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THE IMPORTANCE OF EXPERTS IN CHILD CUSTODY CASES IN INDIA

INTRODUCTION:

The procedure for child custody comes into play when there is a divorce between the parents. And when there is difficulty in deciding the custody of the child, the opinion of experts in this field is considered, for the welfare of the minor which is considered of paramount importance. So, the courts rely increasingly on expert witness testimony concerning child custody cases and by far the most common type of expert witness in child custody cases are mental health professionals, especially psychologists[1].

INDIAN EVIDENCE ACT,1872 ABOUT EXPERTS:

The court sometimes relies on the opinion of experts in different fields to gain furthermore understanding and to take the best decision to deliver fair justice to people. The Indian Evidence Act, 1872 – Section – 45[2] is about the “opinion of experts”, it states that “When a court has to form an opinion about laws related to foreign, or of science or art, or identification of handwriting or finger impressions, the opinions of the persons specially skilled in such fields provide relevant facts. Such persons are called experts. Section – 51[3] means that the expert may provide the experiments that were performed by him to form his opinion. Many experts closely work in assisting the judicial system in providing justice. Some of them include medical professionals specialized in various fields, mental health professionals, and forensic experts, etc., For example, in the case of Dr Jacob Mathew v. State of Punjab[4], a medical negligence case where the Boalm’s test was applied which the report or opinion of two equivalent experts is needed. The Supreme Court put forth some of the guidelines based on the experts.

Thus, the role of experts and the relevancy of the facts obtained by them act as evidence in deciding the judgment of the cases.

CHILD CUSTODY IN THE INDIAN CONTEXT:

After the divorce of the parents, the custody of the child is the subsequent matter which needs to be resolved. It is not only a challenging task but also a significant task to be considered since the future of the child is vested in the decision by the court. There is different religion in India that’s been followed and the appointment of a guardian by the court will be based on those religions accordingly. In the case of Hindus, the Hindu Marriage Act, 1955 section 26[5] deals with the custody of children where it states that the decree must be passed which must be just and proper for the custody, maintenance, and education of minor children. The orders can be issued at any time and override the pending decree within 60 days from the date of service of the notice. The Hindu Minority and Guardianship Act, 1956 mentions that the welfare of the minor is considered the paramount consideration in declaring the guardian[6] and this Act applies only to the biological parents if they are Hindu. In the case of Christians, child custody rights are governed by section 41[7] of the Divorce Act, 1869 where the child-rearing capacity of the parents must be proved. In the case of Muslims, the natural custody of the child vests on the mother until the child reaches the age of 7, after that, the father becomes the natural guardian. In Parsi, the Guardians and Wards Act,1890 governs custody rights. If the parents belong to a different religion, then the Special Marriage Act, 1954 deals with the custody of the child. These are some of the laws that govern the custody of children concerning the Indian context.

EXPERTS IN CHILD CUSTODY CASES IN INDIA:

The family courts are assisted by mental health professionals to provide counselling and child custody evaluations. In these cases, the court-appointed mental health professionals assist the judges in the decision-making process. In the case of divorce, the reports submitted by the counsellors play a great role in understanding the problems of the individual to decide whether divorce can be given or not. In most cases, the courts act on the perspective to save marriages since, in India, the family is considered to be an important institution. Subsequent to divorce is child custody. Regarding child custody, the age of the child is to be noted. So, child psychologists assist children in evaluating their behavioural patterns, and emotions of the child. The evaluations, observations, and assessments are done by these experts and the reports are provided to the judge. The report must not be biased in favour of one party or the other. Ethics and consent must be got before these evaluations. Based on these reports and the preference of the child the type of custody of the child is decided since the well-being of the child is considered of utmost importance.

EFFECTS OF CHILD CUSTODY:

Most of the researchers in psychology agree that children show poor adjustment from divorced families. An analysis of the studies found that the children in joint-custody families showed better adjustment than the children in sole-custody families. Some of the studies found that the boys were well adjusted under the custody of the father and girls in the custody of the mother. The socio-economic status of the parents of the child must also be considered. When the custodial parent doesn’t have a better source of income then that also results in worse consequences[8].

CASES:

In Indra vs B.G.Giri[9], the judges state that there are some points to be considered before the custody of the child, so the court must decide based on the wishes of the child and based on the opinion of a child psychologist or a child welfare worker. Based on this opinion if the court finds it reasonable and just then the child’s custody can be transferred from one parent to the other. In T.S.Ramesh vs Krithika[10], the decision was based on the reports of a court-appointed child psychologist. The understanding of the child, the child’s view on his parents, and the child’s emotions were assessed which acted as a major decision-making factor in this case.

CONCLUSION:

Thus, the importance of experts in child custody cases plays a significant role. Because the future of the child is based on the decisions that will be taken. In order to understand the whole situation the opinion of the experts is important, so the courts appoint a mental health professional to provide a broader understanding of the case, especially about the wish and state of the child. The utmost importance is that the experts who are appointed by the court must be unbiased, and should follow ethics in assisting the court with decisions. In the Indian context, the expert’s opinion is not only helpful in resolving the case but also helps in taking a better decision for the welfare of the child which is considered of paramount importance.

Author(s) Name: Shahana.P (Government Law College)

References:

[1] Mason and Quirk, ‘Are mothers losing custody? Trends in judicial decision making in child custody disputes’ (1997) 31 (2) American Bar Association 215 – 236  <https://www.jstor.org/stable/25740123> accessed 01 December 2022

[2] Indian Evidence Act 1872, s 45

[3] Indian Evidence Act 1872, s 51

[4] Dr. Jacob Mathew v State of Punjab (2005) 6 SCC 1

[5] Hindu Marriage Act 1955, s 26

[6] Hindu Minority and Guardianship Act 1956, s 13

[7] Divorce Act 1869,s 41

[8] Jhon.W.Santrock, Life-Span Development (11th edn, Mc Graw Hill Education 2011) 261-262

[9] Indra v B.G.Giri (2015) 8 MLJ 641

[10] T.S.Ramesh v V.Krithika (2017) 282