The District Family Court was already half full with people, plaintiffs, respondents, and lawyers in their black robes. Perhaps a number of cases have been lined up for hearing today – the court clerk was busy as hell.
The court bailiff had announced the name of the plaintiffs and respondent with, “Amrita Agarwal, hazir ho…” and “Avinash Rajput, hazir ho…”
I looked at the plaintiff. The first thing that struck me was her beauty. Everything about her was good, if not perfect. Fair complexion, classic oval face with thin lips and slim nose, dark hair with streaks of auburn, eyes covered with shades as if she was a celebrity. She had an air about her that was accentuated by the expensive perfume she wore, that could have been Salvatore Ferragamo, Carolina Herrera or Gucci.
The respondent had a contrasting look in comparison. Receding hairline, a not very athletic body and a sad grim face on which perched a pair of spectacles. He was wearing a light blue check-shirt and dark blue office trousers over a pair of black leather shoes.
Both the plaintiff and the respondent sat on either side of the chairs in the first row. Besides the respondent was a young boy of about 10 years, who sat on the inside of the row. He looked a bit terrified and at times unconcerned. His eyes were moving around taking in the scene. The respondent had his arms on the shoulder of the boy and the boy had his head held close to him.
The District Civil Judge Shankar Muthuraman held me and gave a few hard hammerings on the round block of wood placed on the table, “Order…order…” he continued, “Proceed with the case.”
I recalled today was the final hearing of the case.
In the earlier hearing the counsel for the plaintiff, Advocate Himmat Ray had briefed the court with the case in his opening statement.
Some of the bits of his speech were, “The plaintiff Amrita Agarwal had a love marriage with the defendant Avinash Rajput much against the wishes of her parents.“
“After three years of happily married life, they had a male child Anurag.
“Unfortunately when the child was three years old, he was diagnosed with Asperger’s syndrome, a form of Autism Spectrum Disorder, which has no known cure. The child is unable to make any verbal communication while exhibiting all symptoms of Autism. As non-verbal autism affected child he was later taken off from regular school and admitted in a special school.
“The parties were divorced two years back. The plaintiff did not demand the custody of her child as she left for abroad in the course of her employment.
“Now, the plaintiff wants the custody of her only child, as she thinks she can better look after the child. The defendant doesn’t have any job or resources to give the child the amenities and the kind of life he deserves.”
The counsel Himmat Rai had then produced several witnesses including Child Development specialists who had opined that Germany where the plaintiff had now taken residency, offers a better standard of life and are more disability-friendly country. The standard of life is much better.
He then proceeded on to highlight the income disparities between the parties. What the plaintiff earns in a week as a software engineer, is what the defendant earns in a year, having no regular job.
In the course of arguments, the learned counsel produced several documents too.
His arguments would convince any sane person to immediately hand over the child to the mother and make such things a punishable offence for the father. The Counsel had almost led the Court to consider it a ‘prima facie’ case, short of a behest on ‘balance of convenience’.
Today was the turn of the defendant’s counsel. She was a lady by the name of Deepika Bhardwaj. I was eager to see how she would help her client get the custody of the child.
Advocate Deepika Bhardwaj began with, “… and I wish to remind the Hon’ble Court that while responding to the summons, my client has also filed the response to the court. In addition, my client has also filed a counterclaim for custody…”
Now, this was a brilliant move. In case the instant case is withdrawn for any reason by the plaintiff, the court will still have to decide on the counterclaim of the defendant.
“Your Honor, my fellow Counsel has already presented the case well. However, it is just one side of the story. Without being judgmental on the plaintiff’s conduct and relationship with the defendant and their child, I would like to bring to light the other side of the case.”
“My client supported the plaintiff in all her decisions. She wanted to work, but the child needed constant care of a parent. So my client decided to afford all opportunity to the plaintiff to achieve her ambition. Being an alumnus of the prestigious IIT, my client could have easily continued his high-paying job or could have taken up other opportunities.
“His family and the child being his priority in life, he chose to become a stay-at-home father. The plaintiff got into a job and after a few years decided to take divorce from her husband.
“She got an opportunity for an overseas position for two years. After divorce she did not seek custody of her child as this would be a hindrance to her career at that time.
“An autistic child needs care and devotion which my client had been giving through the years. They are different from other children and more than the usual motherly love, they need attention and care which a learned and dedicated parent like my client can give.”
She then proceeded on to produce her witnesses, who were professionals and practising child psychologists from the Autistic Help Society. Her witnesses explained the symptoms of Autism Spectrum Disorder and endorsed the fact that such children have problems in responding to social situations, communicating with others, making eye contact, understanding gestures and body languages, and even emotions of others. They dislike changes and like to be involved in the same activity.
I could see that her pleadings and the technical stuff failed to make an impact on the those present in the Courtroom, as they waited for her arguments to get over.
She then pointed out that since the child is over 12 years, he has the right to choose with which parent he wants to stay.
The counsel for the plaintiff, Himmat Rai, was quick to take up this offer. He requested the Court to let the child choose his custodial parent.
I could see the defendant and his counsel discuss amongst themselves. The child looked on at them without any emotion. His blank stares went around the courtroom.
Moments later the Court bailiff arrived to take the child to the witness stand. The child held on to his father and refused to be taken away. The father, his eyes moist and his face sad and forlorn, cajoled the boy to go “with the uncle”.
I was wondering what the child would say if he can’t even speak. The child wanted to get away and with great difficulty, he was brought to the stand. He kept looking at everyone with fear and dread.
Judge Muthuraman asked him, “Master Avinash, whom would you like to stay with? Your Papa or Mummy?”
The child did not make any eye contact, but gave him a fleeting glance and continued to look around.
The Judge repeated his question two more times, with the same result. Finally, he asked the Court bailiff to go close to the child and ask him again. The child did not respond.
The Defendant’s counsel intervened, “Your Honour, the child cannot speak, That is why he needs to be handled and looked after by someone who can sacrifice his ambitions and comfort for the child’s well-being. May I take the child from the witness-box now.”
As she proceeded to bring the child, the child looked around and kept muttering softly, “Pa… pa….. pa…pa….”
When the child was united with father, he dug his face on his father’s body and clasped him firmly as if not to let anyone take him away.
It was time for delivering the judgment. Knowing Judge Shankar Muthuraman well, I knew whose goose was cooked. The Hon’ble Judge had no room in his conscience for giving anyone ‘the benefit of doubt”. His convictions, no pun intended, were so strong that once he has formed his opinion, it was almost impossible to shake him out of it.
His picked me and hammered me on the table. Then he announced his judgment. It did not shake me when he observed, “…. The custody of the child is given to the mother despite the child being above the age of Nine, because the child is not able to express explicitly his preference of the Parent. Furthermore, as cited in the case referred, as the Hon’ble Supreme Court has observed that ‘a child is not a pawn in the game of litigation between parents to be tossed from one side to another as a chattel’, the welfare of the child is of paramount importance which shall be best served …”
He also announced, “I also appoint an Amicus Curiae to oversee the change of custody. The defendant shall hand over the child and his personal effects including relevant documents and certificates to the Amicus Curiae within three days, as the plaintiff will leave for abroad to continue her employment.
“The Plaintiff can work out amicably the visitation and other rights as usual, till the child attains the age of majority.”
He then added, just like an annexure, “Both parties shall bear their own costs. The copy of the Judgment shall be available within two days….”
The case was over and the court had adjourned.
As the Courtroom was becoming almost empty, I could see the father-son huddled together on the chair, oblivious of the world.
Advocate Deepika Bhardwaj stood near them, “Do not feel so sad. We will appeal in the higher court.”
“But this will not prevent them from taking my son away within three days…” the desolate father heaved a sigh of hopelessness and grief.”
He held his son close to him and then they began walking slowly towards the exit.
Courts are there to dispense justice, but I have experienced several such moments when the courts have dispensed with justice.
Busy as I am with life and so many court cases each working day, I would have dismissed this particular case from my memory. But for the haunting face of the child who looked so innocent as a six-month-old baby. His angelic face would startle me as I thought of the grief-stricken father who chose to stay home with the child, sacrificing his job and career.
However, there was another reason that this case got etched in my memory.
After a fortnight or so, Judge Muthuraman came to the court with a folded newspaper which he placed on the table. The small news item next to the Solus ad on the right bottom corner, caught my attention.
Unemployed Lonely IITian S/W Engineer Commits Suicide
Noida: The Police discovered the body of Avinash Rajput, a software engineer, who was found hanging in his flat. The deceased was an IITian, who left employment at Adobe and was an at-home father for his son. He lost the custody of his child to his ex-wife who has settled in Germany. The Police also found a suicide note saying that he is taking his own life and no one should be made responsible for it.
- This story is written from the POV of the Gavel, a small ceremonial hammer or mallet with a handle, made completely of wood. It is generally placed over a small circular flat piece of wood on which it is struck. The base prevents the gavel hitting the table surface and damaging it. It is used to restore order and call attention of those present in the court. This tradition is no longer much in vogue today in Indian courts.
- This is a work of fiction. Any resemblances to a living or dead entity, or any court cases are purely coincidental.
- The proceedings of the Courts and reference to Court judgment are only illustrative and do not purport to be a true and realistic account. These are presented purely for academic/entertainment purpose and do not intend to present any contempt of judicial proceedings.
- The provisions of Acts consulted were:
– The Guardians and Wards Act 1890
– Hindu Minority and Guardianship Act 1956
This is an entry for #TheTrial, a Claws Club exclusive event for #Legends-4.
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Photo by Naassom Azevedo