Author: Neya Dharshini S, SASTRA Deemed to be University
To the point
In this contemporary world, divorces are becoming an emerging trend. Couples, even with children, pursue divorce without considering the future of their children. Their children are often in trouble deciding on the custody. Until entering adulthood, the child must be with their mother, as it is the rule. But what if the child wants to stay with his/her father? This question has not been handled effectively. Without considering the legalities the child will be subjected to, the parents make fast decisions in divorce matters. When the child is given to one of the parents for custody, the child goes through a lot of barriers built on social stigma. If the other parent is aggrieved by the decision of the court in a custody dispute, they make false allegations of abuse about the other parent. These false allegations of abuse in custody will cause psychological distress, along with the legal consequences. They may face
Reputational kill
Psychological distress
Emotional imbalance
Financial burdens
Repetition of litigation
Certain false allegations will have effective consequences, such as harassment of a child, using violent means to control the child, and not providing a peaceful environment for the child to grow. Generally, these false allegations of abuse in custody lead to unlawful delays in the court proceedings, which ultimately lead to pending litigation, which is one of the major problems of the Indian Judicial system. These false allegations could distract the legal proceedings from the merits of the case and consume a lot of time and resources. Since our country is a welfare nation, when the court hears the allegation, it commences to proceed in protecting the child rather than looking into the truth of the allegation. In this article, let us see the legal consequences of false allegations, the method of investigation, the emotional damage to the aggrieved parent, and the methods to seek resolution.
Use of legal jargon
False allegations
In India, custody of the minor child is given to the mother, as she is the first legal guardian, and the courts always consider the best interests of the child. The father can also claim custody, and the court would grant permission to the father to visit the child. When the dispute between the couple is very serious, to avoid unnecessary problems, the court will grant custody to only one parent. If the parents are not available, a guardian can be appointed. The guardian can be the grandparents from either the paternal or the maternal side.
Hindu Minority and Guardianship Act says that, for the welfare of children, a child below 5 years should be given in the custody of the mother, as it is a tender age for growth. While giving custody of the child to the parent, the following factors should be considered.
Personal/Special laws
Any other existing orders or decrees by the competent court
Eligibility of the parent taking the child into custody
Sometimes, when the reason behind the divorce is based on their child and the custody goes to one parent, the other parent may get frustrated and may think of this as a prestige issue. This frustration and the stereotypes in the society may mislead them (the other parent) to make false allegations of abuse against the parent who has taken the child into custody, to quash the custody order, and get the custody back. When the false allegations are crime in nature, the court will immediately take action to protect the child, before checking whether the allegation made is true or false. The common false allegations being made in the custody cases are
Abuse
Emotional threat
Parental alienation
Domestic violation
Administering drugs voluntarily
The abuse includes physical abuse, verbal abuse towards the child or the other parent, and emotional abuse. Emotional threat refers to the threat to the child saying, if you do this, I will harm your father/mother, and makes a child feel emotionally insecure about their existence, and blackmails them. Parental alienation refers to the activities done by the parent, under whose custody the child is, who says wrong and false things about the other parent and makes them a bad person in the eyes of the child, so that the child will stay away from the other parent. This is making the child think that the other parent is an evil person and an alien. Domestic violence is beating up the child and scolding the child using inappropriate language, and cursing the child. Administering drugs to the child refers to forcing the child to consume unethical substances even after the child refuses to consume them.
Why are parents making false allegations?
The parents make false allegations against the parent who has custody of the child. They have personal motives in making false allegations. They can make false allegations for the custody change. When the court knows that the child is being subjected to abuse and assault, the court will immediately withdraw custody from the parent since the courts aim to protect the child and safeguard their interests. The second reason would be wanting them to face legal consequences for any criminal charge, making them pay a fine, and filing a police report against them. Losing trust and damaging the reputation would be the third one. Spreading bad news about the parent in society and telling the same in the court to damage their credibility and thus their position, and their opinion, in future proceedings, will not be considered effectively. When an allegation is made by the other parent, and there is no stability regarding whether the allegation is true or false, the child will get confused and may become emotionally unstable.
How to deal with false allegations?
When an allegation is made by one parent against the other who has custody of the child, the court should order an investigation. The authorised persons, by the court, should conduct a thorough investigation, such as reviewing medical reports of the child, enquiring with the parent as well as the child, and conducting sudden home visits. The judge should not believe the allegation made without any strong evidence, and he/she should check the credibility of the allegation given the current circumstances of the parents’ lives. Until the proceedings are over, the court can appoint a Guardian ad idem, who will act within the scope the court authorised him/her to act. In the meantime, during the proceedings, the court should ensure that the child is safe. The court should calculate the impact created on the emotional health of the child because of these false allegations and exposure to judicial proceedings.
Legal safeguards and remedies
When a false allegation has been made as a complaint without any credible information or evidence, the falsely accused parent, in turn, can file a counter-complaint against the parent making the accusation. Cases can be filed for defamation, perjury, and criminal intimidation. In case an FIR has been filed by the police based on a false accusation, the parent who is being accused has the right to approach the High Court and can plead to quash the FIR. If the parent, having custody of the child, anticipates a complaint against him from the other parent, and arrest can happen, he can apply and get an anticipatory bail from the court under section 482 of the BNSS. If the allegations are proved to be wrong and they are breaching the order/decree of the court, the court can file contempt of court against the person making false allegations. The parent, on whom false allegations are made, should collect evidence in favour of their side. The evidence can include statements of witnesses, a character certificate, and any other evidence as the court may deem fit. An experienced advocate in Family Law can resolve the case quickly and prevent unnecessary delay in the proceedings and diversion from the merits of the case.
Case law
In the case of XXX vs State of Kerala, there was a matrimonial dispute going on between the husband and wife. They both are vigorously trying to get custody of their 3-year-old daughter. The mother complained that the father had sexually abused the daughter by inappropriately touching her private parts, and registered under the POCSO Act, and an FIR has been filed. The father approached the High Court to quash the FIR and the final report made against him. After going through the FIR and the final report, the court discovered that the allegations made against the father are false. The mother said that the sexual abuse had happened in April, but she is reporting about the same only in July. This clearly shows that the mother is using the child as a weapon against the father to get custody. The court thus held that the FIR filed against the father should be quashed. The court also held that legislation like the POCSO Act should not be misused with mala fide intention. Placing a sexual abuse complaint against the father will cause reputational damage and emotional distress, and the court held that these false allegations should not be made as they are delaying the proceedings and are a form of disrespect towards the court.
Conclusion
Therefore, it is evident that these false allegations are causing emotional stress, and they harm the reputation of the other parent. These false allegations are enemies to the court. These false allegations can be prevented by the following.
Clear boundaries and distancing
Supervision
Records in track
Transparent communication
Keeping a safe distance from the child to avoid any problems, and there should be a defined boundary between the parent and the child. The parent meeting the child can allow any supervisor to monitor their interactions to prevent allegations in the future. The parent should keep all the documents relating to the meeting with the child and interaction with the child properly and safely. Open communication will help to solve problems, and so the interaction can happen transparently.
FAQs
How to deal with false allegations of abuse?
To deal with false allegations of abuse, the parent who is being accused should seek legal advice from an experienced advocate in the field of Family Law.
What actions can be taken against the parent accusing?
The accused parent can file counter-complaints against the accuser, such as defamation, perjury, or criminal intimidation, depending on the specific circumstances.
What are the consequences of false accusations?
Reputational damage in society, loss of custody of the child, legal penalties, mental health challenges, and loss of employment are the potential consequences of false accusations.
