New Delhi: The Supreme Court Thursday established a set of guidelines for the psychological or psychiatric evaluation of minor children in cases concerning their custody. Underlining that a society’s soul can be revealed by the treatment it accords to children, a bench of Justices Sanjay Karol and N.K. Singh delivered a 65-page ruling in a case concerning a long and convoluted separation.
The case arose in December 2019, when the wife, after an alleged incident of domestic assault, took her daughter away to Pune without the husband’s knowledge. She also sought divorce, and alimony from him.
The husband did not agree, and filed a habeas corpus petition before the Bombay High Court, seeking custody of his minor daughter who was less than three years old at the time. In turn, the wife lodged a complaint at the Yerwada Police Station in Pune against the husband under the Protection of Children from Sexual Offences Act (POCSO), alleging that he had abused his daughter.*
Significantly, the case delved into concerns surrounding the child’s reconciliation with the father as well as the obligation to ensure that a child is not subjected to further trauma in the process of divorce.
“The issue, therefore, is not merely one concerning custody or visitation rights, but concerns the manner in which the justice delivery system must respond to and engage with a child victim while balancing welfare, dignity, psychological safety and procedural fairness,” the court said.
SC ruling and guidelines
Pointing out that the rights of litigating parents will remain subservient to the welfare of the child in matters of custody, the court said that a child-centric approach must be adopted, consistent with its obligation to preserve the dignity, emotional security and psychological well-being of children.
In POCSO cases, this principle acquires even more significance, the court said, adding that Section 24 of the Prevention of Children from Sexual Offences Act mandates that the statement of children must be recorded in a child-friendly manner, by policemen who are specially trained for the purpose, and without exposing the child to intimidation or stress.
Recalling the parens patriae doctrine, which is the inherent power of courts to intervene and act as guardian for individuals who are legally unable to protect themselves, the court said the child’s welfare and dignity must be protected first. Factors, like the number of professionals speaking to the child, frequency of sessions and the context in which the evaluation happens, also come into play, and may affect the overall emotional experience of the child, it said.
Among the several guidelines delineated by the court was a direction to family courts to appoint a psychologist to interact with both parents, and assess their mental or psychological condition.
Such psychologists also have to interact with child psychologists to ascertain the mental health of the child, and later submit a report to the family court. The family court will then consider this report and pass appropriate orders on the desirability of conducting the child’s psychological assessment at this stage.
Based on this report, if the family courts find psychological evaluation of the child unnecessary, it won’t be carried out. However, if the court’s opinion is contrary, an independent child psychologist will carry out the exercise, with utmost care and the most minimal number of interactions possible so as to not disturb the child’s mental health.
Family courts may also be required to review such orders of psychological assessment from time to time, the Supreme Court said, pointing out that the child’s needs and social circle would also evolve eventually. “Courts must remain alive to the changing needs of the child.”
Significantly, the family court also has to check if “false memories” have been created in the child’s mind against the other parent, as apprehended by the father in the present case. The child must not be exposed to any influence which may foster the development of the “parental alienation syndrome”, which essentially refers to a child’s extreme, unwarranted fear or hostility toward one parent, usually seen in custody or divorce battles.
Finally, the court remitted the case back to the family court for fresh consideration of the matter, and said that these guidelines should not be treated as exhaustive or inflexible. While dealing with cases of children, it must be kept in mind that due to emotional responses and child welfare concerns, rigid formulas or uniform standards will not always apply, the court said.
Achalika Ahuja, one of the lawyers representing the wife, told ThePrint, “This was a peculiar case dealing with minor children in proceedings arising out of custody, visitation, and parental access, especially where the child is also a victim under the POCSO Act.”
Adding that the judgement makes extremely relevant observations on ensuring the emotional security, dignity and well-being of children in the judicial process, she said the court lays down key guidelines on the approach that should be taken by courts while adjudicating such matters, by emphasising the necessity of any evaluation, the neutrality of experts, and the scrutiny of parents.
“We are glad that the judgement lays down a framework and definitely adds to the jurisprudence on protecting the emotional safety and dignity of children in POCSO and custody proceedings,” Ahuja told ThePrint.
On the other hand, senior Delhi-based lawyer Malavika Rajkotia, who specialises in divorce and family law cases, told ThePrint that while the court’s approach was well-meaning and the judgment is much needed, its implementation could be an issue.
“The approach is absolutely right, but the issue is the lack of competent psychological assessment counsellors in the country. More often than not they end up giving archaic lectures, and they need to be more sensitised. A child accusing the father of sexual abuse should not be lectured or patronised. A proper mechanism for evaluation is lacking which respects the autonomy of the child,” Rajkotia told ThePrint, adding that psychological evaluation needs to be highly evolved in our cultural context, where agency of every family member is respected equally.
How the case reached SC
In February 2021, the family court said that the custody of the daughter shall vest with the wife. In June 2021, the Bombay High Court granted the husband limited access to his daughter, allowing him to video-conference with her for a period of three months. Following this, the wife got another First Information Report registered against her husband, this time at Faridabad.
Worried at the thought of being not only separated but also alienated from his daughter, the husband sought psychological intervention and examination of the child through a panel of expert psychologists, and sought the Supreme Court’s intervention in the matter.
The husband sought visitation rights and the appointment of an expert to interact with the parties and evaluate the circumstances of the child. Not giving the husband the relief he needed, the top court sent him to the family court in Pune, which also rejected his request for an independent psychiatric expert, on the ground that serious POCSO allegations were levelled against him.
Once again, he moved the Bombay High Court, which allowed the husband’s plea in January 2023, saying that the family court had failed to notice that the child’s evaluation will not necessarily involve contact between her and the father. In doing so, the high court said that the psychologist will conduct meetings with both husband and wife in this case.
Subsequently, in December that year, the Bombay High Court set up a four-member panel of experts, including professionals suggested by the child’s father, and experts located outside India in order to facilitate the connection between the father and daughter.
Challenging the Bombay High Court’s directive on subjecting the child to psychological evaluation, the wife moved the top court, saying that it would amount to subjecting a child, who has been a victim of abuse, to repeated and intrusive psychological evaluation. This would expose the child to “avoidable retraumatisation” and intrusive psychological assessment, she had argued.
(Edited by Nardeep Singh Dahiya)
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