Children Are The Real Sufferers In Matrimonial Disputes:Delhi HC Calls For Suggested Guidelines [Read Petition]

When it comes to matrimonial disputes, children are the real sufferers. So has been observed by courts in various judgments.

The Delhi High Court had recently lamented how children are used as tools of vengeance by disputing parents and how it is a child's fundamental right to get love of both the parents. Even in custody matters, welfare of child is of paramount importance.

With the best interest of such children in mind,  NGO 'Art of Learning Foundation' has moved the Delhi High Court highlighting the pressing need for guidelines to safeguard best interest of children whose parents are engaged in legal battles, especially those whose marriages have suffered irretrievable breakdown.

The PIL seeks a direction to the Ministry of Law and Justice for formulating guidelines for expeditious resolution of matters involving visitation, child custody and maintenance so that the child does not become a victim of delayed court proceedings in the legal battle between her/ his parents.

Petitioner's counsel and secretary of Art of Living Foundation Kaadambari Puri also stressed upon need for framing timelines for deciding cases involving minor children.

She also sought directions to the ministry for a sensitisation programme for all judicial officers and guidelines for handling such cases to address the problem of varying views of courts in different cases with similar set of facts.

A bench headed by Acting Chief Justice Gita Mittal has now directed the NGO to place before it "suggested guidelines upon consideration of the standing guidelines which are in place in  different states in India on the issue raised in this petition".

The NGO, which is engaged in training programs and workshops with school children, moved court after it came across  various cases where children were undergoing some form of adverse psychological state on account of either forced alienation from one of the parents or the ongoing custody/divorce battle between their parents.

"The ‘best interest of the child’ is not paramount in each delayed court proceeding,exposingchildren to conflicts of their parents that sows seeds of anxiousness, distraught, hopeless, trust issues, dejection and worthlessness and children develop habitual depressive symptoms," Puri said.

Child's fundamental right to get love of both parents

The Delhi High Court had said it is a child's fundamental right to be loved by both parents.

Debating against alienation from one parent, the PIL reiterated the same as it relies on the Report no.257 on “Reforms in Guardianship and Custody Laws in India” by the Law Commission of India released in May 2015.

The commission emphasised on strengthening the welfare principle in the Guardians and Wards Act, 1890, and its
relevance in each aspect of guardianship and custody
related decision-making.

It also talked about providing equal legal status of both parents with respect to guardianship and custody and detailed guidelines to help decision-makers assess what custodial and guardianship arrangement serves the welfare of the child in specific situations; and for the option of awarding joint custody to both parents, in certain circumstances conducive to the welfare of the child.

The petitioner stated how states like Maharashtra and Himachal Pradesh had guidelines in place for all such cases which included framing of interim visitation plan as soon as the summons are served and courts taking medical help to assess psyhological state of parents and children.

The PIL seeks to fill these loopholes:

1. Absence of guidelines with regard to the matters involving custody, care and visitation rights of the minor children of litigating couples in NCT of Delhi.


2. Dichotomous and extremely variable orders being passed for identical situations on the basis of the personal perception and arbitrary discretion exercised by the individual judicial officers


3. Non-cognisance of the lifelong adverse impact on the emotional quotient, stability and welfare of the children on account of alienation & separation from one of their parents on account of the inordinate delay in adjudication of the child custody and visitation petitions (both interim and final), thus necessitating a minimum mandatory period for adjudication of such applications.


4. Urgent requirement of formulation of guidelines that shape the judicial officers’ approach rather than the current subjective
   approach adopted by the courts in matters involving children.


5. Need for guidelines for conduct of proceedings prohibiting slanderous allegations in the open court and/or within the hearing of minor children or third parties.


6. Need for cognizance of the alienation undergone by the separated parent as well as his side of the extended family, who suffer great trauma on account of the separation.


7. Urgent need for guidelines, which includes mandatory psycho- therapy of the child and the psychologists be
   appointed under the Family Courts for due scrutiny and regular family counseling and which also may be assigned for the entire family that includes regular assessment of the parents and their behavior towards the child and other aspects of the care- giving process as required for a nurturing  development of the child.