Rottweiler Henry with Mahua Moitra. (Image: DC)
Hollywood knows only too well how tangled these cases can become. Boo and Pistol offered nothing but unconditional love to their high-profile owners Johnny Depp and Amber Heard. The two Yorkshire Terriers meant the world to the celebrity couple – until they decided to part ways. The dogs were among the many critical issues in their messy divorce.
And now, in India, it’s Henry who is in the spotlight. Henry who? Well, he is a Rottweiler caught between TMC MP Mahua Moitra and her "ex" Jai Anant Dehadrai.
Chattel or individual with rights?
Kushank Sindhu, Advocate, Supreme Court of India, says a fundamental question that may arise in the legal battle over pets relates to the identity of the pet itself — whether it is considered a chattel or movable property owned by someone, or as having a distinct persona of its own. "If Henry is considered by the Court to be nothing more than a chattel, then naturally, he would be owned by a defined person or persons and the Court would have to look at several factors such as who paid for the dog, the agreement between the parties in relation to the dog, etc. for establishing ownership and terms of ‘use’ of the dog," he explains.
Elaborating, Kushank says if the Court feels that ownership is with one individual and possession with another, then proceedings relating to ‘theft’ may also be initiated if circumstances warrant.
"Because the Indian law in relation to animals appears to operate on a broad spectrum, even though the Court may look at the dog only as chattel, it may still go into issues of cruelty and the conditions in which the dog has been kept," the advocate says.
The Court may also recognise the attachment and bond developed by the concerned parties with the dog and then evolve a mechanism for them to share time with the dog by laying down principles of custody, visitation and expenses, he notes. "Similar terms would have been factored in had there been a marriage between the parties, and the company of the dog would have to be divided between the parties as per an arrangement evolved by the Court," he adds.
Dog Vs. child
If the Court however looks at the dog having a distinct legal persona of its own, the same issues which would be considered during custody proceedings relating to a child would come into play, feels Kushank. In child custody battles, the welfare of the child is paramount. The Court may also summon the child as a witness and ascertain his/her views, besides taking into consideration the ability of a parent to maintain a child.
Why the ‘dog’ fights?
As a pet parent, Archana Naidu Founder, All for Animals Foundation, can vouch that pets reduce stress and anxiety, help ease loneliness and provide companionship to humans. "As pet parents, we have an immense emotional, psychological and physical bond with our pets, sometimes more than we do with our human family. In India, when couples battle for divorce, multiple laws like the Indian Divorce Act and Guardianship Act govern the custody of children, but unfortunately there are no custody laws that pertain to pets," says Archana. Indian law sees pets as property. "Today, the issue of pet custody is not limited to married couples. It has extended to live-in and committed relationships as well, " she notes.
Lawyers, says Archana, assert that the person who adopts the pet, pays for its expenses or serves as the primary care giver has a stronger claim compared to an uninvolved pet parent. "Couples can perhaps take help from lawyers and draft MOUs or a pre-nup agreement that outlines terms and conditions on the adoption of a pet, time spent with the pet by each parent, pet custody in case of a separation, maintenance, veterinary care, daily care needs, insurance premiums, visitation rights, travel conditions etc., to protect the interests of both parties," she suggests.
With social conditions being dynamic, prominent families from politics, business houses and entertainment, fight for custody of their beloved pets. "Perhaps one of them will push for a landmark judgment that can spark amendment of the concerned Acts to cover custody of pets as well. Awaiting that day," smiles Archana.
If Henry (the pet that belonged to TMC MP Mahua and her ex Jai Anant Dehadrai) is considered by the Court to be nothing more than a chattel, then naturally, he would be owned by a defined person or persons and the Court would have to look at several factors such as who paid for the dog, the agreement between the parties in relation to the dog." — Kushank Sindhu, Supreme Court Advocate
The Punjab and Haryana High Court at Chandigarh through a decision dated 31.05.2019 in the case of Karnail Singh vs. State of Haryana, recognised that every member of the entire animal kingdom was a legal entity having a distinct persona. All citizens throughout the State of Haryana were declared to be in loco parentis (standing in the place of parents) for the welfare/protection of animals. Similar directions were passed by the High Court of Uttarakhand at Nainital in 2018 in the case of Narayan Dutt Bhatt vs. Union of India and Others.