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Dec 11, 2020 —
Two Pathbreaking Judgements: Undoing The Dickensian Nightmare
A survey of the functioning of the Family Courts in India will reveal the Dickensian nightmare faced by the children in custody proceedings. The children are mute spectators and at the receiving end of the harsh system of divorce and custody litigations. The voices of these children are never ever heard. According to a recent report, 1.36 million people in India were divorced. Using the law of averages we are looking at a million children crying for their voices to be heard.
The Indian family court system in effect has been ignoring the rights of the child to make an intelligent choice for themselves.The existing status quo has now undergone a revolutionary change in two of the significant recent decisions of the Supreme Court, delivered on the same date. The decisions in Smriti Madan Kansagra v. Perry Kansagra, (2020 SCC OnLine SC 887) delivered by Justice Uday Umesh and Ms. Justice Indu Malhotra JJ (the majority opinion) and Ritika Sharan v. Sujoy Ghosh (2020 SCC Online SC 878) by Dr. Justice D. Y. Chandrachud, Justice Indu Malhotra and Justice Indira Banerjee JJ. now gives the children the voice and the platform to verbalise their aspirations and wishes.
The anachronistic situation was being faced by the children in India despite express provisions of the Guardians and Wards Act 1890. Section 17 (3) of the Act provides, "If minor is old enough to form an intelligent preference, the Court may consider that preference".This is in consonance with the various treaties viz. Convention of Rights of Child 1989 (signed and ratified by India) and Universal Declaration of Human Rights, 1948 (adopted by India) and International Covenant on Civil and Political Rights 1966 (signed and ratified by India).
The principle of the children being heard was endorsed in 1989 by Article 12 of the said Convention of Rights of Child: -
"1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child."
"2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."
Ecuador (in 1998), Finland (in 1995) and Poland ( in 1997) incorporated the right of the children to be heard into their Constitutions. Countries like Kazhakstan (2002), South Africa (2005) and Australia (2005) have already incorporated the right to be heard into their legislations.
In Smriti Madan Kansagra v. Perry Kansagra, (2020 SCC OnLine SC 887), the Supreme Court allowed a 11 year old child, Aditya in accordance with his wishes, to move with his father to Nairobi despite having lived all his 11 years of his life in New Delhi with his mother. The court found an personal interaction with the 11 year old. "that he was a bright and articulate child, who was capable of unequivocally expressing his preferences and aspirations".
In Ritika Sharan v. Sujoy Ghosh in CA No. 3544-45 of 2020. (2020 SCC Online SC 878), similarly, the Supreme Court brushing aside cruelty of the technical objections allowed the 7 year old child Sattik according to his wishes to live and study in a Covid safe Singapore with his mother. The Court found " During the course of the interaction on the video-conferencing platform,Satsqtik indicated his desire to reside with his mother in Singapore". The Court declared, understanding the sensitivity of the children, "In matters such as the present, the welfare of the minor child is of paramount concern.The jurisdiction of this Court under Article 142 of the Constitution is a facilitative constitutional instrument to advance substantive justice"
These two decisions of the Supreme Court, is the beginning of a silent and a necessary revolution in favour of the litigation affected children by giving effect to their own wishes and aspirations. In both situations the children's views as young as 7 and 11 of age have been ascertained with great sensitivity and carefully by the Hon'ble Supreme Court and thereafter passed orders in consonance with their wishes.
Courts below have a track record of often ignoring repeated Supreme Court's directives and judgments in family matters.
Family Courts, it is hoped, can no longer ignore these two significant decisions. Courts can no longer treat the children as a superfluous adjunct in the legal processes or be dismissive of the children as voiceless objects. It is hoped that the wishes of the children to choose the parent to live with, the institutions, they wish to study in and the city or the country they would like to live in, is given effect to by following the mandate of the Supreme Court. It will be a silent prayer of the million odd children of India, that this decisive revolution ushered in by the two judgments of the Supreme Court is not delivered in vain and their dreams and aspirations are fulfilled.
Views are personal.
(Author is a Senior Advocate at the Supreme Court of India)
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