Child Custody Approach Used to Resolve Dispute over Ownership of Elephant in India

Megan Edwards

Animals inhabit a peculiar position in the world, particularly with respect to their relationship with people.  On one hand, people have responsibilities and obligations to animals—this is evident from the almost 120 countries worldwide that have some form of basic animal cruelty laws.  On the other hand, animals are considered peoples’ legal property, having a legal status similar to that of a chair.  This reality makes the handling of legal cases involving animals challenging, and oftentimes unsatisfactory. 

But for the Madras High Court in India, “[j]ust solutions to legal issues may sometimes lie outside the formal statutory framework.”  Before the court was a dispute over the ownership of an elephant called Lalitha.  Lalitha was originally purchased in 1988 and was subsequently sold to different people until her current owner, Sheik Mohammed, purchased her in 2000.  Mohammed filed a form with the government to transfer the status of Lalitha’s legal ownership to himself—but the issue was, the sales of Lalitha after her original purchasing in 1988 were illegal.  Mohammed’s requests for ownership transfer were pending until they were rejected in March of 2020. 

Despite the illegal sales, Mohammed petitioned the court to set aside the rejections and to direct the relevant government agency to grant him a certificate of ownership.  Because of the clear illegality of the sales, the court refused to set aside the rejection.  However, the court was not prepared to require Mohammed to surrender Lalitha to the Forest Department. 

The Madras Court relied on reasoning set forth by the Supreme Court in determining how to handle Lalitha’s placement. The Supreme Court of India declared that 5 internationally recognized freedoms for animals established by the guidelines of the World Organization of Animal Health be read into the Prevention of Cruelty to Animal Acts.  These freedoms include: 1) freedom from hunger, thirst and malnutrition; 2) freedom from fear and distress; 3) freedom from physical and thermal discomfort; 4) freedom from pain, injury and disease; and 5) freedom to express normal patterns of behavior.  Relying on these principles, the Madras High Court held that Lalitha is “entitled to express her normal patterns of behavior.”  Lalitha lived with her caretakers for over twenty years and established a close bond with them.  She would have been traumatized if she was forcibly removed from Mohammed’s care.  In a novel turn, the court elected to utilize child custody procedures to handle the custody of Lalitha.  The presiding judge conducted a surprise inspection and found Lalitha to be well cared for, well fed, in good health, and importantly, happy.  The court held that removing her from Mohammed’s care would be “sure to inflict a deep psychological wound” that would not be “in her best interests.”  Despite being denied the legal ownership of Lalitha, Mohammed was allowed to maintain custody.  The court valued what was best for Lalitha over adhering to the processes that deem her property. 
 

In recent years, similar approaches to determining the custody of animals in divorce proceedings have arisen in the U.S.  Courts have begun to apply a “best interest” approach when it comes to pet custody.  Under this approach, to determine which party would gain custody of a pet, courts have considered factors such as how the individuals care for the pet, the bonds they have with the pet, who brought the pet to the veterinarian and paid the bills, and who does things with the pet such as taking it for walks.  Utilizing these factors, courts have attempted to determine the primary caregiver for the animal, relying on the idea that the person who primarily took care of the animal and had the majority of the caregiving responsibilities for the animal would have the animal’s best interests in mind.

Three states—Illinois, Alaska, and California—have taken steps to establish laws that require courts to consider the “well-being” of the animal when determining custody.  This “best-interest” standard recognizes that animals are sentient beings, not just mere, inanimate items of property.  Suggestions for more widespread use of this standard propose that courts consider facts such as the mental and emotional health of the animal, exercise for the animal, whether other animals or children will be in the household, and the affection and bond between the animal and its caregiver.  Like the Madras Court, these considerations are similar to those granted to children in custody proceeding.

Animals are not inanimate objects, and the law should not treat them as such.  A “best interests” approach to the determination of the custody of an animal, such as what was utilized in Lalitha’s case, is a step towards recognizing animals’ inherent value. 

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