Denying The Child, The Right To Affection Of Both Parents

Coverage of this Article

KEY TAKEAWAYS

-Parental Alienation Syndrome is not legally recognized in India.It is used as an argument in child custody battles to claim that the child is biased against one of the parents as a result of this syndrome.

INTRODUCTION

-Parental Alienation Syndrome (PAS) is a term used to describe when one parent acts in a way that undermines and damages the other parent's relationship with a child.

PAS constituting mental cruelty

-The Kerala High Court on 18th May 2020 ruled that any action performed by one parent with the intent of denying the child's love and affection for the other parent by alienating the child from him/her constitutes mental cruelty.

Evidentiary Value of PAS

-India lacks specifications for scientific evidence admissibility. Expert opinions are addressed in Section 45 of the Indian Evidence Act of 1872. It does not, however, establish any criteria for expert testimony admissibility.

PAS in the Indian Courts

-The Parental Alienation Syndrome has taken on a slightly different meaning in Indian courts. The cases that have been linked to the syndrome have not been linked to allegations of sexual abuse.

Fundamental problems with of PAS in the Indian courts

-The courts have not grasped the syndrome in its entirety. At times, they have referred to simple alienation as PAS. In some cases, one parent poisoning a child against the other parent is also referred to as PAS.

CONCLUSION

-Parental Alienation Syndrome has the potential to become an important debate in India today, especially due to the recognition given to it by the Kerala High court recently in a case wherein the court stated that parents have a right to receive the love and affection of a child and denying it is a form of mental cruelty.

KEY TAKEAWAYS

• Parental Alienation Syndrome is not legally recognized in India.It is used as an argument in child custody battles to claim that the child is biased against one of the parents as a result of this syndrome.
• The Hindu Minority and Guardianship Act of 1956, which defines guardianship for the majority of India's population, empowers courts to make custody decisions while keeping the child's welfare as the primary consideration.
• The Kerala High Court on 18th May 2020 ruled that any action performed by one parent with the intent of denying the child's love and affection for the other parent by alienating the child from him/her constitutes mental cruelty.
• India lacks specifications for scientific evidence admissibility. Expert opinions are addressed in Section 45 of the Indian Evidence Act of 1872. It does not, however, establish any criteria for expert testimony admissibility.
• The courts have not grasped the syndrome in its entirety. Due to the broad definition of PAS, even legitimate feelings of alienation or domestic violence could be misconstrued as PAS, posing a problem for the child.
• The uncertainty caused by COVID-19 is likely to increase this bunch of behaviors.A good way to deal with this issue is for family courts to expedite such cases.

INTRODUCTION

Parental Alienation Syndrome (PAS) is a term used to describe when one parent acts in a way that undermines and damages the other parent's relationship with a child. It is used as an argument in child custody battles to claim that the child is biased against one of the parents as a result of this syndrome. Initially, it was created as an explanation for false sexual abuse allegations leveled by a child against a parent. However, it is now being used in simple custody cases where the child does not want to live with a parent, particularly in India.

Parental Alienation Syndrome is not legally recognized in India. The Supreme Court of India recognized the concept of Parental Alienation Syndrome in 2017. There is almost no mechanism in place to address the issue, with family courts almost rendered ineffective due to the high volume of cases. Cases of children being forcibly removed from the parent designated as the legal custodian are routinely heard in family courts. More often than not, the mother is on the receiving end, and as family court proceedings drag on for years, the father has ample opportunity to alienate the child. When the court finally decides to follow the wishes of the child, the father usually gets custody because the child has grown emotionally dependent on him. The Hindu Minority and Guardianship Act of 1956, which defines guardianship for the majority of India's population, empowers courts to make custody decisions while keeping the child's welfare as the primary consideration.

In February 2017, the Supreme Court for perhaps the first time explicitly recognized the concept of Parental Alienation Syndrome. In this case, an 8-year-old girl was forcibly removed from her mother when she was only 21 months old. After several rounds of litigation, the matter reached the Supreme Court when the mother filed contempt proceedings against her ex-husband for failing to comply with court orders to return the child to her. But by the time the Supreme Court met with the child in 2016, she was strongly in favor of her father.

According to SudhaRamalingam, a family law expert, almost every divorce involving a couple with children involves the issue of alienation.

PAS constituting mental cruelty

The Kerala High Court on 18th May 2020 ruled that any action performed by one parent with the intent of denying the child's love and affection for the other parent by alienating the child from him/her constitutes mental cruelty.

The Court emphasized the fact of parental alienation as an additional factor and defined parental alienation as a process in which a child becomes estranged from a parent as a result of another parent's psychological manipulation. Finding relevance in the appellant's argument, the court emphasized that physical violence is not required to constitute cruelty.

The court found that the petitioner provided evidence that he and his parents were completely isolated from the child. The petitioner's wife had violated every duty she owed as the custodial parent to instil in the child's love and respect for the non-custodial parent. The court further stated that physical violence is not required to constitute cruelty. It was also agreed that mere bickering, coldness, the austerity of temper, petulance of manners, rudeness of language, lack of affection, trivial irritations, quarrels, or normal wear and tear of married life that occurs on a daily life do not constitute cruelty.

To explain mental cruelty, the Court established the following principles –

• The alleged behavior does not have to be so grave and severe as to make cohabitation virtually unbearable, or of such a nature as to endanger life, limb, or health.
• There must be something more serious than "normal wear and tear of married life."
• The conduct and behavior of one spouse should be such that the latter has a reasonable fear that it is not safe for him or her to continue the marital relationship.
• One spouse's deep anguish, disappointment, frustration, and embarrassment caused by the other spouse's sustained course of abusive and humiliating behavior may sometimes lead to mental cruelty.
• Mental cruelty can also include verbal abuses and insults delivered in filthy and abusive language, causing the other party's mental peace to be disrupted regularly. Malevolent intent is not required for cruelty if the act complained of could otherwise be considered cruel in human affairs.

What are the factors for mental cruelty which is a immediate cause for divorce?

Evidentiary Value of PAS

India lacks specifications for scientific evidence admissibility. Expert opinions are addressed in Section 45 of the Indian Evidence Act of 1872. It does not, however, establish any criteria for expert testimony admissibility. The Supreme Court ruled in Malay Kumar Ganguly v Sukumar Mukherjee that expert testimony is advisory only. The expert witness is expected to present all relevant facts that led him to a specific conclusion. The expert must elaborate on the technical aspects of the question at hand. Following that, it is up to the court to reach a decision.

However, in most cases, such evidence is admissible if it is deemed relevant, even if it lacks substantiation. This is extremely problematic because the court's decision to accept or reject an opinion is entirely at the discretion of the court, with no guidelines for uniformity in this regard. As a result, PAS has found mention in several Indian court decisions. This demonstrates how a bogus syndrome like the PAS can gain legitimacy in India through judicial pronouncements. As a result, the administration of justice may be hampered.

PAS in the Indian Courts

The Parental Alienation Syndrome has taken on a slightly different meaning in Indian courts. The cases that have been linked to the syndrome have not been linked to allegations of sexual abuse. PAS has been mentioned mostly in custody cases where the child has shown disdain for one of the parents.

In Sheila B. Das v P.R. Sugasree , After only a short time with her father, the daughter expressed her desire to live with him permanently. The mother claimed that the father was attempting to poison their daughter with PAS. The mother felt this way because her daughter, despite living with her for eight years, had chosen the father over her. The father won the case. While acknowledging PAS, the court did not discuss it and instead decided solely on the basis of the “best interests of the child” doctrine. The “best interests” doctrine requires the court to make a decision based on what is best for the child in the circumstances.

PAS was discussed in conjunction with the doctrine of "best interests of the child" in the case of J. Selvan v N. Punidha . In this case, the mother did not want the father to have any access to their children, whereas the father was fine with visitation rights to the mother if custody was granted to him. The custody decision was made by the court based on two factors. One, it relied on the “best interests of the child” doctrine to argue that the father was in a better financial and emotional position to care for the children. Furthermore, the court considered the possibility of PAS if one of the parents was denied complete access to the children. Custody to the mother would have resulted in such a scenario in this case. As a result, the father was granted custody.

Fundamental problems with of PAS in the Indian courts

1. The courts have not grasped the syndrome in its entirety. At times, they have referred to simple alienation as PAS. In some cases, one parent poisoning a child against the other parent is also referred to as PAS. As a result, the courts have unintentionally broadened the scope of the syndrome. This has given the syndrome a lot of legitimacy, though it has been misinterpreted to mean something else. As a result, it opens the door to the future use of a syndrome for which there is no empirical evidence that it exists. This has the potential to be extremely damaging to India's justice delivery system.

2. The increased use of PAS may blind judges to cases where children have legitimate reasons to dislike a parent. Even today, domestic violence is common in India. A child may feel threatened by a parent as a result of such violence, which is why she or he feels alienated. Such violence could also be emotional, which would almost certainly have alienated the child from that parent. However, due to the broad definition of PAS, even legitimate feelings of alienation or domestic violence could be misconstrued as PAS, posing a problem for the child.

3. The use of such terms legitimizes the courts' use of illogical theories. This is especially problematic for India because, unlike the United States, we do not have any standards for the admissibility of scientific evidence. Such misapplication of medical and psychological concepts can lead to the prolongation of trials, which is synonymous with the denial of justice at the appropriate time. All of this jeopardizes the best interests of the children at the centre of a custody battle.

CONCLUSION

Parental Alienation Syndrome has the potential to become an important debate in India today, especially due to the recognition given to it by the Kerala High court recently in a case wherein the court stated that parents have a right to receive the love and affection of a child and denying it is a form of mental cruelty.

A good way to deal with this issue is for family courts to expedite such cases. The more time the child spends with one parent; the more likely alienation will occur. The uncertainty caused by COVID-19 is likely to increase this bunch of behaviors. While this term is considered controversial, and the Court is hesitant to label certain behavior as such, it is clear that behavior that falls under this definition is becoming more and more common, especially when there are parenting proceedings pending.