Beyond the bench’s gaze: The place of the child’s voice in Indian custody laws

Even though the structural marginalization of child voices remains a significant issue of Indian custody jurisprudence, the voices of children are still overlooked despite constitutional, statutory and international commitments to participatory justice. The principle regarding the best interests of the child has been officially worked into the Indian family law, but the interpretation of the law and the framework of the procedures are still adult-focused, giving priority to the rights of parents and the discretion of the judge over the involvement of children. In this paper, the critical analysis will be given to the disjuncture between the rhetoric of child welfare and the reality of the exclusionary custody practice in India, where the legal approach developed in India will be discussed in terms of the comparative and international frameworks. Based on developmental psychology, constitutional jurisprudence and the interpretation of the international human rights law it illustrates why the ongoing lack of institutionalized systems of child representation, including trained child advocates, formal interview guidelines and participatory adjudicative models is destructive to both the welfare and principal goals. The research proposes legislative changes requiring organized child involvement, setting up of autonomous advocacy strategies and institutionalized judicial training to bring about that the voices of a child are effectively heard in the course of making custody judgments. The shift in judicial discretion into institutionalized participation is not only a reform procedure, but it is an evolution, a process that must be undertaken to bring the constitutional benefits of dignity, equality and participatory citizenship to the children of India.