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Jurisdiction for child custody is exercised by all courts in all countries primarily for and on account of the child, even though it would be upon the application of the spouses. What is enshrined in our legal system is the ‘welfare’ of the child where the child’s needs are placed above those of its parents. Earlier, only the judge assumed the role of a guardian to ascertain the interest and welfare of the child. Later the courts partnered with social workers who evaluated situations and offered opinions on what would be the child’s welfare. This jurisdiction finds its roots in the precedential law in India and, much later, in the statute relating to children in the UK.
The jurisdiction in respect of child custody throws up a host of cases demonstrating the depths of viciousness as also acts of humanity. Though the estranged parties in a marital relationship may both be good, they may not be ‘good’ with each other. They both care for their child though not for one another. They would be divided in matrimony but should be united in parenting.
In the matrimonial jurisdiction of the Bombay City Civil and Sessions Court (as it was then), a gross case of a mother being deprived of the custody of her child required me to interview the child. The child was taken from a Bombay school to Gujarat and kept in a boarding school by the estranged father away from his mother and without her knowledge and consent. The mother was devastated and applied for custody.
I knew that the child would surely be tutored to state that he did not desire to go to the mother. I asked the child various questions about the boarding school to ascertain how well he was placed there. His answers indicated that the students slept on bunker beds and had a chest of three drawers for their books, clothes and shoes and food which were stored together. The school was distinctly not an enviable surrounding for his upbringing. It could not compare to the love and care of a mother even in a humbler environment.

 

 

 

 

 

In the court on that day itself I handed over custody of the child to the mother from whose lawful custody the child had been kidnapped and sent far away. The father was the first legal and natural guardian of the child. The mother was the lawful guardian in his absence (as later held by the Supreme Court). I got the order executed in my court itself. It was one of the few orders which would not be only a ‘paper order.’ The advocate shouted that the child had said that he did not want to go to the mother. But I had not even asked the child such a question; I knew that the child was incapable of understanding or articulating what was good for him. Of course, I directed the mother to invest a reasonable amount, from the interest of which she would educate the child, given that there was no hope that the father would perform his duty of maintaining the child.
I learnt three things from this foray into a family. Always call the child to talk to her/him (interview her/him) in the chamber. Never ask the pointed question as to who the child wants to live with. Ascertain the situation from answers to general questions. If the custody has to be changed, pass and execute that order on that very day in the court itself.
Cases of access/contact/visitation pose delicate problems in a fragile relationship. One such was a case of child custody which was already as old as the hills in the Family Court when I took charge as principal judge. It was reported to me that the father was the custodial parent and never allowed the mother to have any access to her child, their only son. Several orders were passed and modified. Several directions were given. None were followed. Order for striking off the defence of the father was also passed. It had no effect on the venom of the father against the mother. I decided to tackle the case head on. The father had not brought the child to the court for access, as he had been directed to do. I called the police officer who was posted outside my court. I told him that a child had been directed to be brought to the court by his father (pointing to him). Since the father had failed to perform his duty to the court, the officer would have to do the needful the next day. I made it clear that the child was not even to go to school but to attend my court. Whilst the father was visibly stumped to have seen a scene that had never happened before, I further directed the officer not to bring the child if the father did so himself; I wanted to minimize avoidable trouble.
I went to court a little early the next day. My counselors reported to me 10 minutes before court time would commence that the child and the parents were present in the court hall. I entered the court room. The matter was called out first. I declared that I would see the child in my chamber. I directed the counselors to keep both parents outside until I called for either of them. I had to do the tug-of-peace. I started to talk with the child and soon realized that he had not only been tutored to behave badly but was brainwashed against the mother as expected. I reasoned with the child for a while and then asked him to do as directed. I called in the mother and put them together to let nature do its job. Soon after my unique matchmaking of a pristine relationship, I left them alone in my chamber and went back to the court room. I directed no one to enter my chamber and only my counselors to oversee the pair. After a good two hours I was informed that the mother was satisfied at seeing her child and the child was hungry. I concluded the session and directed that the child be produced in my chamber every Thursday morning which was his weekly school holiday.
The police officer had remained in attendance. I reminded him that he would have to do the work of bringing the child if the father failed on any Thursday. I knew he would not have to. He never did. The child was happier by the day on meeting his mother, a gift he had lost. This continued for some weeks after which I modified the order of access to allow the mother and child to meet in more congenial surroundings. It is impossible to sermonize about the ethics of parenting in the atmosphere that prevails. The take-away from this matter was that in cases where access is resisted, call the child to the chamber to talk to her/him (to interview her/him). Allow the parent and child to get close (which may take one or many such interviews) in the peace and quiet of the chamber with no one inside and let love speak.
I have always wondered what the relationship of the custodial parent who has poisoned the mind of her/his child — and there are quite a few — would be when the child grows up and can independently decide right from wrong.
"Children will see you by what you live; than by what you say.” The adage became very relevant in another case of child custody when the tables were turned. The mother of three children did much the same thing and with effective result. The two elder daughters were most hostile to the father. The dutiful father attended each date of access in court only to return unfulfilled. He showed no anger against the mother’s spite. He knew his daughters were not to blame. They had attained the age to decide for themselves and were consistently refusing to even talk to him. He longed to have access to his younger son. An access order of the Family Court was challenged in a Writ Petition.
I directed the son to be brought to court. The mother sent the daughters instead. I knew this was meant to provoke me and bided my time. I wasted no time in directing the daughters to come to my chamber. They thought they would stand their ground. The mother must have had much confidence in their fidelity to her. I allowed the father to talk with his daughters. The father poured out his heart over the past, professed his love for them and assured them about his love and care in future. I could see the younger sibling shed tears. After a good one hour the rendezvous ended. I am gratified to learn that the very children who were so inimical and venomous to their father now live with him. I later learnt that this was a father very different from the rest. He did not force his children into submission. He gave them time and then accepted what they had to offer. Yet he bore no grudge. He put his responsibilities over his ‘rights.’ The power of his love clearly overpowered the love of power over his children.
"True love is not to hold on, but to let go.”                                  

To be continued