[Custody Battle] Child's Interests Often Not Represented Properly In 'Wrangle' Between Mother & Father: Kerala High Court

The Kerala High Court recently lamented the condition of children caught in custody battles between their parents. "In the wrangling between the mother and the father, often interest of the children are not properly represented," said a Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas.

The Court therefore made an unprecedented direction for appointment of an independent counsel to render pro bono legal services to represent the child's interest in the case at hand.

The Bench was seized with a petition arising from a Family Court order which had granted interim custody of the child to the father but later closed the case as the father decided to not press the petition. As a consequence, mother's application seeking back child's custody was dismissed.

The High Court was faced with the question as to whether in such a situation, a Family Court can close the petition without ensuring that the welfare of the child is protected.

Answering in the negative, the High Court declared,

"In the parens-patriae jurisdiction in which the Court stepped into, the Court has duty to see that child's interest is protected, especially when Court passes orders in the matter...We note, in the wrangling between the mother and the father, often interest of the children is not properly represented in such matter. In this matter the father happens to be a lawyer. He has shown smartness in this case by not pressing the original petition especially he knows that an interim order has been passed giving custody in his favour."

It ordered that the original petition would have to be considered, including the petition filed by the mother for return of the child.

It thereby directed the Family Court to appoint a counsel through District Legal Services Authority, Kozhikode for representing the child independently, before proceeding with the matter. It was further directed that a child psychologist also ought to be made available to assist the counsel. 

It thereby directed that the matter be heard afresh and decided within 3 months. 

Case Title: X v. Y