Couples may separate, but their child/children must be raised with the love and values by both parents. However easy it is to say this, a bitter matrimonial battle always impacts children the most, and in such cases, the family courts are expected to play a crucial role in ensuring the best welfare of the child.
Many a times, Family Courts in India are not trained enough to understand the sensitivity of the matter, and even though ‘welfare of child’ is expected to be supreme, several children of separated parents are raised as semi-orphans.
One particular judgment dated July 2025 from the Family Court in Anantnag has shocked a Child Rights Organisation, and thus Dr Rakesh Kapur, co-founder of BambooTree Children’s Foundation, has penned an open letter to Judge Tahir Khurshid Raina – the author of the child custody judgment.
This July child custody judgment relied upon the ‘wishes of a 10-year-old child’. Should such interrogation of children become the premise of issuing orders/judgments in such delicate matters? Do read the detailed letter below…
OPEN LETTER
Date: 10.08.2025
To,
Hon’ble Chief Justice Mr. Arun Palli
High Court of Jammu, Kashmir and Ladakh
Subject: Complaint and strong criticism of illegal judgment dated 31.07.2025 amounting to child abuse, delivered by Ld. Principal District Judge Mr. Tahir Khurshid Raina, with prayer to withdraw all family court related judicial work from Ld. Principal Judge till appropriate training and counselling is imparted to him
Dear Sir,
I had the distinct misfortune of reading Ld. Principal Judge Mr. Tahir Khurshid Raina’s judgement dated 31.07.2025, wherein Ld. Judge decided 3 (three) petitions related to execution, disobedience and cancellation of order dated 29.10.2024 with regards to compromise deed signed by father & mother of a 10-year old child. Names of litigant-parents have been omitted to protect their privacy.
At the outset, it is primarily due to judgments like these that 4 out of 5 (79%) children crawl out of our family courts ‘semi-orphaned’, that is, they lose not just one parent, but also grand-parents, uncles, aunts, cousins, siblings… and are condemned to be handicapped for life!* In fact, it is on account of judgments like these that our family courts have come to be regarded as centres abetting child abuse and ‘orphaning’ children, thereby robbing our society / country of its greatest asset, that is, our children’s sanity & health.
FACTUAL MATRIX OF THE CASE
From reading of judgment dt 31.07.2025, it becomes apparent that parents (mother & father) had differences due to which they decided to part ways and reached a compromise enshrined in court’s order dated 29.10.2024. It was agreed between both parents that child will be shifted to another school about 3 kms away, father will bear all educational expenses and most importantly father will spend time with his child every Friday. The father frustrated by non-compliance of said compromise approached the court to seek its execution. However, rather than ensuring that the child is blessed with his fundamental right to two involved parents and majesty of law is upheld by ensuring obeisance to court orders, the judgement decided to remove the father from child’s life on account of child’s wishes!
CRITICISM OF THE JUDGMENT
There are multiple flaws, violation of the law and serious errors of commission & omission in the above-mentioned judgment. However, since the ratio decidendi for removing the father from child’s life is based on child’s wishes, as apparent from much emphasised statement in the judgment – “Can this court afford to go against the will of the ward? The answer is big No” – I will restrict my criticism to that only.
*Source: Pan-India survey of legal professionals (lawyers & judges) and FC litigants. Watch Below:
A. Interviewing a Child in Open Court
The judgment states – “Finally, when this case was taken up in the open court, some questions were put to the child in open court, to which he responded very confidently.” – It is truly sickening and ghastly that a 10-year-old child was called and questioned in open court! Not only is this against all established principles of child welfare, is highly detrimental for child’s development, but also illegal. Section 7(1) of Juvenile Justice Act states;
The Board shall meet at such times and shall observe such rules in regard to the transaction of business at its meetings, as may be prescribed and shall ensure that all procedures are child friendly and that the venue is not intimidating to the child and does not resemble as regular courts.
It would be pertinent to point out that preamble of JJ Act states that the Act is made out to codify and consolidate ‘best interests & welfare of children’, the same principle repeatedly quoted in the judgment. It cannot be anybody’s case that either children of separated parents do not need care & protection or that their interests & welfare stand at a lower pedestal than children in conflict with law!
I cannot overstate the number of adults I have interacted with who still have nightmares of their interactions with judges years ago and recount how they felt violated and abused. Therefore, in the process of delivering this judgement, Ld. Principal Judge has not only violated the law, but also done irreparable damage to child’s psyche.
B. Parental Alienation (PA)
The judgment states, “An absolute hatred and condemnation for the father has been noticed by this court in the behavior of child.” and further asks itself – “Why the child is so rude and refuses to meet the father and even to recognize him as his father?” The judgment goes on to answer by stating that it is on account of many years of ‘no-contact’ that the father has become a stranger – I wonder how many children has the court come across who hate ‘strangers’ so vehemently? In fact, research shows that even children living in shelter homes on account of physical / sexual abuse by their parents do not show hatred, but rather still want to live with parents, for it is a well-known, “Children do not know hatred, it has to be taught to them”
It is obvious that such hatred is on account of ‘Parental Alienation’ (PA) – a well recognised form of child psychological abuse, wherein one parent (alienating parent – usually the custodial parent) lies, brainwashes, tutors, poisons the mind of the child against the other parent in order to compel the child to reject any relationship with the other parent (targeted parent). In fact, such extreme hatred is one of the defining ‘symptoms’ of PA, known as campaign of denigration or hostile rejection of parent. I have conducted multiple workshops for judges on Parental Alienation in association with State Judicial Academies, while the Gujarat State Judicial Academy has put it up on its YouTube channel. For the sake of brevity, I would request you to kindly go through the same to understand genesis, symptoms (behavioural manifestations), classification, medium / long-term impact on the child and legal management of PA.
Research by American Psychological Association on ~6,000 children reveals that child psychological abuse leads to long-term outcomes worse than physical & sexual abuse combined! As per landmark ACE (Adverse Childhood Experiences) study, loss of a parent due to Parental Alienation decreases the child’s life expectancy by up to 20 years due to higher rates of suicide, alcoholism, drug addiction, liver diseases, cardiac insufficiency, cancer etc. Let me clarify, it is NOT divorce per se that is harmful for children but loss of a parent (& extended family) due to lies and hatred that condemns them to life-long handicap.
Hon’ble High Court of Madras in its judgment dt 16.09.2022, titled, “V. Anusha Vs. B. Krishnan” [MANU/TN/7182/2022] states;
22 . To turn a child against a parent is to turn a child against himself. Parental alienation is inhuman and it is menace to a child, who direly needs two hands to hold both the mother and father till he/she walks throughout the life or at least till he/she attains majority. In fact, hatred is not an emotion that comes naturally to a child against his/her mother/father unless it is taught by the person whom the children believes. A parent indulging in parental alienation, means, he/she is polluting the tender mind of the innocent child by portraying the mother/father as a villain, which would have a considerable impact on him/her throughout his/her life and he/she develops ill feelings towards the parent and started hating his own father/mother.
The end result of the judgment is the following – the child has lost half his family, half his roots, while the other half is teaching the child to lie and hate! From what angle has the judgment ensured / furthered best interests and welfare of the child?? In fact, the judgment has only abetted child abuse, a punishable offence under any jurisdiction in the world, even more so coming from a judicial officer sworn to uphold the law. The judgment has further given fodder to unscrupulous mothers / fathers to tutor / brainwash their children in order to win egoistical prize in matrimonial litigation, for now they know that our ignorant & helpless judges will bow before the stated wishes of the child, however, ingenuine & influenced they may be!
C. Age of the Child
At a tender age of 10 years, the judgement finds the child to be mature enough to make decisions about his own welfare – which school to attend or which parent to meet!
I wonder if the child refuses to go to school since the teacher chided the child “aggressively” for not doing his homework, would the Ld. Principal Judge banish the teacher from child’s school / life? I wonder if the child wished to drink alcohol, would the court admonish the government for setting 21 / 25 years as eligible age for drinking – after all 10-year-old child knows what is best for himself, as stated with bold emphasis in the judgment – all the petitions (claims) have to fail before the wish of the child!
It is pertinent to note that nowhere in the judgment is there any mention / allegation of any physical aggression or abuse by the father, but rather only an “aggressive” desire by father to change child’s school, which the judgment acknowledges is coming from father’s concern for child’s well-being and upbringing. After reading the judgment, unfortunately, it is not the (im)maturity of the child that is in question, but that of the author.
Most jurisdictions around the world listen to the voice of the child at 14 years (some at 12 years) and that too with a caveat – the child must have a voice but not a choice! The very fact that no where in the judgment there is any legitimate reason(s) mentioned by the child for hating his father – an extremely important behavioural manifestation (symptom) of PA known as “weak & absurd rationalization” – again shows fatal ignorance of child psychology and family dynamics in separated families by the judge.
D. Voice of the Child
Section 17(3) of G&W Act and Section 12 of UNCRC support listening to the ‘Voice of the Child’, however, implicit in that, is, ‘uninfluenced and free’ voice of the child. How can voice of a child who has not spent time with his father and is under influence of his mother bitter against separated father, be considered as ‘uninfluenced & free’? There is a reason why law does not accept testimony given under duress… though an alienated child is worse off than even a truly innocent prisoner. An alienated child is forced to think / love / speak / view his family as per wishes of the alienating parent. Imprisonment of mind is a far greater violation of our fundamental right to life, liberty and expression than even imprisonment of body.
Hon’ble Supreme Court of India vide its judgment, “Vivek Singh Vs. Romani Singh” dated 13.02.2017 [(2017) 3 SCC 231] destroys the very foundation of Ld. PJ’s judgment. In Vivek vs Romani, the father had uninterrupted custody of his daughter from the age of 21 months till date (8.5 years). The child during its interactions unequivocally expressed her wish multiple times to remain with the father, including during her interactions with the court appointed counsellor. Yet, the Hon’ble Supreme Court shifted the custody of 8.5-year child to non-custodial parent for a period of 1 year by stating;
Obviously, because of this reason, as of today, she is very much attached to the father and she thinks that she should remain in the present environment. A child, who has not seen, experienced or lived the comfort of the company of the mother is, naturally, not in a position to comprehend that the grass on the other side may turn out to be greener. Only when she is exposed to that environment of living with her mother, that she would be in a position to properly evaluate as to whether her welfare lies more in the company of her mother or in the company of her father. As of today, the assessment and perception are one sided… Such an assessment, however, can be only after level playing field is granted to both the parents. That has not happened in the instant case so far.
E. Courts ability of decipher ‘Voice of the Child’
Though not specifically mentioned in the judgment, it can be deciphered that the court must have interacted with the child for utmost 30 minutes. It takes trained child mental health professionals 2-3 sessions of 45 minutes each to just bond with the child before eliciting any meaningful information, however, our judicial officers believe that without any foundation in child psychology, in 15-30 mins, they can uncover true wishes of a child living under the influence of custodial parent. I believe this is known as “God-complex”.
It is enlightening to hear Hon’ble Justice V. Ramasubramnian (Madras High Court) in order dated 21.03.2011 in Petition No. A-248 / 2011 titled “S Anand Vs. Vanita Vijaya Kumar”;
In view of the fact that today in all child custody cases, the same problem is cropping up. In 90% of the cases which I have come to handle in the recent past, every other child refuses to go from the parent with whom he is residing, to the other parent. Unfortunately, in most of the cases, we, the Judges plead helplessness, whenever the children refused to go with one of the parents. This has happened especially in cases where the children are aged more than 5 years. Judges, who are not experts in child psychiatry, tend to believe the views expressed by children in their chambers as amounting to “intelligent preference”; though at times they happen to be mere “intelligent manipulations”. In U.K., a service known as “Children and Family Court Advisory and Support Service” (CAFCASS) is available, to assess if the views expressed by children could be regarded as “intelligent preference”
Similarly, Ld. Principal Judge Ms. Laxmi Rao (Bandra Family Court), in her order dated 29.12.2014 in Petition No. A-491 / 2012, titled “Mr. G Vs. Mrs. R” states;
She was insisting that the Court should interview the child before passing any order. However, it is clearly observed by all the Judges in the Family Court and it was discussed during the workshop with our Guardian Judges whether a child was required to be interviewed for granting access. It was unanimously concluded by all concerned that since the child is constantly with the custodial parent, such interviews were immaterial and unproductive as the child was bound to speak as tutored”
Every lay-person knows that paracetamol reduces fever, however, it takes a specialist doctor to inquire in to reason for fever, in order to eliminate the fever. Under Section 12 of Family Courts Act, 1984, it becomes incumbent upon Ld. Family court Judges to either acquire or source that knowledge & skill, through liberal use of medical professionals. [Ref: Sharda Vs. Dharampal by Hon’ble Supreme Court of India, dt 28.03.2003 – AIR 2003 SC 3450]
F. Victim-shaming
Before parting, I cannot fail to comment on the copious dose of sermons given to the father in the judgment, for example;
“He (father) was further asked to give all he wants to his son, silently, unilaterally and unconditionally… Let your child grow in the lap and love of the mother with a sincere blend of unilateral, unconditional, un-annoying and un-disturbing love and care from you as the father.”
In this particular case, it is the child & the father who are the victims of abuse, but rather than providing solace & justice, in his ignorance, the court has indulged in victim-blaming. This is no different than telling a woman who has been raped that she should have dressed more appropriately or not gone out for a movie late at night! With all due respect to the position held by Ld. Principal Judge, it is neither part of his job description nor is he equipped / qualified to provide parenting advice. A child-father relationship / bonding cannot blossom from a distance and I wonder if the court has ever experienced or has the compassion to appreciate the trauma and grief of a father who loses a living son!
Finally, I would urge the Ld. Principal Judge to visit the child, the father and the mother after 10 years to appreciate the impact of his ‘humane’ judgment!
PRAYER
Withdraw all family court related judicial work from Ld. Principal Judge Mr. Tahir Khurshid Raina and refer him for a sensitisation program / workshop on legal & scientific principles that govern “Best Interests and Welfare” of children of separated parents.
This is not on account of any malice towards Ld. Principal Judge, but rather to save hundreds of children from acute ignorance of child psychology, family dynamics and law demonstrated by him, which jeopardises the very future of our society.
I along with my NGO (BambooTree Children’s Foundation) would be happy to conduct a day long workshop for all family court judges in Jammu, Kashmir and Ladakh, focused on legal & scientific principles that govern Best Interests & Welfare of children of separated parents.
Sincerely,
Dr. Rakesh Kapur
Co-Founder: BambooTree Children’s Foundation
E-Mail: bambootreeorg@gmail.com
Copies To:
Mr. Tahir Khurshid Raina (UID No. JK00055), Principal District Judge, Anantnag
through Systems Officer Mr. Showkat Hussain Khan (anantnag-dc@jk.gov.in)
Hon’ble Chief Justice of India Mr. Justice B R Gavai (supremecourt@nic.in)
Hon’ble Administrative Judge Mr. Justice Rajnesh Oswal (rg.jkh@indicancourts.nic.in;
hcjmu-jk@nic.in)
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