Tiny Lives, Smallest Voices And Fights That Leave A Deep Impact – Child Participation In Custody Disputes
Mehak Baid, B.Com. LL.B. (Hons.), Jindal Global Law School, Sonipat
ABSTRACT
One of the most confidential issues in court are custody cases where legalistic arguments tend to conceal the emotional wrath of the children. Historically, the Indian family law had children as passive subjects whose decisions were made based on parental claims and judicial interpretation of welfare. Nonetheless, as constitutional values and international obligations like “UN Convention on the Rights of the Child” have increased there has been a slow move towards considering children as rights-bearing individuals and their voices ought to be heard. The paper will focus on how Indian courts have started considering the views of children when determining a custody finding even though decisions continue to be based on the principle of welfare in statutes such as the “Guardians and Wards Act, 1890” and the “Hindu Minority and Guardianship Act, 1956.” It brings out the shifting role played by in-camera interactions, counselling mechanisms and child-sensitive procedures through a study of prominent judicial rulings. Simultaneously, it solves such enduring problems as the absence of consistent guidelines, the threat of parental influence, and the inadequacy of the infrastructure in family courts. It takes the position in the paper that a moderated approach ought to be adopted in which the children are listened to without being overburdened with the decision-making process, and recommends institution-level changes to be made so as to have meaningful and consistent child-involvement in the custody process.
Keywords: child participation, custody disputes, welfare principle, family law, children’s rights.
