Custody & Guardianship Rights of Pets

By Aditya Pratap, Lawyer in Bombay High Court

Millennials Today prefer adopting pets rather than having Children. Adopting a “fur baby” together is now considered the first step in a serious relationship. But what happens after a breakup or divorce, who gets to keep the pet? 

Indian Laws regarding pet custody

Indian law makes no provision for how courts are to decide who gets the custody of their pet animal. In fact, until recently all courts classified animals as “property” under the law and therefore legal issues pertaining to custody of the pet were framed in terms of ‘ownership’. 

However, some courts like the Punjab and Haryana High Court have recognized the legal status for all animals. In a judgment authored by Justice Rajiv Sharma held that “all animals have the honor and dignity… entire animal kingdom including avian and aquatic species has a distinct legal persona with corresponding rights, duties, and liabilities of a living person.”

Further courts have begun to consider the interests of animals as opposed to resolving them according to strict property analysis. Sheik Mohammed vs The Principal Chief Conservator of Forests and ors” is a case that exemplifies this shift.

Pet Custody Agreements

In an infamous case last year, a childless couple in an 18 year-long-marriage filed for mutual consent divorce. The former couple were proud parents of two Indie pups and drafted out a detailed custody agreement. Their lawyers, Amarjeet Prasad and Payal Shethia, said it was a unique example of a family treating every member humanely and separating with peace.

The last celebrity pet custody case was that of singer Adnan Sami and Sabh Galdari who fought a long custody battle of their pet dog. 

Pet Custody Laws Across the Globe

  • Spain: This April Spain unveiled a new legal reform. After France, Germany and Switzerland, Spain joined the campaign to recognize pets as living beings. The new reforms provide the judges two options, wherein the pet can be sent home with one of the former lovers or declare joint custody.
  • US Laws: consider pet animals as inanimate objects. There are no specific laws for the custody of pets. 
  • UK and Australia: Pets are treated as inanimate objects, by law. Courts don’t really intervene in such disputes, and so more often than not, the person who purchased the dog gets the custody.

The way forward for India

In the recent case of “Sheik Mohammed vs The Principal Chief Conservator of Forests and ors” the Madras High Court resolved an “ownership” dispute involving an elephant using the “best interest” standard approach commonly used in Child custody cases. While deciding on the particular mater, the court took into consideration the elephants’ interests, mental well-being, physical and psychological well-being and her bond with her caregiver.

This landmark judgement might play a vital role in the emerging jurisprudence related to animal custody disputes. As it recognizes the interests of the animal in addition to the claims of the human parties.

Pet-nups

With divorces and breakups on a rise, pet-nups are emerging as a new concept. Pet-nup is a legal document similar to prenuptial agreement. It primarily deals with who gets to take ownership of the animal in the event of a break up or separation.

Pet-nups are the easiest way to avoid any hassle after separation. The agreement will set out arrangements for the custody of the pet, including who they will live with. The agreement may even provide for visitation. 

Conclusion

With changing family dynamics dogs have moved up from being ‘man’s best friend’ to the family’s child. While adopting a pet together might sound inexpensive, it is wise to sort out the legal intricacies of the pet custody well in advance.

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

This Article is made by Aditya Pratap in assistance with Karthyayani Amblimath.

Cases argued by Aditya Pratap can be viewed here.

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and how they may affect a case.

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