The Karnataka High Court in a recent order took note of the growing trend of an estranged or divorced parent targeting the other parent and observed that the Protection of Children from Sexual Offences Act was being used to settle scores in such cases
By Dr Swati Jindal Garg
The order was passed by a single-judge bench of Justice M Nagaprasanna of the Karnataka High Court on a petition filed by a man in response to criminal proceedings initiated by his wife’s ex-husband in the wake of a custody dispute over their daughter. While the petitioner argued that the case had been filed by the ex-husband only to settle scores with his ex-wife, the opposing side argued that in a Protection of Children from Sexual Offences Act (POCSO) case, the presumption is against the accused, and therefore, the truth should be ascertained in a trial. The petitioner, in support of his stance also contended that if the statement of the child, allegedly exploited, was taken again, the truth would come out.
At the time of passing the order, the Court took note of the fact that in a petition filed by the ex-husband seeking custody shortly before he made the criminal complaint, he had narrated the whole life history of the child, but had made no mention of any allegation regarding abuse. “Both the aforesaid contradictory contentions—one being placid and the other being gory if taken note of and juxtaposed with the statement tendered by the prosecutrix—not once but twice—one prior to the order passed by this court, a statement that was tendered earlier, and the examination and cross-examination conducted later, pursuant to the order of this court would completely demolish the allegation against the petitioner…,” the bench said.
Taking into account, the evidence on record and the submissions made by both sides, the Court inferred that this is yet another case wherein an innocent child was being used by her biological father and her mother’s ex-husband in order to settle scores against the mother and her current partner. “It is clearly in gross abuse of the penal provisions by the complainant to settle his idiosyncratic scores with the mother of the child who had left him and married the petitioner. It is unfortunate that the provisions of the POCSO Act which are meant to protect the child from abuse are being misused… Stories are twined to retain the custody or to take custody of the child. If regard is had to what is noted hereinabove, this becomes a classic illustration of what is emerging as a trend called ‘malicious parent syndrome’,” the bench said.
This is not the first time that the courts have taken note of this syndrome. The Kerala High Court too had a few years back ruled that any action performed by one parent with the intent of denying the child’s love and affection for the other parent by alienating the child from him/her constitutes mental cruelty.
The term “malicious parent syndrome” was first proposed by psychologist Dr Ira Turkat in the academic community. He believed the syndrome described a pattern of abnormal behaviour during the divorce process. It is important to note that neither is malicious parent syndrome recognised medically nor do healthcare professionals treat it as a mental illness. There is also no recognised diagnosis in the Diagnostic and Statistical Manual of Mental Disorders. Rather, malicious parent syndrome describes a type of behaviour at issue in some court cases. It has led proponents to call for further study and research.
In cases of malicious parent syndrome, it has been seen that a divorced or divorcing parent seeks to punish the other parent to the best of his/her ability. Sometimes, the offending parent will go so far as to harm or deprive their children in order to make the other parent look bad. Though commonly called “malicious mother syndrome”, both mothers and fathers can be capable of such actions, hence the term malicious parent syndrome.
As described by Dr Turkat, malicious parent syndrome presents four major criteria. Someone alleged to be a malicious parent engages in behaviour that:
- Attempts to punish the other parent by alienating their children and involving other persons or the courts in actions to separate the other parent and child;
- Seeks to deny child visitation, communication with the other parent, and the other parent’s involvement in the child’s school or extra-curricular activities;
- Lies to their children and other persons repeatedly and may engage in violations
of law;
- Does not suffer from any other mental disorder which would explain these actions.
Even though those suffering from the so called malicious parent syndrome appear to be otherwise normal, their unreasonable/ abnormal behaviour is often divorce-related and can also trigger in later custody battles. Such behavioural pattern may also emerge among unmarried parents. Oftentimes, malicious parents engage in excessive litigation in the courts that sees no end. While some behaviour of malicious parents include burning down the house of an ex-spouse or engaging in other criminal acts, others may also indulge in false accusations of abuse against the other parent.
A malicious parent may continue to interfere with the parenting time of the other in subtle, but persistent ways that are hard to identify at first, but ultimately result in disastrous consequences. In their efforts to hurt their spouse, some malicious parents may also end up manipulating their child’s life to such an extent that the prompted child may state they dislike the other parent and may request to spend less time with the other parent when asked by the court. In such instances, the child may refuse to follow the parenting time schedule. They may make a false claim of abuse or neglect by the non-custodial parent.
Many of such behaviours displayed by a malicious parent can have legal consequences that are both civil as well as criminal. These include physically attacking the other parent or damaging their property, or worst still, depriving a child of food or money in order to make the other parent look bad. Examples of violations of civil law include denying court-ordered visitations that also result in contempt of court findings in the family court. Contempt of court may lead to fines and jail time for the offender. Courts may also impose mental health assessments or counselling in such situations. Lying about the acts of the other parent in a way that harms his or her reputation and results in actual injury can also constitute defamation.
Such malicious behaviour not only impacts the parenting plans and custody arrangements as ordered by the courts, but can also set roots for a never ending course of legal battle. Even though the aggrieved parent may file for a modification in the custody and visitation plans, the courts will grant relief only if it is in the interest of the child. A court will carefully weigh evidence that a parent has been involved in alienating, cruel or illegal behaviour and after consideration of such factors, it may order for a change in child custody.
Any aggrieved spouse, if victimised by a person suffering from a malicious ex-spouse may:
- Have custody and support agreements modified.
- Seek court-ordered counselling for the malicious parent.
- Obtain supervised visitation.
There is no doubt that a child deserves the best possible parenting care from both his parents which can only be achieved if both of them co-operate for his best interest. However, it cannot be overlooked that sometimes children too can make an important contribution to forming this syndrome. Some children manipulate conflicts between their parents for the power it gives them in a divorced family situation, otherwise out of their control. Some children also use this opportunity to get more freedom by complaining about the stricter parents to the more permissive parents and capitalising on the permissive parents’ desire for validation.
All said and done, it can indeed be frustrating when a malicious parent stands in the way of the healthy development of his child as it can leave emotional scars on the child for life. Regardless of the cause, children are the ultimate victims of a prolonged, high-conflict divorce process. These children are not only at a greater risk of emotional, behavioural and learning problems typically associated with marital conflict, but are also more prone to turning into abusive personalities themselves, apart from suffering from depression, conduct disorder, destructive behaviour, extreme expressions of hatred, rage, contempt and hostility.
By identifying this problem and taking note of the same at the time of passing of the order, the Court has indeed taken a positive step in raising awareness regarding it. Whether this rising trend will be addressed soon or whether it will only grow with the increase in the rate of divorce will only be seen in the years to come.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi