“Children are, by themselves, interesting. We (adults) always think that we are the ones who are teaching them. But in reality, it is they who teach us many things. In my experience, the most difficult of cases that I have handled are child custody cases,” Justice V. Ramasubramanian of the Madras High Court said on Wednesday.

Delivering a lecture on ‘Law of Adoption and the Rights of Children' at the Madurai Bench of Madras High Court Bar Association, the judge said that in every child custody case before him, his endeavour was to do justice not to the parents but only to the children as the latter might not be able to bear or even speak out against injustice done to them.

Recalling three interesting cases dealt by him, he said that a Standard VIII girl, daughter of a divorced couple, had once convinced him to enact a drama in the court hall “as if she would prefer to live with her father but I should forcibly pass an order handing over her custody to the mother. It was because the girl did not want to antagonize her father. During an enquiry in my chambers, she expressed her willingness to live with her mother but without earning the wrath of her father. So, when I passed the order in the open court, the father started cursing me and accusing me of doing injustice. I was not in a position to explain because only the girl and I were privy to the discussion we had in the chambers.”

“Luckily you (lawyers) people organised this lecture and so I am able to open up my heart, at least now,” the judge said amid peels of laughter. He, however, pointed out that the estranged couple's son, then studying in Standard Ten, was different from his sister as he was stubborn on living with his rich father and accused his poor mother of enacting dramas by weeping and wailing before judges.

The second case was related to a litigant who had originally filed a petition in the family court in Chennai seeking divorce from his wife. He had accused her of adultery and drug abuse. At the same time, the woman, who had the custody of their less than one-year-old girl-child, filed a divorce case in Madurai and obtained an ex-parte (without the appearance of the husband) decree.

“Within 35 days of obtaining the divorce decree, the woman married the other man with whom she was accused of indulging in adultery. Two years thereafter, she died and the child continued to be with the other man. In the meantime, the biological father kept on filing cases and knocking the doors of various courts to find the whereabouts of his daughter. When his case came up before me, I appointed an Advocate Commissioner to trace the child who was found in Bangalore. But putting me in a dilemma, the child refused to go with the biological father… I could not forcibly dislocate her because she is not a crop to pluck and plant somewhere else. So, on an experimental basis, I asked the biological father to take a house on rent in Bangalore.”

“She was allowed to continue in the same school where she studied and live with her biological father for a month. After that, the child herself came to me and said that she wanted to continue to live with her father. But earlier, during the course of the hearing of the case, the lawyer for the other man contended that the Madras High Court had no jurisdiction to decide the case as the child was living in Bangalore.”

“I overruled the objection by stating that the territorial jurisdiction prescribed under the Guardianship and Wards Act was different from my jurisdiction under the Letter Patents Act. Therefore, in such cases, a judge must rise above the law to do justice. One can never do justice by sticking to the law,” Mr. Justice Ramasubramanian added.

The third case, he referred to was the case filed by film actress Vanitha Vijayakumar whose nine-year-old son preferred to live with his biological father. “I sent him for psychiatric evaluation and the child psychiatrist came out with startling facts. She told me not to look at him as a child because he knew everything about good, bad and ugly even at an early age.”

“The psychiatrist also said that the boy was evaluating her than she evaluating him. Whenever she examined his father, the boy used to intervene and prevent him from speaking the truth,” the judge said and stated that it was not right on the part of the courts to mechanically hand over the custody of the child to one of the parents who turn out to be very indulgent.

He also impressed upon the need to dispense with terminology such as custody, visitation rights as had been done by the British Parliament in 1989 and replace them with refined language such as Residence Orders, Contact Orders and Shared Parenting. “We (adults) enjoy the company of children. But we never think whether the child is enjoying our company or not,” he added.

He pointed out that the American Academy of Child and Adolescent Psychiatry had published a summary of Practice Parameters for Child Custody Evaluation which include parents' work schedule, finances, style of parenting and discipline, their physical and mental health, sibling relationship, continuity and quality of relationship between the child and the parents as parameters.

The judge also quoted Khalil Gibran who said: “Your children are not your children. They are the sons and daughters of life's longing for itself. They come through you, not from you.”

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