A Child's Voice In Corridors Of Indian Justice In Child Custody Cases

 Besides domestic Interparental child custody conflicts raging all over internally, a 30 million global Indians over the globe, have generated an immense spurt in intercountry, interparental child abduction both to and from India. Not being a signatory to the Hague Convention on Civil aspects of International Child Abduction, 1980, child custody disputes are decided in India on the welfare of the child principle. Foreign Court Orders form only one criteria of consideration. Parental alienation syndrome is writ large. In this backdrop, innocent children are pawns in interparental conflicts and find little expression. Juvenile Justice (Care and Protection of Children) Act, 2015, has now found a definition of the “best interest of child”. Under the Guardian and Wards Act, 1890, if the minor is old enough to form an intelligent preference, the Court may consider that preference. 

Expeditious return of abducted children from India to their foreign homes finds no mechanical application as India does not follow a mirror order jurisprudence as a Non-Hague signatory country. The extra ordinary parens patriae constitutional jurisdiction of Indian Supreme Court and High Courts is invoked in the best interest and welfare of the removed child. In this quagmire, the child's feelings, wishes, desires, apprehensions, fears and innate expressions are lost in the battle of warring parents fighting to establish, superior and preferential parental claims of establishing custody. 

In this din of spousal war, the child is a silent spectator. No Indian statute gives him or her the right to speak his or her mind. A child deserves a right of speech and expression. Indian laws seriously require amendment. This, unfortunately, is. a bridge too far.       

Children are not mere bystanders in the legal tussles over their destinies. They are the beating heart of each custody dispute—a treasure whose rightful keeper we must discern with the utmost care. In the Indian Courts, as in all civilised realms, the best interest of the child stands paramount. Yet we dare not forget the child's own voice, for it is often the surest guide to justice.

A Mandate from the Wider World

We do not stand alone in this endeavour. India is a signatory to the United Nation Convention of Rights of Child (UNCRC). The mighty voice of international law resonates in Article 12 of the UNCRC, acceded to by India in 1992. This clarion call proclaims a children's right to express views freely in every matter that concerns them, and in Article 3, it enjoins us to make the child's best interests, our primary consideration (UNCRC, 1989). In our own land, the Juvenile Justice (Care and Protection of Children) Act, 2015, echoes this refrain, defining the “best interest of the child” as the guiding star of all decisions bearing upon a child's physical, emotional, and social well-being (Section 2(9)).

Domestic law 

The structure of our domestic law, from the Guardian and Wards Act, 1890, to the Hindu Minority and Guardianship Act, 1956, entrusts courts with the noble duty of ensuring that any guardianship arrangement truly safeguards the child's welfare.   The landmark judgment, Nil Ratan Kundu v. Abhijit Kundu (2008) 9 SCC 413, stands testament to this principle, solemnly declaring the child's welfare as the “paramount consideration.”

Yet experience has taught us that the child's own utterances, tempered by age and comprehension, lend a perspective no Court should ignore. The Supreme Court in Yashita Sahu v. State of Rajasthan, 2020 SCC OnLine SC 360, underscored that while a child's preference may not be the final word, it can prove an invaluable beacon, guiding us toward a well-rounded resolution.

Supreme Court & High Courts perform a salutary function in exercising their vibrant child protection parens patriae jurisdiction to do justice to children in fit cases, dehors technicalities of law.  Sadly, the outmoded & antiquated Guardian & Wards Act, 1890, prescribing singular guardianship & custody rights, is an anti-thesis to the rights of the child to a unified Family Life. Shared parenting, joint custody of both parents & rights of children to be cared by fathers & mothers, are unknown statutory concepts and thus find no meaningful recognition in Indian Family Courts.

Guardians, Courts, and the Child's Dignity

In the grand tradition of parens patriae, our superior Courts hold the solemn responsibility of shielding the child's interests. However, in fulfilling that sacred role, we must not stifle the child's spirit. When Courts converse with a youngster in private chambers, let it be more than a formality—let it be a genuine bid to glean the child's wishes and fears, an overawed child may be expressionless , alienated or unable to speak his or her true mind .If our shared mission is to preserve not only the letter of the law but also the dignity of our youth, we must ensure that no child is treated like a trophy to be awarded, but rather as a cherished individual whose feelings matter mightily.

Shared Custody: A Vision for Cooperation

As the concept of shared custody gains traction, we observe a swift departure from the once rigid notion of sole parental authority. In Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228, the Supreme Court cast a light on these archaic boundaries, suggesting that traditional paternal guardianship should yield to more balanced arrangements. Here, again, the child's voice must inform us. If a joint custody plan is to thrive, it must yield to the rhythms and preferences of the very person at its centre.

The Call to Action

Let us, then, rise above petty rivalries and rhetorical grandstanding. The future of a child is too sacred a ground for contentious theatrics. Children are not chattels; they are persons endowed with rights, deserving to be heard and cherished. By inviting their voices into the hallowed halls of justice, we stand true to the spirit of the UNCRC and our Indian jurisprudence.

 May we remember that a fair hearing for the child is not only an obligation but also an honour, for in their fledgling words lie the seeds of tomorrow's society. Let us carry ourselves with compassion, vigilance, and humility as we shape laws and craft judgments that elevate the youngest among us. In so doing, we safeguard the promise of our nation's future, ie handling one child at a time.    

The Breakthrough: Dawn of a new Jurisprudence  

Justice A. Mustaque Judge Kerala High Court, author of multiple Judgements on welfare of children in need of care and protection, has innovated and introduced a brilliant and ingenious machinery of child support lawyers within the existing infrastructure of our existing legal systems. 

The Child Legal Assistance Programme (CLAP) is the watershed in this arena of darkness of the child with no voice. The Kerala State Legal Services Authority (KeLSA)was directed to frame a scheme for Child Legal Assistance in guardianship matters and also in matters involving child sexual offences. In the light of the direction, CLAP has been formulated, to appoint lawyers who are willing to independently represent children who will be hereinafter referred to as 'Child Support Lawyer 'in custody matters and all such litigations where child rights are involved in the Courts/Authorities concerned in the State of Kerala. The Project, i.e. (CLAP) will function under the aegis of the Kerala State Legal Service Authority (KeLSA) constituted under the Legal Services Authorities Act,1987, to extend legal and psychological support to children, and facilitate them to express their views and concern and enable the Courts/Authorities concerned to take a decision to secure the paramount welfare and best interest of the children in the litigation.

Existing laws enunciate best interest phraseology but provide no instant remedy or mechanism to air views of children. Child custody battles have become platforms of parallel divorce related allegations to establish superior parental authority for child custody. Children have lost their voice in these divorce wars. A Child is only a trophy to be won in the bargain. The polarised, alienated, confused, brainwashed, dejected child is resigned to fate & becomes a piece of property. By the time the paraphernalia of law provides counselling, psychological analysis & intervention of mediators, damage done to the child is irreversible. Good in intent, its meaning is lost. A sane analysis is impossible. As Justice Sikri in the Supreme Court Judgement of Vivek Singh Vs Romani Singh, 2017(3)) SCC 231, sums up, the level playing field of any decision is lost. Reported cases have shown that families break up, children are split amongst parents & the die is cast. Spontaneously and unconsciously, Children lose their right to Family Life.

CLAP & Child Support Lawyer (CSL)

The far-fetched wisdom and outreach of Justice Mustaque in creating CLAP with a cadre of CSL is therefore a breakthrough. If a CSL appears as Counsel for the Child at the earliest Court hearing possible, children will have an unpolluted voice to hear their views for the independent consideration and adjudication by the concerned Court. An independent, neutral & impartial opinion of the child will come to the fore. Courts with their wisdom can then separate the chaff from the grain for the true welfare of the child. Honouring a child's view, under immediate interim Court Orders, both parents can share parental duties and responsibilities, dissolving their mutual acrimony & bitterness in the best interest of a child. A new process of recognition of voice of Child rights will emerge.

The ideology of CLAP & CLS is worth replicating over all jurisdictions under different High Courts in India. It needs no statutory amendments of existing Family Laws, no major overhaul of the existing legal machinery & is simple to implement, effectuate and put in immediate motion. National & State Judicial Academies can facilitate implementation of this innovative programme for knowledge sharing & immediate use. Let us not delay this path of child justice anymore.

ADVOCATE, ANIL MALHOTRA, IAFL FELLOW, L.L.M. (LONDON)*

Secretary, IAFL International Child Relocation Committee.

E-mail: anilmalhotra1960@gmail.com

Website: https://www.anilmalhotra.co.in

https://carefulchildrelocation.com/india-5/

ANKIT MALHOTRA, ADVOCATE, L.L.M (LONDON), FELIX SCHOLAR**

E-mail: ankitmalhotra97@gmail.com

Website: https://www.ankitmalhotra.co.in/

Views Are Personal.