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Discussion > Family Law > Custody > PARENTAL ALIENATION -Role Judiciary Plays   Unanswered Threads Post New Topic

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aflatoon dash


health
[ Scorecard : 395]
Posted On 23 September 2010 at 20:03 Report Abuse

Quoting from the TajobsIndia write up in Supreme courts judgments in Visitation rights.

 

“Everyone knows here what happens in custody contested cases; the custodial parent alienates the non-custodial parent from visitation and normal company of child and the case before the courts start climbing to superior courts in days to come and more alienation happens and ultimately when it reaches the highest Appellate Court the Hon'ble Lordships are left with no other option than pass a fleeting remark "we see that the child is well settled with the mother and or father hence we donot feel to intervene with the Orders of the HC.....etc.".

In my  interaction with Indian judicial system I did realize that

1-     Advocates are eager to take up divorce case but are reluctant to take custody/visitation cases for men.

2-     Juduges are quick to respond to maintenance default by admonishing husband  but reluctant to admonish spouses who alienate child or dishonour the visitation request of non custodial father.

3-     Advocates are also reluctant to voice strong opinion against sabotaging of visitation by custodial parent even when ordered  by court.

4-     Divorce  cases are disposed off on alimony direction even when visitation request are lying in the court and advocates are reluctant to press the issue beyond preferred divorce verdict.

 

There is some pressure on the Judiciary to keep the child or children with the person who has major control, usually the mother. Parental alienation however, also affects some mothers denied contact with their children who are resident with the father. On the whole, it is the male member of the partnership who suffers from the alienation situation.

 

Judges are often saved by the fact that fathers cease to pursue their role of wishing to play a part in their childrens' lives. This is due to the resistance they meet from the separated /former spouse, who has often formed a new relationship and wishes the new partner to take over the role of father.

 

Parental alienation succeeds due to following role of judiciary-

1.      Judges are reluctant to punish and most especially incarcerate obdurate mothers who refuse to comply with a judge's decision that they must allow access with an estranged father.

2.      Judges often are reluctant to ignore the view expressed by children that they do not wish to meet their fathers, despite the fact that such children have been "intensively programmed" to respond in this way by mothers and the mother's relations.

3.      Judges are reluctant to advise that therapy should take place, despite the fact that when such alienation occurs, children are damaged. Such therapy is Rarely  recommended by experienced psychiatrist or psychologist . Even When recommended such recommended periods of therapy for the child and mother are viewed by judges (with the aid of the mother's Counsel!) as likely to damage further the children who are involved in this conflict and hostility between the parents.

Despite such reservations, judges have a moral duty to provide justice for the alienated party, this usually being the father. The threat of punishment for the alienator must be supported by punishment, including removing the child from mother's care to a neutral place or to the alienated parent, and to use incarceration when necessary. Failure to carry out this distasteful, but necessary, action against the obdurate party would constitute a mockery of the judicial system

    That most alienating parents, whether mothers or fathers, will obey a court order if punishment is threatened for failure to adhere to the ruling. Hence the carrying out of the various possible measures is rarely necessary.

PAS( Parental alienation syndrome)is a vicious form of gender opportunism or gender apartheid, which those seeking through justice can no longer ignore. Judges must stop worrying about public outcries if they remove a child from the care of a vicious programming parent who is showing their hostility toward the former partner. Advocates must enlighten them selves with parental alienation and parental alienation syndrome.

What my esteemed friends and advocates have to say.

Aflatoon

 



Renuka Gupta


Gender Researcher
[ Scorecard : 1495]
Posted On 23 September 2010 at 22:36 Report Abuse

Nuetral place for a child! This issue had come up in one of the threads. And if the child does not want that huetral place, as though child is a non thinking dummy, does have his/her own voice and thinking capacities. As though children of all divorced parents are drug addicts, and suffer from suicidal tendencies and the like. As though all children of divorced parents are failures! This is like branding a child. Have enough studies done in the Indian context. Have we compared enough the children of divorced parents with those of  non divorced parents? Is there a critical mass of literature in the context of India/South Asia?

Why I child should, who otherwise is well adjusted, should be removed to a nuetral place? And why this branding of women as those who program the brians of children against father? Have we prepared enough ground for that ideal situation joint costody? If not, why the children should suffer innumerable sittings with the therapists? The counceling should be majorly with parents.

More often than not men tend to get remarried faster after the divorce than women. And there is a reason why the child remain more attached to mother. Our gender division of labour in normal times is such that mother is majorly responsible for childcare even if she is a working woman, she palys multiple role in a child's life. So if the child wants to be with her mother, is it the fault of the child? Then in the normal times, let there be shared responsibilities between parents. Does it happen in majority of the cases. More often than not mothers compromise with their careers for the children, and fathers remain busy climbing up the ladder, they do not have time for the child in her/his formative years.

Let us not think that the child does not have capacity to think critically, analyse the situation, and protest against either of the parents. The child has a right to homely environs and against his/her wishes should not be sent to the hostel if he /she is getting the personal care of the parent.

We need compassion to look into the single parenting, to look into innumerable hurdels that the non custodial parent may  or may not pose in the upbringing of the child. Unless a basic trust and respect is restored between the parents, joint custody would bring in its own problems with it; though it remains an ideal situation. But for this ideal situation to materialise, both parents need to prepare the ground. The blame game will not help much in this direction.



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aflatoon dash


health
[ Scorecard : 395]
Posted On 23 September 2010 at 23:55 Report Abuse

Renukaji

At the outset I want to make clear I have lot of regard for the Parent who are single by force and not by choice.I always believe that woman have better capacity to give to child till aparticular age and after a particular age the child needs father also.I am against that mindset which engages the child in selective parenting rejecting the non custodial parent as I see it as  serious parenting skill deficit.As parent its our prime parental obligation  to promote positive relationship of the  the child with the other parent. Any parent who does not fullfil the this exhibits serious parenting deficits.I AM AGAINST THE MINDSET WHICH REDUCES BIOLOGICAL FATHER TO BEING JUST A VISITOR IN CHILDS LIFE.

What is Parental alienation -Many educated people ,lawyers ,judges,mental health professional do not know this.It is a behaviour which may be conscuious or unconscious on the part of conrtrolling parent which allignes the child against the absent parent to hurt him and damage his relationship with the the child.

Remember its previously loved admired and caring father becomes an object of hate for the child.

Why does alienating parent do it.-They do it because they want to hurt the opposing spouse and settle personal score.

How The controlling parent do it-

  • brainwashing, of the child
  • character assassination of the absent parent
  • the false inducement of fear in child
  • incitement of shame,in the child for getting close to absent parent 
  • using children to commit relational aggression against the target parent,
  • loss of self control,
  • flareups of anger,
  • unconscious alliances with the children against the target parent.
  • delibrate denigration of the children's relationship with the target parent.

Why does child participate-Fear of loosing approval of controlling parent.Emotional blackmail done by controlling parent.Just to apease the controlling parents(child may have no previous greivance against the absent parent excepting the hear say from the controlling parent and their relative.Alienating parents often use grandparents, aunts/uncles, and elder siblings to alienate their children against the target parent. In some cases, mental health professionals become unwitting allies in these alienation attempts by backing unfounded allegations of neglect, abuse or mental disease.                                                                                                                                           In indian context Parental alienation is not studied .This does not mean it does not exist and its not rampant.The studies quoted by me are reliable and authentic .Definiately indian context and scenario is different but the evil will culturally sensitive variation but saying it will not manifest at all will be incorrect.                                                                                                                    your quote

 "why this branding of women as those who program the brians of children against father" studies reveal that woman are more doing it and male are the target parents.   your quote "Unless a basic trust and respect is restored between the parents, joint custody would bring in its own problems with it; though it remains an ideal situation"   Obsessive alienators will never come to negotiating table they needs strict directions from court .Men remarry but for many  men with divorce parenting doesnt stop (sadly for overposessive and insecure mothers).

 Aflatoon


Tajobsindia


Senior Partner
[ Scorecard : 18797]
Posted On 24 September 2010 at 00:36 Report Abuse

To the first replier of above post before you pop up your research and complain to Admin / Partner of LCI Forum that “hey, people are putting me behind walls and boxing me out and or say I don't wish to reply to long mails etc etc….as is seen when you are confronted into serious discussion based on your past 2 months messages patterns.... …….” read silently these two news items, one is of April '10 month and the second one is of Sep. 10 month.


These two news item are the reason why PAS happens and in both illustrations the child are sufferers. Now how would you like your research to proceed before public scrutiny ? You want Indian research I will give you enough research data on PAS but first decide you need urban data and or rural data or simple a data on PAS but then don’t complain here in public forum when I produce Indian research on PAS above quote and unquote of yours which has become generic in various threads of yours when confrontation happens.......……well are you ready for the hard data now?


Now, before someone else says my opening sentencee is “verbal abuse” and or "degrading women" etc etc. read and understand the two illustrations and by bringing them here I have no intention to degrade women but only point I am drawing is that how child can connect with father when his / her own mother files false cases and alienates the child from father ?


Illustration 1:

A Take: “Indira Jaising who runs the Lawyers' Collective (a femisist organization) is misusing her government position to help bad women and create bad laws for
India

 

Source:
http://www.ndtv.com/news/india/court-restrains-interpol-from-taking-custody-of-child-from-nri-18497.php   

 

Now the actual news item: The Supreme Court on Friday restrained the Interpol from taking custody of a minor boy from his NRI mother's possession and decided to examine the crucial question whether Indian courts can entertain matrimonial disputes if the couple is foreign citizens.

 

A Bench of Chief Justice K G Balakrishnan, Justices J M Panchal and Deepak Verma directed "status quo" on the custody of the child and posted the matter for further hearing to April 1.

 

The apex court passed the interim order on an SLP filed by Ruchi Majoo, a dentist and an American now domiciled in Delhi.

 

Ruchi had filed the SLP through counsel Ashish Bhan against a Delhi High Court order, which had held that since the divorced couple was US citizens, the custodial battle for the child should be fought in that country's court.  The high court had passed the order while setting aside the district's order granting custodial rights to the mother.

 

However, Ruchi's husband, armed with a US court order, sought the help of

the Interpol to take custody of the child and came to India, following which

the woman moved the apex court.

 

In an unusual appearance, Additional Solicitor General Indira Jaising, on behalf of Ruchi urged, the apex court to take up the matter for early hearing as according to her the issue "was of great significance involving jurisdictional powers of Indian courts" over such matrimonial disputes involving people of Indian origin.

 

Normally, government counsel, more so those holding high ranking law officer

posts like Additional Solicitor Generals, do not appear in private disputes except without the permission of the Attorney General.

 

Jaising complained the Interpol was attempting to take away the child from the mother's custody and sought a restrain on it.

 

However, the husband's senior counsel Pallav Sisodia told the Bench that Ruchi had deliberately foisted false cases of 498A (harassment of wife by husband/relatives) against Sanjeev to harass him. He pointed out that there is a growing tendency among such estranged NRI wives to come to India and file false 498A cases as such provisions were not available in other countries.


Illustration 2:

A take: "We went through hell for the past ten years. So many arrest warrants, all the expenses and the defamation aside, my brother is never going to get back the last ten years. He's totally mentally devastated," he added."


Source:
http://www.forestlaneshul.com/swastika-mukherjee-admits-her-dowry-harassment-allegations-were-false-9650.html

 

Now the actual news item: Kolkata, Sept 23 (IBNS): Tollywood actress Swastika Mukherjee has confessed in a media conference that the dowry harassment allegations she made against her estranged husband were false, apparently bringing a closure to an episode that has been playing out amidst full media glare for ten years.

.

"I was young, I did not have enough sense back then and I did what my family, friends and peers advised me to do," is how Swastika on Wednesday chose to explain why she falsely accused her husband singer Promit Sen of "subjecting her to cruelty" and "criminal breach of trust".

 

Swastika's shocking but predictable confession comes a day after she apparently submitted an affidavit at a city court admitting that the charges she made against her husband and her in-laws under Indian Penal Code 498A and 406 were "unfounded, false, baseless and speculative".

 

Swastika and Promit, the youngest son of renowned Rabindrasangeet exponent Sagar Sen, were married in June 1998, when the actress was just 18.

 

"Things started to go wrong around two years later when like a bolt from the blue my brother, our family and even me, who all lived in different places, were charged by her for dowry related crimes," said Pritam Sen, Promit's elder brother, who also attended the press conference.

 

"We went through hell for the past ten years. So many arrest warrants, all the expenses and the defamation aside, my brother is never going to get back the last ten years. He's totally mentally devastated," he added. Though divorce was reportedly filed by Swastika in 2001, the cases are still under legal red tape.

 

Pritam said recently Swastika had issued a press release which after being published in the media made it seem as if the two parties had reached a compromise and were heading for divorce which was definitely not the case.

 

Hence Wednesday's press conference was called by the actress "to come clean".

 

"I am deeply sorry for all that Promit and his family has had to go through. I hope he can move on," said Swastika.

 

"As far as the custody of our daughter Anwesha is concerned, lets see what plays out. She's a ten-year-old girl and she too has a say in this," she said.

 

When asked what drove her to suddenly make such an effort, she replied that it was not out of any pressure but just a "realisation".

 

Sources, however, say this might be just a coup to get the divorce the 30-year-old actress, who is known for her `who cares' attitude and has not exactly had the smoothest relationships over past few years, has been after for quite some time.

 

Pritam, however, said he and his family were pleased at Swastika's confession.

He said, "I think we should give her the benefit of the doubt. Let's see what this leads to. But we'll not accept anything but a genuine apology."

 

The Sen family is apparently not mulling pressing charges on the actress since they are "not vindictive people", said Pritam.

 

The confession, apart from sending gossip mills in overdrive, also sheds light on the Indian Penal Code which leaves the door for such a heavy-handed charge wide open for misuse.


 
-----------------------------------------------------------------------------------In both above illustrations both persons are well off and have climbed corporate and whatever ladders in their life so it is a lame reasoning of yours given to public that women sit back and are not given opportunity to climb corporate ladders and or what ever ladders you are meaning thereby !



Total thanks : 1 times

Tajobsindia


Senior Partner
[ Scorecard : 18797]
Posted On 24 September 2010 at 00:48 Report Abuse

To second replier if you say news items are hearsey and un reliable then I wnder what your opinion would be on such schoking child abuse in entire legal history of child custody / visitation Indian mother could come upto ?


It was a very traumatic and unfortunate case and I am not blaming Anita for it but think of PAS then this landmark case is tombstone to begin with.................let us hte educated public and legal fraternity think aloud and let us not put every legal matters on touchstone when ilustrations do exists here in Hon'ble Judiciary itself ;

 

PETITIONER: SH. SATISH MEHRA

Vs.

RESPONDENT: DELHI ADMINISTRATION & ANR.

DATE OF JUDGMENT: 31/07/1996

BENCH: M.M.PUNCHHI, K.T. THOMAS

JUDGMENT: THE 31 DAY OF JULY, 1996

Present: Hon'ble Mr. Justice M.M. Punchhi Hon'ble Mr. Justice K.T. Thomas

In-persono for appellant

S.N. Sikka Adv. for S.N. Terdol, Adv. for the Respondent No.1

N.B.Joshi, Adv. for the Respondent No.2

J U D G M E N T

The following Judgment of the Court was delivered: Shri Satish Mehra

V. Delhi administration and another

J U D G M E N T

THOMAS,J.

Some eerie accusations have been made by a wife against her husband. Incestuous s*xual abuse, incredulous ex facie, is being attributed to the husband. Police on her complaint conducted investigation and laid charge sheet against the appellant, who has filed this Criminal Appeal special leave as he did not succeed in his approach to the High court at the F.I.R. stage itself.

More details of the case are these:

Appellant (Satish Mehra) and his wife (Anita Mehra) were living in New York ever since their marriage. They have three children among whom the eldest daughter (Nikita) was born of 2nd April, 1988. Before and after the birth of the children relationship between husband and wife was far from cordial. Husband alleged that his wife, in conspiracy with her father, had siphoned off a whopping sum from his bank deposits in India by forging his signature. He also alleged that his wife is suffering from some peculiar psychiatric condition. He approached a court at New York for securing custody of his children. On 31.10.1992 his wife left his house with the children and then filed a complaint with Saffolk County Police Station (United States) alleging that her husband had s*xually abused Nikita who was then aged four. United States police at the local level moved into action. But after conducting detailed investigation concluded that the allegations of incestuous abuse are untrue.

On 7.3.1993, appellant's wife (Anita) returned to India with her children. In the meanwhile Family Court at New York has ordered that custody of the children be given to the husband and a warrant of arrest was issued against Anita for implementation of the said order.

The battle field between the parties was thereafter shifted to India as she came back home. On 19.3.1993, Anita filed a complaint to the "Crime Against Women Cell" (CAW Cell for short) New Delhi in which she stated that her husband committed s*x abuses with Nikita while they were in United States and further alleged that appellant committed certain matrimonial misdemeanour on his wife. But the complain was close but want of jurisdiction for the CAW Cell to investigate into what happened in United States. Appellant returned to India on 127.1993 and thereafter filed a petition for a writ of Habeas Corpus for securing the custody of the children.

The present case is based on a complaint filed by Anita before Greater Kailash Police station on 14.8.1993. FIR was prepared and a case was registered as Crime No. 197/93 for offences under Sections 354 and 498-A of Indian Penal Code. On 25.8.1993, the investigating officer moved the Sessions Court for adding Section 376 of the IPC also. The case was charge sheeted by the police and it was committed to the Court of Sessions.

As committal proceedings took place during the pendency of the Special Leave Petition, this Court directed the Sections judge on 22.2.1996 "to apply its mind to the case committed and see whether a case for framing charge/charges has been made out or no". Learned Session judge, by a detailed order, found that no charge under Section 498-A IPC could be framed against the appellant, but charge for offences under Sections 354 and 376 read with Section 511 of IPC should be framed against him. Accordingly, the charge has been framed with the said two counts.

First count in the charge is that appellant had outraged the modesty of his minor daughter aged about 3 years during some time between March and July, 1991 at D- 108, East of Kailash, New Delhi by fondling with her v**gina and also by inserting bottle into it and thereby committed the offence under Section 354 of the IPC. Second count in the charge is that he made an attempt to commit rape on the said infant child (time and place are the same) and thereby committed the offence under Section 376 read with Section 511 of the IPC.

At this stage it is superfluous to consider whether the FIR is liable to be quashed as both sides argued on the sustainability of the charge framed by the Sessions Judge. We are, therefore, considering the main question whether the Sessions Court should have framed the charge against the appellant as it did now.

Considerations which should weigh with the Sessions Court at this state have been well designed by the Parliament through Section 227 of the Code of Criminal Procedure (for short 'the Code') which reads thus: "227. Discharge. - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution there is not sufficient ground for proceeding accused and record his reasons for so doing."

Section 228 contemplates the stage after the case survives the stage envisaged in the former section. When the Court is of opinion that there is ground to presume that the accused has committed and offence the procedure laid down therein has to be adopted. When those two section are put juxtaposition with each other the test to be adopted becomes discernible: Is there sufficient ground for proceeding against the accused? It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where there is "sufficient ground for proceeding". (Vide State of Bihar v. Ramesh Singh, AIR 1977 SO 2018, and Supdt, & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979 Cr. L.J. 1390: AIR 1980 SC 52). In Alamohan Das v. State of West Bengal (AIR 1970 SC 863) Shah, j. (as he then was) has observed in the context of considering the scope of committal proceedings under Section 209 of the old Code of Criminal Procedure (1898) that a Judge can sift and weight the materials on record by seeing whether there is sufficient evidence for commitment. It is open to the Court to weight the total effect of the evidence and the documents produced to check whether there is any basic infirmity. Of course the exercise is to find out whether a prima facie case against the accused has been made out.

In Union of India v. Profullakumar- 1979 Cr.L.J. 154, this Court has observed that the Judge while considering the question of framing the charge has "the undoubted power to sift and wight the evidence for the limited purpose of finding out whether a prima facie case against the accused has been made out". However, there Lordships pointed out that the test to determine a prima facie case would naturally dependent upon the facts of each case and it is difficult to lay down a rule of universal application. "By and large, however, if who view are equally possible and the Judge is satisfied that the evidence produced before him gives rise to some suspicion but not grave suspension, the Judge would be fully within his right to discharge the accused". At the same time the Court cautioned that a roving enquiry into the pros and cons of the case by weighing the evidence as if he was conducting the trial is not expected or even warranted at this stage.

An incidental question which emerges in this context is whether the Session Judge can look into any material other than those produced by the prosecution. Section 226 of the Code obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. The Next provisions enjoins on the Session Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider (1) the record of the case and (2) the documents produced therewith. He has then to hear the submissions of the accused as well as the prosecution on the limited question whether there is sufficient ground to proceed. What is the scope of hearing the submissions? Should it be confined to hearing oral arguments alone? Similar situation arise under Section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two State the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next State. It is a matter of exercise of judicial mind. There is nothing in the code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "ground" may be any valid ground including insufficiency of evidence to prove charge.

The object of providing such an opportunity as is envisaged in Section 227 of the code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even material which the accused may produce at the stage contemplated in Section 227 of the Code.

But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceedings at the stage of Section 227 of the Code itself.

In the present case learned Session Judge has missed certain germane aspects. Apart form the seemingly incredulous nature of the accusations against a father that he molested his infant child (who would have just passed her suckling stage the) the Sessions Judge out not to have overlooked the following telling circumstances. The complaint made by her with the New York police that her husband committed s*xual offences against her 18 months old female child was investigated by the New York police and found the complaint bereft of truth hook, line and sinker. The present charge is that the appellant committed such offences against the same child at East Kailash, New Delhi some time during March to July, 1991. There is now no case of what happened in United States. There is now no case of what happened in United States. The Sessions Judge should have noted that appellant's wife has not even remotely alleged in the complaint filed by her on 19.3.1993 before CAW Cell , New Delhi that appellant has done anything like that while he was in India. Even the other complaint. petition (on which basis the FIR was prepared) is totally silent about a case that appellant did anything against his daughter anywhere in India. when we perused the statement of Anita Mehra (second respondent) we felt no doubt that the has been brimming with acerbity towards the petitioner on account of other causes. She describes her marital life with petitioner as 'extremely painful and unhappy from the very inception". She complains that petitioner has "a history of irrational outbursts of temper and violence". She accused him of being alcoholic and prone to inflicting server physical violence on her form 1980 onwards. Thus her attitude to the petitioner, even de hors the allegation involving the child, was vengeful. We take into account the assertion of the of the petitioner that the present story involving Nikita was concocted by the second respondent to wreak her vengeance by embroiling him in serious criminal cases in India so that the could be nailed down here and prevent him from going back to U.S.A. While hearing the arguments we ascertained whether the spouses could settle their differences. Second respondent, who to was present in court, made an offer through her counsel that she could agree for annulling the criminal proceedings against the petitioner on the condition that he should withdraw his claims on the bank deposits and would also relinquish his claim for custody of the children, and further he should concede for a divorce. In response to the said conditional offer, petitioner agreed to give up all his claims on the large amounts in bank deposits, and further agreed to have the divorce. But he stood firm that on no account custody of the children could go to the second respondent but if made to, subject to his rights of visitation. This, he said, is because he is convinced that second respondent is unsuitable to be entrusted with the care of the children.

In the above context petitioner drew our special notice to a medical report issued by Dr. Prabha Kapoor (Children Medical Centre, Jorbagh, New Delhi) On 26.7.1992. It is stated in report, that Nikita was brought to the doctor by the second respondent and on examination of the genetals of the child the doctor noticed " a wide v**ginal opening -wider than would be expected of her age group." On the strength of the aforesaid medical report, petitioner made a frontal attack on second respondent, alleging that in order concoct medical evidence against him the little child's genitals would have been badly manipulated by its mother. To substantiate this allegation he drew our attention to the U.S. police report, in which there is mention of a medical examination conducted on Nikita by a U.S. doctor (Dr. Gordon) on 24.11.92. That doctor pointed out that there was absolutely no indication of any s*xual abuse when the child was physically examined. If the medical examination done on the child in November, 1992 showed such normal condition, petitioner posed the question -who would have meddled with the child's genitals before 26.7.93, to case such a widening of the v**ginal office? (We now remember again that, as per present case, the last occasion when the petitioner should have abused the child was in July, 1991). The aforesaid question, posed by the petitioner in the context of expressing grave concern over what the mother might do with the little female child for creating evidence of s*x abuse, cannot be sideline by us in considering whether the case should proceed to the trial stage.

Petitioner invited out attention to the answers which Mrs. Veena Sharma (of CAWC) has elicited from Nikita, a verbatim reproduction of which is given in the counter affidavit filed by the second respondent. The said interrogation record reveals that Mrs. Veena Sharma has practically put on the tongue of the little girl that her father had molested her. The following questions and answers can bring the point home the questions. The questioner asked the child "what your dady did with you" and the child answered that he put his finger (and showed her private part). Not being satisfied with the answer the next question put to the child was "Dady puts what else". Then Nikita answers "Dady puts his bottle". We noticed with disquiet that the questioner drew the picture of the petitioner -face body and then asked certain questions such as "where is papa's bottle? Is it on the cupboard?" The child kept looking at the drawn sketch and pointed to the part between legs. Questioner then asked if anything was missing in the picture, to which Nikita Answered "glesses". After the child again pointed to the private parts between the legs, the questioner wanted the child to draw "papa's bottle". But then the child told her "you do it." The questioner at the stage had the temerity to draw the picture of the private parts of child's father. We are much disturbed at the manner in which the little child was interrogated by the said officer of CAW Cell. At any rate we have no doubt that the purpose of such questions was to lead the child unmistakably to the tutored answers.

Even overlooking all the inherent infirmities shrouding the testimony of a tiny tot speaking about what her further did when she was aged 3 and even ignoring the appellant's persistent submission that the little child was briskly tutored by her mother to speak to the present version, There is no reasonable prospect of the sessions court relaying on such a testimony to reach the conclusion that the prosecution succeeded in proving the offence charged beyond all reasonable doubt.

Over and above that, what would be the consequence if this nebulous allegation is allowed to proceed to the trial stage. We foresee that Nikita, the child witness, now eight years and four month old, mus necessarily be subjected to cross-questions involving s*x and s*x organs. The traumatic impact on the child when she would be confronted by volley of questions dealing with such a subject is a matter of concerned to us. We cannot brush aside the submission of the appellant that such an ordeal would inflict the appellant that such an ordeal would inflict devastating impairment on the development of child's personality. Of course, if such a course is of any use to the cause of justice, we may have to bear with it as an inevitable course of action to be resorted to. But in this case, when the trial is going to be nothing but a farce, such a course of action should not be allowed to take place on account of the impeding consequences befalling an innocent child.

After adverting to the above aspects and bestowing our anxious consideration we unhesitatingly reach the conclusion that there is no sufficient ground to proceed to the trial in this case.

We, therefore, quash the proceedings and the charge framed by the Sessions Judgement and discharge the appellant. The appeal would stand allowed.



Total thanks : 1 times

aflatoon dash


health
[ Scorecard : 395]
Posted On 24 September 2010 at 06:54 Report Abuse

I am amazed and saddened by the fact that learned lawyers and more knowledable persons than me on the board are not not participating in this serious and valid discussion .What an apathy towards the PAIN OF A FATHER.Correct me if I am wrong.

AFLATOON


Renuka Gupta


Gender Researcher
[ Scorecard : 1495]
Posted On 24 September 2010 at 07:46 Report Abuse

Judgments are from case to case basis and this judgement is the right judgement and everyone would condemn the conduct of mother here. However,  this  does not delete the reality that some fathers have s*xually abused their own daughters, though such cases may be rare. In case of this judgement, then judiciary has done the right thing, but if the custody goes to mother, then judiciary becomes a gender biased judiciary! 

Apart from dealing with existing cases, it is high time that we nurture our future generation in schools and colleges on the theory and practice of responsible homemaking and parenting, irrespective of gender. These are the topics which are avoided in our curricula most obviously. Introduction of peace education would help towards bringing in gender peace in our homes and by implication neighborhood, streets, and communities. 


Adv Archana


Practicing Advocate
[ Scorecard : 11307]
Posted On 24 September 2010 at 07:47 Report Abuse

 

@ aflatoon dash,

 

"1-     Advocates are eager to take up divorce case but are reluctant to take custody/visitation cases for men.

2-     Juduges are quick to respond to maintenance default by admonishing husband  but reluctant to admonish spouses who alienate child or dishonour the visitation request of non custodial father.

3-     Advocates are also reluctant to voice strong opinion against sabotaging of visitation by custodial parent even when ordered  by court.

4-     Divorce  cases are disposed off on alimony direction even when visitation request are lying in the court and advocates are reluctant to press the issue beyond preferred divorce verdict."

                                      This may be your own personal view, but not the reality in general. In a case for custody, the issue of welfare of child is given paramount importance, why to blame the advocates? If the father can show that he welfare of the child lies with him then the courts do grant custody to the father [ I've got custody of a 9 yrs old boy in favor of his father just a few days ago]. Everything depends upon the material on record and how the case is presented. Of course, in cases of very small children definately the court favors mother more than the father for the obvious reasons that they need mother's care and attention more than anyone else.   I also disagree with your point no. 3, may be your opinion but why an advocate would do so? An advocate tries his/ her best in the interest of the client.   Some times during the course of the cases bitterness in the parties increases to such an extent that the parent who is given the visitation right is not keen in exercising his rights because he will have to face his wife/ inlaws, which he does not want. 



Total thanks : 1 times

aflatoon dash


health
[ Scorecard : 395]
Posted On 24 September 2010 at 08:06 Report Abuse

Archana ji,

i stand by my statement that to convince a lawyer to take up visitation /custody case is herculean effort.I stand by my statement that neither the lawyers and Honerable judeges in majority Know or are eager to know anything about parental alienation.You have also totally avoided the term in totality in your write up.I do have visitation rights and i do know what is the attitude of brilliant of lawyers in PA cases.There are several fathers who need more empathetic and more forceful approach to this menace of PA (Parental alienation)

Aflatoon
 


Renuka Gupta


Gender Researcher
[ Scorecard : 1495]
Posted On 24 September 2010 at 09:11 Report Abuse

Yes, sometimes father hates to see the face of mother or hates to communicate with mother. Now even for visitation to go smoothly, let alone joint custody, father has to communicate with mother in a non abusive language. If he is not prepared to do it, he avoids it . The same may apply to mother also, if she has visitation rights and has so much ill feeling  against her ex husband that she would not like to talk or see him and hence would avoid seeing her own child. 

Now coming to PAS, first enough number of studies have to happen in India/Asia, juxtaposing such studies with the same indicators on children from "normal" homes where divorce have not happened. Just one or two case studies will not do. Joint custody needs tolerant attitudes, and nothing short of that. Do we mean to say all men and women who come from intact houses are models of peace and non violence? Do we mean to say children from so called broken houses are not resilient enough to adopt proactive coping strategies as much as children from intact homes have been seen slipping into adverse coping strategies. In an interview with school principal and teachers it has been found that some of the children from the separated parents are doing better in studies, and are relatively more sensitive( in a positive manner)  to human relationships, exhibit less of bullying nature. Even so one or two interviews of such nature will not do. There has to be a mass of such studies with children whose parents are on respectful terms after separation, still burn with hatred. Goes without saying when parents are on respectful terms in relation to the child, so much can be done even with the visitation rights. Which visitation right will not be respected by the other spouse, rather it would be eagerly awaited by the other parent, if the child's love is kept beyond anything : personal hurt, humiliations, raging allegations. I am not talking utopia, I have seen some couples who are separated, but still have decided to spend a weekend to take the child out together, where fathers run to help mothers in times of emergencies, where personal accusations perhaps have lost steam in face of the larger interest of the child. 

There are such cases also where some fathers suddenly discover their love for the child and their capacity to care for them,  I am sorry to say, and that expression of love happens after the divorce papers are filed by either spouse. Same things may happen with mothers also where applicable. 



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