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NAVIGATING THE INTERWEAVING LEGAL THREADS OF PARENTAL ALIENATION, BEST INTEREST OF THE CHILD AND PARENTAL RIGHTS: A LEGAL ANALYSIS OF CHILD CUSTODY LAWS IN INDIA
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NAVIGATING THE INTERWEAVING LEGAL THREADS OF PARENTAL ALIENATION,
BEST INTEREST OF THE CHILD AND PARENTAL RIGHTS: A LEGAL ANALYSIS OF CHILD
CUSTODY LAWS IN INDIA
“A
child cannot be tossed like a shuttle cock between the parents.”
-
Justice R.M. Lodha and Rohinton Nariman
ABSTRACT
After a marital
breakup, issue of child custody comes into light. In fact child custody battles
are the byproduct of any marital breakup. Both the parents begin asserting
their claims on their children as they are some objects. Parents are considered
to be protectors of children but when it comes to child custody cases, they
themselves are responsible for all the mental trauma, a child has to face as
both parents have conflicting rights which they want to exercise. Further in order to win these child custody
battles they resort to any means without even understanding the impact of these
tactics on the innocent and fragile mind of child. Many a times they start
brainwashing their child by instigating directly or inadvertently against the
other parent. Since State is considered to be the parens patriae of child, the
courts have been endowed with the responsibility of ensuring the welfare of the
children in such custody battles. It has been reiterated by the apex court of India
in a number of its judicial pronouncements that not the rights of parents but
the welfare of the child is of paramount consideration while deciding the issue
of child custody. The legislations pertaining to the custody and welfare of the
child along with judicial pronouncements have been discussed in this research
paper in order to understand the intersection of Parental Alienation, Best
interest of the child and the Parental rights.
Keywords: Child,
Parental Alienation, Custody, Parental rights, Best Interest of child, Welfare
of the child.
INTRODUCTION
Custody of the child
is the most crucial aspect of a breakdown of marriage. The person who suffers
the most is neither the father nor the mother when marriage breaks down. It is always
the child who is the worst sufferer. In
a custody battle between mother and the father, the loser is actually the child
as no matter what the child is going to lose one of his parents. The most
traumatizing situation for a child is perhaps seeing one’s parents getting
separated. Being the constant witness to fights and an emotional turmoil among
his or her parents is certainly an unfortunate circumstance for a child. As for
a child, both of the parents are dear to him or her, being away from one of
them can hamper his emotional state of mind severely. Thus, the child custody issues
revolve around the concept of parental alienation, best interest of the child
and the rights of parents which makes it quite complicated. No doubt time and
again the courts in India have emphasised on the welfare of the child being of
paramount consideration in such matters but because of the unique circumstances
of each case, the courts have faced the problem of how to interpret and decide
as to what amounts to welfare of the child. Further the parental alienation has
become a serious issue to be dealt with as many times under the influence of
one parent or the other and due to the psychological manipulation the child is
also not able to decide as to with whom he or she wants to live and this
further enhances the problem of courts to decide as to which parent should be
given the custody of the child and to whom mere visitation rights are to be
granted. Rightly stated, “To turn a child against a parent is to turn a child against
himself.”[3]
MEANING OF PARENTAL ALIENATION
A happy ending to a
marriage is what divorce aim for. When two people are divorced but have
children together, there is still a post-divorce parent-child relationship that
requires the parents to continue co-parenting after their split. Children who
are in good health have positive relationships with both of their parents and
want to spend time with them. Children from previous marriages fall into this
group for the most part. The circumstance where a child rejects a parent is at
the other extreme of this continuum and is often unpleasant, toxic, and
pathological. We meet the phenomenon called "parental alienation"
when the rejection is clear-cut, forceful, devoid of any ambiguity or guilt,
absolute, and unjustifiable.
Parental alienation refers to the psychological
manipulation of a child by words and deeds that make the child perceive one
parent negatively. It is essentially brainwashing the child, and it can occur
both intentionally and inadvertently. Legally, children must have a positive
relationship with both of their parents; in order to do so, each parent must
spend a substantial amount of quality time with the child. Regretfully, divorce
is typically a contentious process, and a lot of parents let their resentment
affect their kids. Alienation is the term used to describe when one parent
takes actions to isolate their child, instil fear in them, or make them furious
with the other parent.[4]
TYPES OF
PARENTAL ALIENATION
Mild Parental Alienation
Mild Parental Alienation means when
the child stays away from the estranged parent but they get along well when the
alienator is not present.[5]
Moderate Parental Alienation
While they do spend time together,
the child is bitter and fiercely opposes contact with the alienated parent.
This is known as Moderate Parental Alienation.[6]
Severe Parental Alienation
The child is adamant about staying
away from their estranged parent. To get away from the parent, they could hide
or flee. In these situations, the alienator is committed to destroying the bond
between the child and the other parent.[7]
PARENTAL ALIENATION SYNDROME (PAS)
PAS and parental alienation
are commonly misdiagnosed. The term "parental alienation syndrome"
was first used in 1985 and was written about extensively by American
psychiatrist Dr. Richard Gardner, who passed away in 2003. He defined the syndrome as, “A
childhood disorder that arises almost exclusively in the context of
child-custody disputes. It is a disorder in which children, programmed by the
allegedly “loved” parent, embark upon a campaign of denigration of the
allegedly “hated” parent. The children exhibit little if any ambivalence over
their hatred, which often spreads to the extended family of the allegedly
despised parent.”[8]
SIGNS
AND SYMPTOMS OF PAS
i) Unreasonable or illogical campaign to demonize
a devoted parent.
ii) Child's severe
dichotomization of one parent (black & white thinking).
iii) Demonization of all
the relatives and acquaintances of the targeted parent.
iv) Child's disrespectful
behaviour and mindset toward the parent in question.
v) Refusal to feel sorry for the
targeted parent or a lack of compassion for their suffering.
vi) When speaking to the
targeted parent, the child adopts the same tone as the narcissistic parent.[9]
INTERNATIONAL
PERSPECTIVE ON PARENTAL ALIENATION
Parental alienation has
become a global concern. Though there are only a few countries which have
enacted legislations thereby criminalising it but almost every country is
giving a thought to tackle this problem in order to save the innocent children.
A bill aimed at criminalizing parental alienation in family courts was signed
into law by Brazilian President Luiz Inacio Lula da Silva on August 26, 2010.[10]
Brazilian President Jair Bolsonaro signed legislation into effect on May 18,
2022, which modified the Child and Adolescent Statute of 1990 to provide
additional processes for the suspension of family power, as well as the Law of
2010 to prevent parental alienation against children.[11]
Parental alienation as not been specifically outlawed in South Africa. But when
it comes to issues of custody, visitation, and parental duties, the South
African legal system prioritizes the child's best interests. A legislative
foundation to shield kids from harm—including parental alienation—is provided
by the Children's Act of 2005.[12]
No doubt parental alienation has been declared illegal in many countries but as
of right now, parental alienation is not expressly prohibited under federal
law. Instead, civil family law actions are generally used to resolve the issue.
In these proceedings, judges have the jurisdiction to make decisions regarding
custody and visitation schedules that are in the best interests of the kid.
Nonetheless, it's critical to acknowledge that certain jurisdictions have addressed
parental alienation in their criminal justice systems. When deciding on custody
or visitation schedules, courts in these states are permitted to take parental
alienation into account through the enactment of legislation or the use of
particular legal rules. These laws offer a framework for handling parental
alienation within the framework of family law, without outright criminalizing
it.[13] States
are being urged to forbid any discussion of parental alienation in family
courts due to concerns about fabricated claims of parental alienation. It was
suggested that men use Parental Alienation as a legal ruse to disprove women's
claims of domestic abuse in the UN Special Rapporteur on Violence Against Women
and Girls (UNSRVAW) report, “Custody, Violence Against Women and Violence
Against Children.” During its 53rd session, the United Nations Human Rights
Council (UNHRC) rejected the measures that the Report recommended due to strong
opposition from scientists and victims who were impacted by the situation. The report
presented the
controversial narrative- “Parental Alienation was merely a legal contrivance by
men to counter women’s domestic abuse allegations.”[14]
PARENTAL ALIENATION AND CHILD CUSTODY
LAWS IN INDIA
No statutory provision in India explicitly talks about
Parental alienation. In fact there is no statutory recognition of the concept
of parental alienation. Not even a single statute mentions about parental
alienation. However the detailed provisions on custody and guardianship along
with various landmark judicial pronouncements have filled the gap to a great
extent.
Guardian And Wards Act, 1890[15]
The GWA[16]
is a nonreligious legal framework that governs guardianship and custody matters
for all children living in India, regardless of their faith. It gives the
District Courts the authority to name guardians for a minor's person or
property in cases when the natural or testamentary guardian under personal law
is unable to fulfil their legal obligations to them. The Act is a comprehensive
code that outlines the guardians' responsibilities and rights, the process for
removing and replacing them, and the consequences of their misbehaviour. It is
a general body of law that supports each religion's own rules pertaining to
guardianship matters. GWA empowers the court to designate a guardian for a
minor's person, property, or both, if the court is convinced that doing so is
essential for the minor's "welfare."[17]
Courts must consider the minor's or ward's best interests when choosing a
guardian for their person or property under the GWA. This is clear from
Sections 7[18] and 17[19]
of the act. However, Section 19(b) implies that the court cannot use its power
to name another person as the guardian unless it determines that the mother or
father is especially unsuited to serve in that capacity. Therefore, the
parent's right to serve as the minor's guardian must take precedence over the
court's ability to act in the minor's best interests.
Hindu Minority and
Guardianship Act, 1956[20]
There were no rules
pertaining to either child custody or guardianship in classical Hindu law.
Since Karta was in charge of all dependents' general care and property
management in the Joint Hindu Family, special legal regulations pertaining to
guardianship and custody were deemed unnecessary. In contemporary Hindu law,
the Hindu Minority and Guardianship Act, 1956 (HMGA) stipulates that a minor's
natural guardian is their father, followed by their mother. Ordinarily, the
mother will have custody of a child who has not completed the age of five.[21]
However, Section 13 provides that the minor's welfare is to be the paramount
consideration in determining the minor's guardianship.
Muslim Law
According to Islamic law,
the mother is granted custody of the child until the daughter enters puberty
and the son turns seven years old. However, the father is still considered the
child's natural guardian. Islamic law is the first to explicitly recognize the
mother's right to custody and to make a clear distinction between guardianship
and custody.[22]
According to the Hizanat notion, both during and after a marriage dissolves, a
mother is most qualified to be a child's guardian until a specific age. This is
a mother's right, and it cannot be taken away from her until it is determined
that having her custody would be detrimental to the child's welfare due to
misconduct or apostasy.[23]
JUDICIAL PERSPECTIVE ON PARENTAL
ALIENATION OR PAS
PAS was mentioned in 2006 for the first time in a
judgement[24] by the
Apex Court in India. In this instance, the daughter indicated that she
wanted to live with her father after only a little period of time. According to
the mother, this was PAS and the father was attempting to poison their
daughter. The mother believed this since, although living with her for eight
years, the daughter had chosen the father over her. The father won the case,
according to the court. Although acknowledging PAS in this case, the court made
its decision solely based on the "best interests of the child" theory
without delving further into it. As per the "best interests"
doctrine, the court renders a decision based on what's in the best interest of
the child given the circumstances.
In another landmark case[25],
the "best interests of the child" theory and PAS were explored
together. In this particular custody dispute, the father was content to have
visitation rights with the mother in the event that he was granted custody, but
the mother insisted on having no access to their children at all. In
determining custody, the court considered two factors. First, it argued that
the father was in a better position to care for the children emotionally and
financially based on the "best interests of the child" tenet. The
court also took into account the possibility of PAS if one parent is completely
denied access to the children. The children appeared to be a "little
withdrawn," which led the court to conclude that such symptoms were already
evident. In this instance, custody to the mother would have led to this kind of
situation. The father was granted custody as a result. However, this case makes
it abundantly evident that the court misunderstood what PAS meant. It has
labelled possible estrangement as PAS because it misinterpreted it. Despite the
fact that this ruling employs an entirely different interpretation of PAS, it
gives PAS initial legitimacy. This legitimacy is detrimental because it raises
the chance that courts would read the ruling incorrectly in the future and hold
that the PAS (in its original form) is enforceable under Indian law.
In 2017, the Apex court[26]
for the first time legally recognised the phenomenon of PAS in India and
discussed its destructive psychological effects on child and stated, “First, it
puts the child squarely in the middle of a contest of loyalty, a contest which
cannot possibly be won. The child is asked to choose who is the preferred
parent. No matter whatever is the choice, the child is very likely to end up
feeling painfully guilty and confused. This is because in the overwhelming
majority of cases, what the child wants and needs is to continue a relationship
with each parent, as independent as possible from their own conflicts. Second,
the child is required to make a shift in assessing reality. One parent is
presented as being totally to blame for all problems, and as someone who is
devoid of any positive characteristics. Both of these assertions represent one
parent's distortions of reality.”[27]
The Madras HC[28]
held that a child becomes antagonistic towards himself when they turn against
their parents. Parental alienation is inhumane and dangerous for children, who
depend on their parents for support throughout their lives, or at least until
they reach adulthood." Additionally, it was noted that until a youngster
learns hatred from someone they believe in, hatred is not a feeling that a
child naturally feels toward their parents. Parental alienation is when a
parent pollutes the innocent child's fragile mind by depicting their mother or
father as a villain, which will have a lasting effect on the youngster.
The Delhi HC[29]
granted divorce stating that the Parental alienation from father who has never
demonstrated any negligence is a severe form of mental cruelty. The youngster
has been utilized as a weapon against the parent in addition to being
completely isolated. Witnessing their child slip away and become completely
anti-father is the worst thing that can happen to a parent.[30]
The Supreme Court in a
landmark case[31] held
that co-parenting is essential for the minor's healthy development and
personality development, thus one parent should not shield him from the other's
touch and influence. During the formative and impressionable years of life, it
is crucial that the kid receives the care and direction of both parents. The
verdict weighs in favour of both parents' roles being equally important in
raising their children and preparing them for adulthood. The Court noted that
the non-custodian parent's visiting rights will allow the child and the parent
to maintain communication and to have happy, educational, and joyful moments.
The Honourable Supreme
Court in a landmark judicial pronouncement[32]
decided that children are more than just toys or possessions for their parents.
In today's altered social conditions, parents' absolute rights over their
children's lives and destinies must give way to concerns about their welfare as
human beings in order for them to develop normally balanced lives and become
valuable members of society. In the event of a dispute between a mother and
father, the guardianship court is expected to strike a fair and appropriate
balance between the needs of the minor children's welfare and the rights of
their respective parents over them.
The Apex court expressed a
deep concern in a case[33] and
observed that it is heartbreaking to witness how the innocent child is
ultimately the victim of the legal and psychological struggle between the
parents during divorce and custody disputes, which can turn into a maze. It is
possible that the parents' interests, not the child's, are reflected in the
eventful custody arrangement. The child's future is at stake in a custody
battle, yet typically the child is not treated as a real participant in the
proceedings. While the kid's interests must always come first according to the
best-interests concept, in most cases the child neither defines nor is
represented in the traditional sense.
CONCLUSION
The delicate balance
between parental rights and the best interest of the child is a crucial pillar
in the complex field of family law. A troubling condition known as parental
alienation occurs when one parent purposefully damages the child's bond with
the other. The child's emotional health is put in danger by this subtle
manipulation, which can leave lasting damage that may last into adulthood.
Courts, charged with the grave responsibility of deciding cases involving
custody and visitation, struggle with this complex issue. They have two
responsibilities: protecting parents' constitutional rights and putting the
stability, safety, and happiness of the kid first. The balance must be struck
so that parental autonomy is not overemphasized at the price of the wellbeing
of the child. Judges perform a complex ballet with their gavels, guided by a
deep understanding of human psychology, expert testimony, and legal concepts.
The youngster, the silent hero, deserves a future free from the conflict
between their feuding parents. As a result, the legal system attempts to
preserve both the child's pure heart and the delicate links of parenthood by weaving
together the threads of justice, compassion, and wisdom. Even though Parental
Alienation Syndrome (PAS) isn't specifically defined in Indian law, it has been
acknowledged by judges' rulings. The toxic alliance between a narcissistic
parent and their kids against the targeted, non-abusive, non-narcissistic
parent gives rise to this syndrome. Under the narcissistic parent's
manipulation, the innocent or targeted parent experiences animosity and
rejection from their own children in this upsetting circumstance. In the
perverse world of the narcissist, the children's mental health is turned into a
weapon. The breakdown of the child's emotional and physical bond with the
targeted parent is one of the many ways that PAS presents itself. The legal
system finds it difficult to efficiently handle these problems due to its
backlog of cases. Due to the idea of not upsetting established arrangements,
custodial parents frequently keep custody, even if they gained it unlawfully.
Another frequent practice is protracted court battles against usurping parents,
which end with a court interview for the child. Regretfully, the youngster
frequently chooses the usurper parent because of the custodial parent's
divisive behavior. This condition is consistent with Parental Alienation
Syndrome, as defined by psychologists. Finally, even though PAS is not
expressly recognized by law, Indian courts are already recognizing its
significance. Legal practitioners must negotiate this difficult terrain while
attempting to safeguard the child's mental well-being and parental rights,
guided by jurisprudence. Let us make sure that no child is harmed as a
bystander in the conflicts between divorcing parents as we weave the tapestry
of justice, compassion, and wisdom.
[1] Phd. Scholar, Department Of Laws,
Guru Nanak Dev University, Amritsar,
Punjab.
[2] Assistant Professor, Department Of
Laws, Maharishi Markandeshwar (Deemed To be University), Mullana, Ambala.
[3] X v X
(2022) SCC OnLine Mad 4609, decided on 16.09.2022.
[4] Cydni,
‘Parental Alienation - Definition, Examples, Cases, Processes’ (Legal
Dictionary, 8 January 2017) <https://legaldictionary.net/parental-alienation> accessed 20 March 2024.
[5] ‘Custody
Special Circumstances: Supervised or Interstate Visits, etc.’ (Custody X
Change: The Trusted Software for Parenting Schedules) <www.custodyxchange.com/topics/custody/special-circumstances/parental-alienation.ph> accessed 20 March 2024.
[6] Ibid.
[7] Ibid.
[8] Ken
Lewis, ‘Parental Alienation Can Be Emotional Child Abuse’ (NCSC) <www.ncsc.org/__data/assets/pdf_file/0014/42152/parental_alienation_Lewis.pdf> accessed 20 March 2024.
[9] Traci
Pedersen, ‘Narcissistic Parental Alienation: Signs, Causes, and Tips’ (Psych
Central, 22 June 2016) <https://psychcentral.com/disorders/children-with-narcissistic-parental-alienation-syndrome#warning-signs> accessed 20 March 2024.
[10] Bootie,
‘Brazil: Parental Alienation defined in Law -’ (Lawyer in Brazil, 2
September 2010) <www.lawyerinbrazil.com/brazil-parental-alienation/> accessed 15 March 2024.
[11] ‘Brazil:
New Law Modifies Measures to Be Taken Against Parental Alienation’ (The
Library of Congress) <www.loc.gov/item/global-legal-monitor/2022-07-04/brazil-new-law-modifies-measures-to-be-taken-against-parental-alienation/> accessed 22 March 2024.
[12] Heidi
Barter, ‘Parental Alienation and Laws Applicable in South Africa: A
Comprehensive Guide - Law Firm - Barter McKellar’ (Barter McKellar) <www.bartermckellar.law/family-law-explained/parental-alienation-and-laws-applicable-in-south-africa-a-comprehensive-guide> accessed 15 March 2024.
[13] ‘Understanding
the Criminalization of Parental Alienation in the United States: State-by-State
Analysis ? Family Law - Rey
Abogado’ (King Lawyer) <https://reyabogado.com/us/in-what-states-is-parental-alienation-a-crime/#:~:text=Currently,%20no%20federal%20law%20specifically%20criminalizes%20parental%20alienation.,based%20on%20the%20best%20interests%20of%20the%20child.> accessed 17March 2024.
[14] Terrence
White, ‘Parental alienation and the United Nations: is gender politics getting
in the way of children’s wellbeing? — The Centre for Male Psychology’ (The
Centre for Male Psychology) <www.centreformalepsychology.com/male-psychology-magazine-listings/parental-alienation-and-the-united-nations-is-gender-politics-getting-in-the-way-of-childrens-wellbeing> accessed 20 March 2024.
[15] Act No. 8 of 1890.
[16] Guardian and Wards Act 1890.
[17] Guardian and Wards Act 1890, s 7.
[18] Ibid.
[19] Guardian and Wards Act 1890, s 17.
[20] Act No. 32 of 1956.
[21] Hindu Minority and Guardianship
Act 1956, s 6.
[22] Paras
Diwan, Law of Adoption, Minority, Guardianship And Custody (Universal
Law Publishing Co. 2012) 16.
[23] ibid 17.
[24] Sheila
B. Das v P.R. Sugasree (2006) 3 SCC 62.
[25] J.
Selvan v N. Punidha (2007) 4 CTC 566.
[26] Vivek Singh v Romani Singh
AIR (2017) SC 929.
[27] ibid.
[28] X v X
(2022) SCC OnLine Mad 4609, decided on 16.09.2022.
[29] ABC v XYZ (2023) SCC OnLine Del 6099, decided on 13-09-2023.
[30] ‘Parental
Alienation from father who never showed any neglect is an extreme act of mental
cruelty: Delhi High Court upholds divorce’ (SCC Times, 1 October 2023)
<www.scconline.com/blog/post/2023/10/01/delhi-hc-alienation-of-the-child-from-his-father-is-an-extreme-act-of-mental-cruelty-legal-news/> accessed 30 March 2024.
[31] Ruchi Majoo v
Sanjeev Majoo (2011) 6
SCC 479,
[33] Lahari Sakhamuri v Sobhan Kodali (2019) 7 SCC 311.
Article Information
NAVIGATING THE INTERWEAVING LEGAL THREADS OF PARENTAL ALIENATION, BEST INTEREST OF THE CHILD AND PARENTAL RIGHTS: A LEGAL ANALYSIS OF CHILD CUSTODY LAWS IN INDIA
Authors: KARISHMA JAIN, AANCHAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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