A proactive step need to be taken to focus on child rights, specifically in cases of parental conflict, the Supreme Court has highlighted.
The rights of children caught in the middle of an ugly divorce or a custody battle between parents need specific articulation.
A quagmire
Divorce and custody battles are a quagmire and it is heart-wrenching to see an innocent child ultimately suffer for the legal and psychological war waged between the parents, the Supreme Court has observed.
A Bench of Justices A.M. Khanwilkar and Ajay Rastogi expressed “deepest concerns” about the plight of children caught in the emotional roller-coaster of their parents’ divorce and custody battles.
The case in question concerned two U.S.-based children whose mother brought them here and filed a custody case against the husband.
Psychological harm
Justice Rastogi, who wrote the judgment, said the courts and judges could be able to resolve the legal problems of the parents, grant them divorce and send them on their separate ways. But what would become of the psychological harm caused to child who has witnessed the ugliness between the parents
The child is unwittingly at the centre of the custody battle, but is yet not a true participant in the process, Justice Rastogi observed.
Everybody is working for the “best interests” of the child, but they seldom understand what they are in fact. The judge paints the portrait of the child’s helplessness. “While the ‘best-interests’ principle requires that the primary focus be on the interests of the child, the child ordinarily does not define those interests himself or does he have representation in the ordinary sense,” Justice Rastogi wrote.
“The child’s psychological balance is deeply affected through the marital disruption,” the court said.
“The judicial resolution of a custody dispute may permanently affect or even end the parties’ legal relationship but the social and psychological relationship will usually continue. It seems appropriate that a negotiated resolution between the parents is preferable from the child’s perspective for several reasons,” Justice Rastogi observed.
Hence, for the sake of a child’s future relationship with each of his parents, a negotiated settlement is much better than an order imposed by a court after adversarial proceedings.
