Courts Must Endeavour To Circumvent Ill Effects Of 'Parental Alienation Syndrome' While Deciding Custody Cases: Bombay HC
The Bombay High Court has observed that the Courts must endeavour to circumvent the ill effects of the 'Parental Alienation Syndrome' while deciding custody cases.
In that context, the Bench of Justice AS Gadkari and Justice Shaym C Chandak observed that, "Considering the level of differences to which the parties have reached, if return of child ‘N’ to the Netherlands is declined, then there is possibility of polluting the mind and thoughts of child ‘N’ about the Petitioner to such an extent that, at one point of time she will think that her own mother is only responsible for deserting her and depriving her the mother’s love, affection, care and proper upbringing. This is doctrine of ‘Parental Alienation Syndrome’ i.e. the efforts made by one parent to get the child to give up his/her own positive perceptions of the other parent and get him/her to agree with their own viewpoint."
It was further observed that, "It has two psychological destructive effects: (1) it puts the child in the middle of a loyalty contest, which cannot possibly won by any parent, and (2) it makes the child to assess the reality, thereby requiring to blame either parent who is supposedly deprived of positive traits."
In light of the same, it was held that, "the intent of the Court should be to circumvent such ill effects. In this background and considering the observations...of this Judgment, it is necessary to avoid the element of ‘Parental Alienation Syndrome’"
Counsel Anil Malhotra, along with others, appeared for the petitioner, while APP SV Gavand, along with others, appeared for the respondents.
In this case, a writ petition was filed on behalf of Ms. 'N,' the daughter of the petitioner. The petitioner sought the issuance of a writ of habeas corpus to produce the minor child 'N,' who was alleged to be in the illegal custody of the child's father The Petitioner requested custody of 'child N' and appropriate directions for her return to the Netherlands.
The Court observed that, "the sudden disconnect of child ‘N’ from her native; the Netherlands, is unjustifiable because she is a Dutch National. She was less than five years of age at that time, as conceded. Her main residence was with the Petitioner and she was studying in school there. The Petitioner is able to provide necessary conducive atmosphere in the Netherlands for proper care and upbringing of child ‘N’. This is assured by the Petitioner’s love, affection, caring nature towards child ‘N’, and capacity to provide adequate financial support and spacious home to her. Even though the Petitioner is working, she is able to devote sufficient time to manage schooling, studies and all other needs of child ‘N’. The Petitioner is also capable to instill moral and ethical values in child ‘N’. For all this, she has additional support of her parents. Being a Dutch National, eventually child ‘N’ will get the benefits available to the Domicile of the Netherlands. The above, we are sure, will be certainly in the best interest and welfare of child ‘N’."
It was further observed that the father had unnecessarily flouted the orders of the foreign Court and High Court, and his conduct deprived the biological mother of her natural love and affection towards the child.
Subsequently, it was held that it was in the best interest and welfare of the child to stay with the petitioner-mother in the Netherlands. With that background, it was also observed that, "child separated from one parent in custodial controversy faces adverse psychological impact. To minimize such impact, Courts should afford sufficient visitation rights to parent not given child’s custody so that the child may not lose social, physical and psychological contact which her/him. The parent denied the child’s custody should also be able to contact and talk to child as often as possible. Video calling is best system of contact, especially where both parents live in different States or countries. For this purpose, the parents should reach an arrangement so that the child can live in an environment, reasonably conducive to her/his development."
In light of the same, the Court granted permission to take the child with her to the Netherlands, and held that the father is entitled to interact with the child as may be mutually decided between the parties.
Appearances:
Petitioner: Counsels Anil Malhotra, Angha Nimbkar, Shreya Shrivastav, Gulistan Dubash, Durgesh Jaiswal
Respondents: APP SV Gavand, Counsels Mihir Desai, Navin P Sachanadani
Cause Title: X vs The State of Maharashtra & Ors.
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