In A First, Kerala High Court Orders Appointment Of Independent Counsel To Represent Child In Custody Case

In an unprecedented move, the Kerala High Court on Friday directed the appointment of an independent counsel for rendering pro bono legal services to represent a child in a custody battle between its parents. 

While passing the order, the Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas noted that often, the best interests of children are not properly represented in the 'wrangle' between the mother and father. 

The Bench thus accepted the suggestion rendered by the Project Coordinator of the Victim Rights Centre Advocate Parvathi Menon, for appointment of an independent counsel to represent the best interest of children in the custody case.

The suggestion by Advocate Menon was put forth in another matter, which is presently pending. The division bench decided to adopt her suggestion in this case. Menon suggested the formulation of an 'Independent Children Lawyers (ICL) Scheme' by the Legal Services Authorities in the country, whereby lawyers could extend pro bono services to a child.

The Court was seisin a custody battle where the Family Court had granted custody of the child to the father. The original petition before the family court was filed by the father, however later, he did not press it. The mother subsequently filed an interlocutory application before the family court, seeking to get the child back.

The High Court was faced with a question whether the Family Court could have allowed the father to not press the original petition. It opined that Family Court could not have closed the petition without ensuring that the welfare of the child is protected. It thus declared that the original petition would have to be considered, including the petition filed by the mother for the return of the child. 

On further noting that cases under the POCSO Act are registered against the child's maternal grandparents, the Court was fortified in its view that the child's interests had been side-stepped. It thus proceeded to direct District Legal Services Authority, Kozhikode to engage an independent counsel to render pro bono service to the child. 

It further directed the matter to be concluded within three months.

Case Title: X v. Y 

Citation: 2023 LiveLaw (Ker) 429

Case Number: OP (FC) NO. 445 OF 2023

Counsel for the Petitioner: Advocates Jamsheed Hafiz, K.K. Nesna, and T.S. Sreekutty

Counsel for the Respondent: Advocate Bhadra Kumari K.V.