 of the Constitution guarantees equality before the law and forbids discrimination based on criteria like as religion, race, caste, gender, or place of birth. A Uniform Civil Code would promote these objectives by ensuring that all citizens, regardless of religious affiliation, have equal rights and protection under the law.
·         Gender Justice Advancement: The Constitution also guarantees the right to equality and prohibits gender-based discrimination. A Uniform Civil Code is considered as a tool for advancing gender equity by establishing equal rights and opportunities for people of all genders, hence building a more inclusive and equitable society.
 
Child custody and current legal framework 
The procedure for establishing child custody in the current framework, formed by the Guardians and Wards Act of 1890, with a variety of diverse personal legislation, is primarily anchored in the primacy of the child's well-being. Despite the fact that the Hindu Minority and Guardianship Act of 1956 specifies the father as the natural guardian, it is critical to restate and emphasise the critical relevance of the principle centred on the 'best interests of the child.' Recent events in courtrooms have revealed a tendency to favour biological parents over adoptive parents, frequently without sufficiently considering the child's wellbeing.
 
Custody under Islamic law 
·         In a noteworthy departure from traditional law, Islamic law assigns custody rights to the child rather than the parents. 
·         This particular order of custody rights starts with the mother, then maternal relatives, and finally the father. 
·         This strategy naturally prioritises the child's well-being and is not influenced by the parents' religious beliefs.
·         It acknowledges that the paramount concern in custody and guardianship is the welfare of the child. 
·         Examples:
1.  The Shafii and Hanbali schools give custody to the mother till the daughter’s marriage. 
2.      The Maliki school gives the mother custody of the male child till puberty and the female child till her marriage, after which the child gets the right to choose.
  
Complex cases: Biological Parents and Adoption
Custody Dispute After Adoption – Githa Hariharan (1999) Judgment:
·         Related to a recent case where a child was adopted following allegations of rape.
·         Criticism of the Bombay High Court’s decision: 
1.      Custody was granted to the biological father (accused of rape) without regard for the child's best interests or the viewpoint of the biological mother.
2.      Concerns that demanding the assent of a rapist father in such circumstances will set a bad precedent.
 
Custody Dispute Involving Adoptive Parents – Nasrin Begum (2022) Judgment: 
·         This was in reference to a custody fight between biological and adoptive parents over a girl kid.
·         The Allahabad High Court's decision was criticised since it granted custody to the biological parents based on the child's right to know her true identity. The court disregarded the child's and adoptive parents' emotional anguish.
 
What are the concerns in adoption? 
·         These cases demonstrate the ambiguity that exists in custody battles between biological and adoptive parents.
·         The rules for adoption vary depending on the community and other factors such as gender, age, and marital status.
·         When the courts prioritise the claims of biological parents over those of adoptive parents, the child's best interests are ignored.
·         This highlights the need for more clarity on adoption and the rights of adoptive parents.
·         These incidents call into question the existing legal framework and call for a more comprehensive approach to custody issues.

The role of a progressive UCC  
·         A progressive UCC should place less emphasis on biological relationships and more emphasis on protecting the rights of adoptive parents.
·         It should take a comprehensive approach to custody that looks beyond biological relationships and focuses on adoptive parents' rights and varied family arrangements.
·         This method will promote adoption while putting the well-being of the adopted child first.
·         It must also move away from traditional matrimonial conceptions and include laws that promote guardianship rights for single parents, surrogate parents, and LGBT parents.

Conclusion  
As part of its efforts to build a modern and citizen-friendly Uniform Civil Code, India must prioritise the best interests of the kid and reinterpret parental rights in custody disputes.
The Parliamentary Standing Committee on Personnel, Public Grievances, and Law and Justice issued a study in 2022 titled "Review of Guardianship and Adoption Laws," which urged for district-level surveys to discover orphaned and abandoned children.
The current UCC in India should balance the rights of biological parents and adopted parents while prioritising the child's wellbeing.
A progressive UCC with modern principles that ensures equal rights for adoptive, surrogate, single, and LGBT parents in order to ensure that the country's legal system is inclusive and caring.

LTX Mains Question
Q. In the framework of a prospective Uniform Civil Code, how does the "best interests of the child" premise impact custody disputes? Discuss the difficulties that courts encounter in reconciling legal considerations with the emotional well-being of the kid.