Bharati Law Review, April – June, 2018 1

PARENTAL ALIENATION: TIME TO CALL A SPADE A SPADE

Ms. Aruna Gopaldas Farswawani

Abstract
Parental Alienation Syndrome or PAS made its first appearance as
a concept in America, in 1987 when it was studied in detail by Dr.
Richard Gardener. With the increasing number of divorces and
bitter custody battles in India, this problem, hitherto swept under
the carpet, looms large as a serious threat. This article attempts
to define the contours of the concept, the problem it presents and
argues that it is high time for us to recognize the problem and
take corrective steps in the interests of the child. As is the case
with most crises, acknowledgment is the first step to corrective
action. It is heartening to note that the Supreme Court of India
has at long last acknowledged the existence of the problem in the
recent case of Vivek Singh v. Romani Singh. This is but the first
step. Children are the focal point of any matrimonial dispute
involving them. The attempt by one parent to literally “hijack” the
child to his or her side does not augur well for either the child or
the parent. PA or PAS with its many ill-effects needs urgent
attention and corrective action in the interests of all concerned
and the judiciary recognizing it is a milestone of sorts that will go
a long way to ameliorate the wounded and damaged psyche of the
child. The author argues that the legal system has to proactively
deal with this menace in the interests of the child and the
country’s future itself. Recommendations as to how to deal with
PAS have been set forth in this article which ought to be taken
note of by parents and other stakeholders urgently.
Key words: parental alienation, PAS, custody, welfare of the child,
joint parenting
Introduction
The biggest fear that parents have during a divorce is whether the
children will remain unaffected and emerge unharmed. Any
reasonable and empathic parent wants the child to ensure a
healthy relationship with each parent. A deliberate attempt is
made by the parents to reassure the children that no harm will


Principal Judge, Family Court, Aurangabad & Ph.D. Scholar.
Bharati Law Review, April – June, 2018 2

come to them. An attempt is made to avoid division of loyalty and

at the same time try to strengthen the parent child bond amongst
the parents. Parents encourage visits, do not talk ill of the other
spouse in the children’s presence and set aside their own negative
feeling towards each other to ensure that the child suffers no
further distress. Positive feelings towards the other parent are
encouraged and an attempt is made to reduce ill will. This is an
all-round effort, not only by the parents but everybody involved
including the advocates and judges. Parents who seek to separate
are dealing with a delicate balance and any number of factors can
upset this balance. Once there is an upset, one parent tries to
align with the child to the exclusion of the other parent. Thus,
alienation usually begins without any malicious or conscious
intent to harm or destroy the relationship between the other
parent and the children. Though most parents mean well, they are
often unaware of how subtle behaviors and comments can hurt
the relationship between the children and the targeted parent 1.
There is an element of alienation and alienation is a distinct
possibility even in the most amicable of divorces.
Parental alienation can occur when one parent attempts to
‘program ‘and/or ‘brainwash’ a child in an effort to have that child
view the other parent in a negative light, often resulting in the
child expressing anger or hostility towards that parent. When
parental alienation was first defined by Dr. Richard Gardner in
the eighties2, the theory focused on the emotionally abusive
behavior of one parent (the favored parent) against the other
parent (the alienated parent)3. The favored parent was an abusive
parent while the alienated parent was simply an innocent victim.
More recent scholars have revised this definition somewhat,
rejecting the notion that the alienated parent is always entirely
innocent. While the alienated parent must not have been an
abusive parent in order for alienation to be found, alienation may
exist where the alienated parent engaged in behaviors which
would justify some degree of estrangement between parent and
child.

1 Edward Kruk: “The Impact of Parental Alienation on Children”, Psychology

Today, April 2013, https://www.psychologytoday.com/blog/co-parenting-
after-divorce/201304/the-impact-parental-alienation-children, accessed
December 15, 2017.
2 Gardner used the term “parental alienation syndrome” while others have
used “parental alienation”, “the alienated child” or simply “alienation”.
3 A. Richard Gardner: “The Parental Alienation Syndrome and the
Differentiation between Fabricated and Genuine Child Sex Abuse.” Cresskill:
Creative Therapeutics, 1987, p. xii.
Bharati Law Review, April – June, 2018 3

Dr. Gardner explained “the term Parental Alienation (PA) is similar

in meaning to brainwashing, except the motivation for the
alienating parent has both conscious and subconscious or
unconscious components.” Dr. Gardner further explained PAS in
the second edition of his work that parental alienation syndrome
“arises primarily in the context of child custody disputes. Its
primary manifestation is the child’s campaign of denigration
against a parent, a campaign that has no justification. It results
from a combination of a programming (brainwashing) parent’s
indoctrination and the child’s own contribution to the vilification
of the targeted parent.”4
Dr. Turkat of the University of Florida, College of Medicine,
summarizes PAS as “In a nutshell, PAS occurs when one parent
campaigns successfully to manipulate his or her children to
despise the other parent despite the absence of legitimate reasons
for the children to harbour such animosity. The effort to poison
the relationship between the off-spring and the targeted parent
may be extensive and at times, relentless”. 5
PAS has however been dismissed as a junk science by authors
like Holly Smith6 who argue for its exclusion in child custody
cases. Nevertheless, she maintains that PA is a factor to be
reckoned with. She claims alienating behavior does have
ramifications with respect to the best interests of the child. She
has pointed out that no less than 70 authors published a book in
2010 for the inclusion a second proposal of PAS in DSM IV. Both
proposals were excluded from DSM V in May 2013. Thus, at best
PAS is a relationship issue between parents inter se or parent and
child but not a mental disorder, she argues.
However, the author having studied several live cases in the
Family Courts in Maharashtra feels that PAS is indeed a problem
although it has escaped medical classification. PAS may not be a
disease to be diagnosed and treated medically, but the social
effects of this malady make it an issue that requires serious
attention.

4 Id.
5 Ira Turkat: “Parental Alienation Syndrome: A Review Of Critical Issues”,
Journal of the American Academy of Matrimonial Lawyers, Volume 18, at p.
133.
6 Holly Smith: “Parental Alienation Syndrome: Fact Or Fiction? The Problem
with Its Use in Child Custody Cases”. University of Massachusetts Law
Review, Volume 64, pp.: 64-99, 2016
Bharati Law Review, April – June, 2018 4

How alienation occurs?

During the divorce and the consequent custodial battle the hurt
ego or the insecurity of one of the parties’ forms the basis of the
belief that if that hurt parent can somehow gain custody of the
child, a point is made. Therefore, there is a concentrated attempt
to align the child towards one self, convince and brainwash the
child into believing that custody with that parent is in the best
interest of the child and retain custody at all costs. Varied
methods are employed by alienating parents to programme their
children against their spouses. Most methods are capable of clear
perception. There are however methods that are hidden and more
dangerous. Some methods are conscious and willful while other
methods may be subconsciously employed by the alienating
parent.
The non-custodial parent is degraded strategically to injure the
view of the child about the non-custodial parent. This has mixed
results and the child may start hating the custodial parent.
Projection of the non-custodial parent as evil, attempts to
consistently destroy the natural love and affection that the child
has for the other parent, defeat attempts of access by falsely
stating that the child or children are not interested or do not want
contact with the other parent are some of the common methods.
Refusal to answer calls is another the methods adopted. The
aggravation and hostility is increased as reflected in the child’s
repeating the same language used by the custodial parent in the
quarrel with the non-custodial parent, Children are used as tools
of communication of hostile feelings. Another dangerous method
is the removal of non-custodial parents’ contact details from the
school records and misrepresenting that the non-custodial
parents intentions to the school and withholds the school
information to show that the non-custodial parent is not
interested. The grandparents also play a role in promoting PA.
The custodial parent often uses fear of the child as a pretext after
inculcating unrealistic and irrational fears through programming
or brainwashing about the non-custodial parent.
As a result of all this, we can easily find out if alienation has
indeed occurred. The child should be able to give justifiable
reasons for not being able to meet or keep contact with the non-
custodial parent. If the reasons are not justifiable, alienation has
happened. Difference in behavior of the child with the non-
custodial parent in presence and absence of the custodial parent
is noted. The child’s perceptions are inconsistent with what he
observes. The child uses negative descriptive language about the
Bharati Law Review, April – June, 2018 5

non-custodial parent. The child sides with one parent using the
expression “us” versus “him/her”.
Effects of alienation
The effects alienation are many but all of them are adverse. It has
effects that not only affect the child in his childhood but may spill
over to his or her adult life. These, inter alia, include low self-
esteem, depression, drug / alcohol abuse, lack of trust, difficulties
in inter-personal relationships, alienation from own children,
uncontrolled rage, very strong gender bias, violence and
aggressiveness, early pregnancy in girls, truancy, crime, poor
academic performance, social adjustment issues, bitterness,
developing fear and phobias, lack or loss of impulse control, sleep
and eating disorders enuresis and encopresis, damaged sexual
identity, poor peer relationships, excessive Feeling of guilt and
anger are all some effects.
Psychologist Rita Aggarwal in her article (S)Mothering and
Stunting7 states that women who have relationship and career
issues always victimize their children, consciously or
unconsciously. She is of the opinion that parents as adults should
settle their own scores and keep the children away from the
squabbles. Matured parenting requires that the parent sort out
their problems consciously after analyzing their strengths and
weaknesses. They have to forego their egos and stop living lives
through their children. She echoes that parenting “is primarily for
the child and not for the parents themselves”. Parents are for the
child and not vice versa. Citing an example of the effects of
alienation of the father by the mother of a girl child, this author
says that the girl child may “unconsciously begins to fight her
aggrieved mother’s battle against her own father and may never
adjust in her own life with men or her husband when she grows
up. She may develop a conscious or unconscious hatred for all
men in her life and the possibilities of negative effects are infinite.”
The author agrees with the finding of Aggarwal that the mother’s
claim that she is close to the daughter and that is the reason for
sharing her problems is tantamount to abuse of the child’s
innocence and amounts to alienation.
Researchers from the University College, London collected data
from the UK Millennium Cohort Study during 2000 and 2002
have said that the absence of a parent leads to early alcohol,

7 Rita Aggarwal: “(S)Mothering and Stunting”, Hitavada (Women’s World

Supplement), August 29 2009, p. III.
Bharati Law Review, April – June, 2018 6

smoking and substance abuse.8 Another article points out that

the father has a pivotal role to play in the upbringing of the child
and bases the finding on research conducted at the Michigan
State University on 730 families. “Fathers really have a direct
effect on kids, both in short term and long term”, said researcher
Claire Vallotton.9
In the Indian scenario, it is felt that fathers are deprived of love
and affection and quality time with their children by the custodial
mothers on various flimsy pretexts. Although they are neither
unfit nor have un-fatherly characteristics, mothers have
succeeded in their attempts to keep the child away from the
father.10
What ought to be done about PA?
When parents are separated, there is no specific provision in the
statute with regard to contact/access to the child by a parent. By
judicial orders the right of child is exercised on its behalf under
the parens patria doctrine based on the welfare of the child. There
is no legal provision if a parent fails or refuses to perform his/her
duty and be responsible towards the child. It may be due to
neglect from love, care and support, be it emotional,
psychological, social and/or financial. The right of the child to
have love care and affection of both the parents is jeopardized.
This negative power of the parent would justify penal
consequences as it is abuse of power.
Though the legal system has been developing to protect the rights
of the child, the social system has lagged behind and rendered
itself impenetrable to the rights based approach in favor of the
child. The end result is that society still views legal regulation as
merely non-obligatory options. Severe alienation often
accomplished by the overzealous custodial parent is an overlooked
but extremely serious form of child abuse. It is unfortunate that
the law is yet ill-equipped to bring the alienating parent to book.
The non-custodial parent has duties and responsibilities towards
the child. If these are interfered with, it is not a ground for change
of custody considering that it does not affect the child’s best
interests. It therefore becomes virtually impossible for a non-
custodial parent to perform his duties unless substantial evidence
is brought that current custodial conditions are physically and

8 Anon: “Parental Absence May Lead to Early Smoking, Drinking”, Pune Times
Mirror, October 12, 2016, p. 20.
9 Anon: “Dads have direct effect on kids’ development”, Times of India, July
16, 2016.
10 Gouri Dange: “Do not Demonise Dad”, Pune Times Mirror, January 1, 2014.
Bharati Law Review, April – June, 2018 7

emotionally harmful to the best interests of the child and the

rights being violated. This cannot be allowed to continue as the
rights of the child, best interests and welfare of the child are
jeopardized. The custodial parent is abusing and alienating the
child. It is now high time for the Courts to take action.
The Courts can shift the custody on the following grounds:

 Repeatedly not allowing the contact between the non-

custodial parent and the child thereby abusing the child;

 Alienation of affection of the non-custodial parent;

 Speaking in a derogatory or degrading manner about the

other parent or using other tactics to demean the other
parent;

 The custodial parent removes the child to a distant

jurisdiction thereby the child being completely deprived of
physical contact with the non-custodial parent.
In addition, the Court shall not pass a decree for divorce unless
the child or children’s maintenance, education and custody
arrangement is made. The parents should mandatorily file along
with the pleadings a sworn detailed proposed parenting
arrangement/plan for the children. One uniform provision for
consideration of custody and access is the need of the hour. The
final decree, in the absence of agreement of parties to draw up a
parenting plan, the Court should draw up a parenting plan for the
parents. In addition, the author feels that the words
custody/visitation should be replaced with the words primary
residence or has contact/company.
The recent judicial breakthroughs
Recent judgments have dealt with the rights of the child and also
topic of alienation. In Vikas Agarwal v. Geeti Mathur 11 the Division
Bench of the Delhi High Court comprising of Justice Pradeep
Nandrajog and Justice Yogesh Khanna considered Article 39(e)
and (f) in a bitter custodial battle between the parents on divorce.
The father had remarried and the mother had taken away the
custody of the child after the remarriage. Within six months of
custody with the mother, the child became hostile towards the
father. The High Court reverted the matter to the Family Court to
seek the help of a trained person who was a child counselor. The
High Court said that the Family Court was to decide the matter

11 1 (2017) DMC 783 (DB) (Del.).

Bharati Law Review, April – June, 2018 8

only after receiving the report of the counselor and reveal the
truth whether the mother poisoned the mind of the daughter. The
High Court observed that parental responsibility should be shared
equally and that there was a presumption that this would be in
the best interests of the child. “The primary considerations would
be (A) ensuring benefit to the child of having to spend significant
time with both parents to develop a meaningful relationship; and
when there are grandparents, uncles, aunties, cousins etc.,
overnight access so that the child gets love and affection from the
extended family; (B) ensuring the need to protect the child from
psychological harm”. According to the Division Bench, Articles 39
(e) and (f) of the Constitution of India ensured that the child has a
right “to get the love and affection of both parents; right to quality
of life; to be cared and the right to develop a sense of belonging.
In the case of Bindu Philips (represented by her Power of Attorney P
T Philipose) v. Sunil Jacob12 where the mother who was residing
abroad sought custody of the two children agreed for access and
by consent the husband also agreed to give access. The Apex
Court has made certain interesting observations and asked the
parents “to maintain cordial relations in front of the children and
avoid happening of any kind of untoward incident or/and avoid
exhibiting any kind of unpleasant behavior in their verbal
exchanges. Both must realize that such incidents, if occurs and
witnessed by the children, it would cause more harm to children
and affect their innocent minds. They may even loose respect for
their parents. ....” “Object of the meeting is to allow the children to
meet their mother in a most dignified, congeal and happy
atmosphere”. The Court said that the husband should ensure that
such meetings bring some kind of happiness to the children and
their mother. The husband for his selfish interest should not try
to tutor the children something adverse about the mother, instead
he takes positive initiative in telling the children about their
mother specially coming to India to meet them and that the
children should welcome her and spend some good time with her.
“In our opinion both should equally realize that the children were
deprived of the company of the mother without their fault but only
due to parents infighting, who failed to realize the adverse effects
of their fighting on the children upbringing. The infighting has
equally deprived the members of the family, individually and
collectively to enjoy the happiness, peace and harmony. In our
considered view, both must further realize that the children need
love and affection of mother and father constantly and not
individually because it is the parents who are responsible to bring

12 AIR 2017 SC 1522.

Bharati Law Review, April – June, 2018 9

their children in this world. Both must realize that mother cannot
perform the role of a father so is the father who cannot perform
the role of the mother. So far as the mother’s role to towards her
child is concerned, it is more pivotal because she gives birth to
her child. She is, therefore, capable of giving more love, affection
and good training to her child”, the Court concluded.
In Vikram Singh v. Romani Singh13 the Supreme Court while
dealing with case concerning the custody of a minor girl Saesha
Singh who was not even 2 years of age when the battle began, the
husband had driven the wife out of the house on 04.08.2010. The
mother wanted to take the child along with her but was not
allowed to. After various efforts were made she filed a petition on
26.08.2010. The trail court held that the father was fit person to
retain the custody and dismissed the mother’s petition. The High
Court allowed the appeal and gave custody to the mother and
overnight visitation rights to the father. The father who had not
complied with the directions of the High Court was in contempt
and in consequence the custody remained with him.
Noticing that the child was now 8 years old, the Court ruled that
“she is at a crucial phase when there is a major shift in thinking
ability which may help her to understand cause and effect better
and think about the future. She would need regular and frequent
contact with each parent as well as shielding from parental
hostility. Involvement of both parents in her life and regular
school attendance are absolutely essential at this age for her
personality development. She would soon be able to establish her
individual interests and preferences, shaped by her own
individual personality as well as experience. Towards this end, it
also becomes necessary for parents to exhibit model good behavior
and set healthy and positive examples as much and as often as
possible. It is the age when her emotional development may be
evolving at a deeper level than ever before. In order to ensure that
she achieves stability and maturity in her thinking and is able to
deal with complex emotions, it is necessary that she is in the
company of her mother as well, for some time. This Court cannot
turn a blind eye to the fact that there have been strong feelings of
bitterness, betrayal, anger and distress between the appellant and
the respondent, where each party feels that they are 'right' in
many of their views on issues which led to separation. The
intensity of negative feeling of the appellant towards the
respondent would have obvious effect on the psyche of Saesha,
who has remained in the company of her father, to the exclusion

13 AIR 2017 SC 929.

Bharati Law Review, April – June, 2018 10

of her mother. The possibility of appellant's effort to get the child

to give up her own positive perceptions of the other parent, i.e.,
the mother and change her to agree with the appellant's view
point cannot be ruled out thereby diminishing the affection of
Saesha towards her mother. Obviously, the appellant, during all
this period, would not have said anything about the positive traits
of the respondent. Even the matrimonial discord between the two
parties would have been understood by Saesha, as perceived by
the appellant. Psychologists term it as 'The Parental Alienation
Syndrome’. It has at least two psychological destructive effects:
(i) First, it puts the child squarely in the middle of a contest of
loyalty, a contest which cannot possibly be won. The child is
asked to choose who the preferred parent is. No matter whatever
is the choice, the child is very likely to end up feeling painfully
guilty and confused. This is because in the overwhelming majority
of cases, what the child wants and needs is to continue a
relationship with each parent, as independent as possible from
their own conflicts.
(ii) Second, the child is required to make a shift in assessing
reality. One parent is presented as being totally to blame for all
problems, and as someone who is devoid of any positive
characteristics. Both of these assertions represent one parent's
distortions of reality.
The Court ruled that “the aforesaid discussion leads us to feel
that continuous company of the mother with Saesha, for some
time, is absolutely essential. It may also be underlying that the
notion that a child's primary need is for the care and love of its
mother, where she has been its primary care giving parent, is
supported by a vast body of psychological literature. Empirical
studies show that mother infant “bonding” begins at the child's
birth and that infants as young as two months old frequently
show signs of distress when the mother is replaced by a
substitute caregiver. An infant typically responds preferentially to
the sound of its mother's voice by four weeks, actively demands
her presence and protests her absence by eight months, and
within the first year has formed a profound and enduring
attachment to her. Psychological theory hypothesizes that the
mother is the centre of an infant's small world, his psychological
home base, and that she “must continue to be so for some years
to come.” Developmental psychologists believe that the quality and
strength of this original bond largely determines the child's later
capacity to fulfil her individual potential and to form attachments
to other individuals and to the human community.”
Bharati Law Review, April – June, 2018 11

In Firoza Popere v. Usha Dhananjayan 14 the Bombay High Court

was dealing with a case where the paternal grandmother (Muslim)
and the maternal grandmother (Hindu) wanted guardianship and
custody of the minor child Zeenat. Her mother had converted to
Islam and the father was found guilty of the murder of his wife
and had filed a mercy petition against his death sentence in the
Court of Dubai. The High Court considered allegations of sexual
abuse by the maternal uncles. The Court observed that the child
was tutored and there were feelings of ill will created against the
maternal side, the right to live with dignity, the right to preserve
childhood and the human rights of the child are “contemplated
within the right to life under Article 21 of the Constitution of
India” and this right super seceded the right to religion under
Article 26 of the Constitution of India. The Court further observed
that “The child is innocent, rather innocence is itself the
inseparable from the child, thus, the welfare of the child very
much includes protection of innocence of the child. To be innocent
is itself the fundamental right of the child.”
Recommendations

 Joint custody
Both parents have equal duties and responsibilities in the life and
development of the child. The child is not a property to be divided
and shared. Therefore a joint parenting responsibility is important
in the best interests of the child. Thus, joint custody. Mother and
Father, both being natural guardians, the constructive and legal
custody remains with the non-custodial parent but physical and
actual custody rests with the custodial parent.
Be it mother or father, a child needs both his parents as strong
pillars of support. Today, equations are slowly changing. Some of
the working mothers, at the cost of their career, economic
independence and freedom from abusive marriages, give up the
custody of the child. The father is willing to accept the custody. In
some cases, the fathers are dependent on their own mothers or
extended family members like sisters or sisters-in-law to take care
of the child.15 In many cases the fathers themselves are
performing their parental duties well. 16
Many a time on separation, each parent is overprotective of the
child as a result social values are not properly inculcated in the

14 F.A. 1118/2014, High Court of Bombay, 2017 SCC OnLine Bom. 9059.
15 Angona Paul: “Bringing Up Baby”, Pune Times Mirror, May 8, 2016.
16 See Sharmila T. Ganesan: “Marriage Ends, A New Bond Begins”, Times of
India (Pune), May 8, 2016.
Bharati Law Review, April – June, 2018 12

child. Parents expect the child to follow certain rules and keep
certain standards but until the parent himself or herself follows
the rules compliance from the child cannot be expected. Parents
are role models who the children tend to imitate
The custodial parent should be willing to allow the joint
responsibility of the non-custodial parent rather than taking the
entire responsibility on oneself. The non-custodial parent should
be a responsible parent in all respects. Especially, if the non-
custodial parent is the father, he should be responsible to
maintain his child, take interest in his education and extra-
curricular activities and be there for the child as a father to meet
the emotional and social needs of the child. The non-custodial
parent should plan the schedules of his work accordingly so as to
not miss the meetings with the child. The child most of the time
eagerly waits for the parent to come and spend qualitative time to
enjoy the company of the parent. When there is no advance
intimation of not meeting the child and the non-custodial parent
does not come the child is mentally disturbed, disappointed and
depressed. Especially fathers just drop the meetings with the child
without reason or intimation. Such fathers should be taken to
task for non-compliance of the Court orders. Likewise, the
mothers who on one pretext or another do not bring the child to
meet the father, they should also be taken to task. Neither parent
can play with the emotions of the child. If they do so each one in
his or her own way is abusing the child and can be said to be an
unfit parent. According to the researcher, such a parent should be
sent to an orphanage home for services for six months to
understand the plight of the orphan children.

 Time bound disposal of custody cases

Justice A.K. Sikri in a recent judgment 17 regarding the custody of
a 16-year-old girl ruled that she had enough comprehension of
her own best interests. The custody was granted to the Appellant
Father in this case. The mother expressed her inability to move to
India even for a year for the Court to consider giving custody to
her for that period. The Court ruled that it was risky for the
custody to be shifted to the UK where the mother lived especially
since the daughter expressly stated that she does not want to go
to UK. The Court also found that although two months’ time was
given to the mother to attempt to build a bond, the mother had
failed and thus the custody was to continue to remain with the
father.

17 Jitender Arora and Others v. Sukriti Arora and Others, AIR 2017 SC 957.
Bharati Law Review, April – June, 2018 13

This is a classic instance of a case where time has played a vital

role in determining which parent will have custody. The child in
question was eight-and-a-half years old when the High Court by
its judgment in May 2010 directed the father to hand over the
custody to the mother which came to be stayed by the Supreme
Court in June 2010 and that stay remained in operation and the
custody remained with the father till judgment was finally
delivered by the Apex Court in February 2017 when the daughter
was 16 years old.
Time is the essence in custody litigation. When the child is in the
age group of 3-7 years and if his contact is lost with the other
parent, then in the later years it is difficult to build it up. Judges
either pass orders of status quo or give a limited access time of an
hour or two every fortnight. The child is lost and confused as the
child builds up the bond, the time plays its game. The custodial
parent uses this time in her favor to start the programme of
alienation. Custody petitions are pending for three years or more
depending on the intensity of the parties and their advocates to
litigate. Normally, interim access orders are passed by the Court
and thereafter this order becomes the turning point of the
litigation as in most cases this interim order is disobeyed by the
custodial parent. The Court is quick in passing interim injunction
or restraining order against the non-custodial parent without any
proved evidence on record.
Till the completion of the trial, the child has aged and evidence on
record may have become irrelevant at that given point of time. The
custodial parent having the primary custody of the child with the
passage of time, the campaign of alienation would be deeply
rooted and the child will be moving from moderate to severe
category of alienation. The Court will interact with the child. The
child will protest or refuse to be with the alienated parent. The
bonds between the non-custodial parent and the child are
severed. A case in point is Ram Murthi Chopra and Another v.
Nagesh Tagagi18 the order of status quo was passed at the time of
admission of the appeal and at the final hearing which was 12
years later, the child did not want to see the face of the non-
custodial father. In this case, if the order of status quo had not
been passed and the access of the child with the non-custodial
parent was continued, the bond may have remained intact. It was
always possible for the advocates to have convinced the Court that
the child and parent needed counseling and sufficient time would

18 Ram Murti Chopra and Another v. Nagesh Tyagi, CM (M) No.752/2000 dt,
25.9. 2008 [Unreported].
Bharati Law Review, April – June, 2018 14

have been given for a report. This would have prevented

alienation. This is a fit case to understand the importance that
time is the essence in custody litigation.

 Role of advocates to be curtailed

Children from the age group 6-14 years in India are seen to be
alienated from the non-custodial parent. The custodial parent
shifts the burden upon the child, submitting that it is the child
which is not willing to meet the non-custodial parent. This is
parental alienation. The Court needs to see that the child spends
more time with the non-custodial parent for the child to realize
that the alienated parent is not dangerous as informed. The living
experience with the non-custodial parent will demonstrate the
same but there are no orders of any Court for transfer of custody.
Most of the time, at this juncture, a counselor is appointed by the
Court, such other orders are easier for the Court to pass than
transfer of custody. Injunctions or any such restraining orders are
not passed against the custodial parent. Even if the Court informs
the alienating parent that disobedience will amount to contempt
of court but rarely implement any such action. The alienating
parents are aware of the fact that they can violate such order with
impunity. They know they can get away with it. To ice it up, the
advocates support the custodial parents. Advocates play a major
role in these cases. They encourage alienation.

 Role of the parents

The child is made to join various coaching classes or other
activities and made to live a life bound to a clock. His entire
childhood is taken away as there is no free time to enjoy, play in
the open or spend quality time with the parents or extended
family members. The working parent instead of spending time
with the child, cannot blame the children as the parents
themselves do not have time for oneself or have forgotten their
own childhood, compensate the child with gifts like mobiles, video
games, tablets and other gadgets. In this bargain the child has no
one to share his thoughts, the lack of quantity time and attention
from parents results in poor mental health of the child. The child
becomes anxious, insecure, confused and aggressive. The children
are used as punching bags by the parents to vent their anxieties.
In the bargain, the child is either abused or pampered. The parent
to win over the child, be it custodian or non-custodian, pampers
the child so much that he is not prepared to take “no” as an
answer and there is emotional blackmail from either side.
Bharati Law Review, April – June, 2018 15

If at an early age, the child is unable to share and narrate as to

what is happening in the school or his surroundings, as he grows
he will not like to share his happy and sad moments, joys and
problems. This sows the seeds for dysfunctional behavioral issues.
This confuses the parents as they are not prepared to meet such
issues.
If the custodial parent is the mother, like in most of the cases, she
does not allow the father to come in contact with the child. He is
threatened of police complaints. The parents and other members
of the custodial parent’s family intervene to support her. The child
does not understand this scenario but is only aware that the
father is not in contact. He misses his father but is not vocal
about it. He overhears and records the conversations against the
father that are taking place in the family. The child grows with
this information, with these allegations and notions against the
father that the father is a “bad” man. The child is unaware that
the father for no fault of the father is being restrained from
meeting the child. Likewise, when the custodial parent is the
father, the child may be unaware of the fact that the mother is
restrained from entering the house, is threatened and abused and
restrained from making any attempts to contact the child for no
fault of hers. The child is lost as he misses his mother. The same
strategy to speak against the mother and label her as a “bad”
mother and woman is made. The child grows with these feelings
towards the mother.
These feelings attain permanence specifically when the child feels
the need of the other parent and finds such other parent absent,
not knowing the cause of absence, At times the custodial parents
take away the child to a distant place where the other parent is
unable to trace him/her. The family members refuse to inform
the whereabouts. By the time the child is before the Court or
counselor a mindset has been prepared not to see the other
parent or look at the other parent. The brainwashing is complete.
Such a child need not be tortured. There is no love and respect for
the other parent. At times the damage is to such an extent that
after counseling when the couple agrees to reconcile. The child
refuses to live with the other parent. In these circumstances, the
child becomes the obstructionist for the reconciliation of his own
parents. In such situations, the parents are counseled to reconcile
for the child to be assured of a cordial relation. The child is then
slowly brought to the house, initially for the day, then overnight
followed by weekend and so forth. Till then the child continues to
reside with the family members of the custodial parent.
Bharati Law Review, April – June, 2018 16

When there are siblings living together, the younger will follow the
older one. At times the siblings are separated with the parents
and thus there is no bond between them. In some cases the child
expresses that his other parent was not there for him when he
needed the parent and now why the said parent wants to have any
contact with him/her.
Earlier there was joint family system where the children grew up
under one roof. They were under the care and protection of all
family members. Now there being nuclear family system, in some
cases the children are only with their parents and are more
attached to their maternal grandparents. Only those who have
lived with paternal grandparents may be attached to them but on
separation ill feelings are developed against the grandparents.
Conclusions
PA and PAS have disastrous effects on the child. These effects
even spill over to adulthood and an alienated child has lifelong
issues. Joint parenting has emerged as one of the best remedies
for Alienation.
The moment that the couple is promoted to parenthood, they have
to understand and realise that parenting means to protect the
rights of the child and perform their responsibilities and duties
towards the child as they cannot be self-centric anymore but have
to be child-centric. On separation both parents have to jointly
perform their respective roles towards the child as neither can
step into the shoes of the other. Joint custody and parenting
plan/arrangement would always be in the best interest of the
child, protecting its rights.
A sound parenting plan is also another essential to reduce the ills
of alienation. Efforts have been made in Maharashtra and the
Draft Guidelines for Child Access and Support have been
prepared by the Maharashtra Judicial Academy. The Parenting
Plan has been approved by the Bombay High Court.19 Other High
Courts like Himachal Pradesh, Madhya Pradesh and Karnataka
have followed suit.
Shared or joint parenting may soon become a reality and find
place in the law books if the Consultation Paper on Adopting a

19 http://cja.gov.in/Important%20Instructions/Child%20Access%
20&%20Custody%20Guidelines%2001.06.2015.pdf, accessed on December
15, 2017.
Bharati Law Review, April – June, 2018 17

Shared Parentage System in India which was released by the Law

Commission in November 2014. 20
In matters of custody, the Courts cannot have continued
supervision of parenting after the judgment. It is the Child Welfare
Department of the State which should have its own system of
supervision of the welfare of the child, in the home he primarily
resides and/or residing in the house of the non-custodial parent
during contact period, The Social Welfare Officer of the state
department has to continue to have regular and continuous visits
for the appraisal of the child’s wellbeing and accordingly submit
reports to the department as to the compliance in letter and spirit
of the custody orders of the Court, If the Social Welfare Officer for
some reason finds and records and reports that the order as
intended by the Court has not been implemented for the welfare of
the child, the Department should be statutorily authorized to
approach the concerned Court to reconsider the order as per the
findings in the report. This means that the State through the
concerned department which ultimately enjoys the parens patria
jurisdiction must discharge its constitutional duty of preserving
and protecting the welfare of the child. This is merely another way
of saying the state qua executive cannot dump its administrative
responsibility to secure the welfare of the child upon the Courts as
if the State has no role to play in the matter. The Child Welfare
Department has to take up from where the Court leaves off.
REFERENCES

Books and articles

 Angona Paul: “Bringing Up Baby”, Pune Times Mirror, May 8, 2016.

 Anon: “Dads have direct effect on kids’ development”, Times of India, July 16,
2016.

 Anon: “Parental Absence May Lead to Early Smoking, Drinking”, Pune Times
Mirror, October 12, 2016.

 Edward Kruk: “The Impact of Parental Alienation on Children”, Psychology

Today, April 2013, https://www.psychologytoday.com/blog/co-parenting-after-
divorce/201304/the-impact-parental-alienation-children, accessed December
1, 2017.

 Gouri Dange: “Do not Demonise Dad”, Pune Times Mirror, January 1, 2014.

 Holly Smith: “Parental Alienation Syndrome: Fact or Fiction? The Problem with
Its Use in Child Custody Cases”. University of Massachusetts Law Review,
Volume 64, 2016.

20 http://lawcommissionofindia.nic.in/Consultation%20Paper
%20on%20Shared%20Parentage.pdf, accessed on December 9, 2017.
Bharati Law Review, April – June, 2018 18

 Ira Turkat: “Parental Alienation Syndrome: A Review of Critical Issues”, Journal

of the American Academy of Matrimonial Lawyers, Volume 18.

 Richard Gardner: “The Parental Alienation Syndrome and the Differentiation

between Fabricated and Genuine Child Sex Abuse.” Cresskill: Creative
Therapeutics, 1987.

 Rita Aggarwal: “(S)Mothering and Stunting”, Hitavada (Women’s World

Supplement), August 29 2009.

 Sharmila T. Ganesan: “Marriage Ends, A New Bond Begins”, Times of India

(Pune), May 8, 2016.

Cases

 Bindu Philips (represented by her Power of Attorney P.T. Philipose) v. Sunil

Jacob, AIR 2017 SC 1522.

 Firoza Popere v. Usha Dhananjayan, F.A. 1118/2014, High Court of Bombay,

2017 SCC OnLine Bom.9059.

 Jitender Arora and Others v. Sukriti Arora and Others, AIR 2017 SC 957.

 Ram Murti Chopra and Another v. Nagesh Tyagi, CM (M) No.752/2000 dt,
25.9. 2008 [Unreported].

 Vikas Agarwal v. Geeti Mathur, 1 (2017) DMC 783 (DB) (Del.).

 Vikram Singh v. Romani Singh, AIR 2017 SC 929.

Sources from the web

 http://cja.gov.in/Important%20Instructions/Child%20Access%20&%20Custo
dy%20Guidelines%2001.06.2015.pdf, accessed on December 15, 2017.

 http://lawcommissionofindia.nic.in/Consultation%20Paper%20on%20Shared
%20Parentage.pdf, accessed on December 9, 2017.

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