Introduction

I have made it a personal quest to discover and learn more about the impact of mental health on the Indian legal system. Talking about mental health and how it affects not only individuals’ actions but by default their actions and therefore, the society at large. Laws are in place for otherwise, there would be total anarchy everywhere. Protection of mental health requires legal protection, human as backbone of society need legal security for their mental health especially when talking about needing help regarding mental health is considered as taboo or easily dismissed by so many even today. Progressive recognition of mental health issues deserve our attention and recognition so it becomes normalized.

It is said that habits are easier to develop if implemented in childhood. Indeed true, childhood years and upbringing can have a huge role in the way we develop as fully grown adults. Foundation of sound mental health also develop during these years and a disruption can lead to life-long implications. Children watch and learn and therefore the importance of parental figures is non-negotiable. When parents push children towards toxic and negative traits, are they punished? Does law care for a child’s mental health? This article introduces the concept of paternal Alienation Syndrome recognized by the court in Vivek Singh v. Romani Singh[1].

What is Parental Alienation syndrome or PAS?

First coined by American psychiatrist Richard Alan Gardner in 1985 defined it as a disorder whose “primary manifestation is the child’s campaign of denigration against the parent, a campaign that has no justification. The disorder results from the combination of indoctrinations by the alienating parent and the child’s own contribution to the vilification of the alienated parent.” In other words, one parent ‘brainwashes’ the child into hating one parent resulting in rejection and hostility of the child towards the targeted parent, destroying their relationship. This is commonly and routinely seen in children involved in custody battles.

Vivek Singh v. Romani Singh- Facts

In the case of Vivek Singh v. Romani Singh, the appellant Vivek Singh was married to Romani Singh, the respondent. Romani Singh had left her marital home following a fight. However she was unable to her two year old daughter because the appellant prohibited her from taking the child away. Accordingly, Romani filed a petition under sections 25, 10 and 12 of the Guardians and Wards Act for custody of her minor daughter before the principal judge of the Family Court. The judge found that Vivek Singh was a capable and fit guardian of the child and therefore deserved to retain custody over her, dismissing the petition filed by Romani Singh. On Appeal to the High Court, which it appropriate to hand over the custody to the mother, Romani Singh based on the opinion that being a child of less than five years of age, she was better off being taken care of by her mother who is more fit to care for her. Vivek Singh was granted visitor rights by the court. Thereafter, Vivek Singh aggrieved by the HC decision appealed to the Supreme Court.

Arguments from both sides

Counsel for the petitioner argued that the children suffer from emotional turmoil when parents go through separation, which could have long lasting impact in their life. It is important to decide custody issues keeping the best interest of the child in mind. Reported that the child was living with her father from the beginning and that she was happy and healthy in his care. It was thus reported that the child’s wish was to stay with her father and was not interested in changing her present environment. Forcefully putting her in a new environment could affect the child negatively. The sensitive age of the child was highlighted and stressed that parental influence could affect her physical and mental growth immensely. Lastly, it was also argued that it is in public interest that children’s optimal growth is ensured and protected as they are the future of the nation.

Rebutting the appellant’s case, the respondent argued that the baby girl was forcibly separated from the mother and that before the respondent had to leave the matrimonial home, the child was in primary care of Romani. On being forced to leave her daughter behind, she immediately filed for seeking custody of her child, making her intentions clear that she never wanted to leave her child behind but it was her misfortune that she had to. It was not some sort of revenge tactic against her estranged husband. Additionally, it was argued that from a tender age she has only seen her father and therefore it is obvious that she would want to remain in his care, but it cannot be denied that a mother’s care and guidance is absolutely essential and a child who has never experience her mother’s care doesn’t know any better. Therefore, the mother deserved the custody of the child given the circumstances.

Decision

The SC while arriving at a decision took into consideration the judgement of the High Court which took note of the behavior and quick filing of custody petition and its appeals by the respondent mother, showcasing her love and dedication towards her daughter which was evidence of against the claim of the appellant that the respondent had abandoned the child. The court also noted that appellant had also showed love and care for his daughter through his efforts during the court proceedings and therefore it could not be said that the appellant has not cared for the child. But, the appellant is an army officer and in the course of his service, he would be expected to be away from the child and his home in non-family stations and it will be difficult for him to keep his daughter with him. Grandparents of the appellant can indeed look after the child in his absence as they were doing already doing but when a mother is present and ready to take all responsibilities of the child, it would not be right to deprive her of her motherhood rights. Grandparents’ old age and the tender age of the child has to be taken into account. Further, the court went on to state that for a child to take a decision with regards to which parent she prefers staying with, she has to be given a chance to have regular contact with both the parents, away from any sort of hostility. Court cannot turn blind eye to the animosity between the two parties going through separation which would have had an obvious impact on the child who has primarily remained in the custody of her father and thus possibly only knows about one side of the story, who’s ‘right’ and who’s not. It is highly possible that during this bitter phase, the appellant father has hardly given any positive perception of the respondent to the child and therefore, the child’s diminishing affection towards her mother cannot be considered as the child’s independent wish to prefer her father more. Talking about the Parental Alienation Syndrome, the court discussed the psychological effects in had on a child:

• The child is put in the middle of a loyalty contest about their preferred parent which puts the unfair pressure on the child, feeling guilty and confused. A child’s interest is to continue to be on good term with both parents and therefore a loyalty contest is a contest which cannot be possibly won.
• Secondly, the parent in whose custody the child remains in more often than not always exposed to the negative side of the other parent, devoid of any positive characteristics. Thereby distorting reality.

Based on these observations, the court deemed it absolutely necessary for the child in question to spend time with her mother aiding to this observation is the vast body of literature which supports a child’s bond with their mother and when a mother is substituted, they frequently show signs of distress. Not giving much importance to the HC observation wherein it was held that maternal custody is better for child welfare, the court said that it is a rebuttable claim. In the current case, it could very well be shown that the father is better suited to have custody but that is only possible when the child has had a sense of care given by both her parents and is able to form an opinion of her own. Thereby giving custody to the respondent mother for at least a year and not merely visitation rights, following an option to request for variation of the order in the future.

Conclusion

We call a person who is easily influenced by other people’s opinion as a gullible person. Indeed we call can be gullible sometimes as various instances of our lives due to various reasons, not matter how prudent we are or how logical we consider ourselves to be. Children are vulnerable, in matters of custody, which drastically every aspect of a child’s life, the court need to be fiercely protective. The Child Rights Forum has filed a writ petition in the Supreme Court for declaration of parental alienation as emotional abuse and violative of article 21 of the Indian constitution. It is argued that the current law incentivizes parents to play ‘dirty’ because it only grants custody rights to one parent giving chances of very limited visitation rights to the other parent, essentially pitting them both to fight for the child. A Bombay judge sharing her experience with custody cases, stated that more than 80% of the times the children are tutored before their custody interview[2]. Another factor to be considered in such cases it is not just the child but often an innocent parent who is at risk of possible never being able to seeing or being involved in their child right again. Differences and inability to live in harmony with a partner should not have to result in the loss of their right to be involved in their child’s life whom they love and adore. There is a need for more precedents recognizing and upholding the need to take into the psyche of the child in custody matter, without being insensitively dismissive about it.

[1] 4 SCC 573

[2] Ashish Joshi, ‘paternal alienation India joins family courts around the world to fight child emotional abuse’ (Legalearonline, 12 November 2020) https://www.legaleraonline.com/within-the-circle/parental-alienation-india-joins-family-courts-around-the-world-to-fight-child-emotional-abuse-688254

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