No explicit laws, ugly divorce battles make pet custody a grey area in India

Similar to battles of child custody, pet custody has come into focus with a rise in pet adoption and parenting. While there’s no law in India regarding the matter yet, lawyers and legal experts tell us that there are a few factors taken into consideration by the court while handling such cases.

‘No laws for pet custody in India yet’
In the US, a clause for a pet’s custody is included in prenups. So, what happens to pets in India when couples are on the verge of divorce or separation? Mansi R, lawyer, says, “The person in whose name the property is, is more likely to get the custody because preferably pets shouldn't be uprooted from the environment they’re raised in.”

High court advocate Chirag Mishra adds, “Since there’s no law explicitly mentioning pet custody, the court determines a pet’s ownership based on which of the partners is more financially stable and capable of providing a comfortable life to the pet. More so because the expenditure for raising a pet can be huge. Unlike child custody, pets cannot be asked for their opinion, so it is an issue between two partners only.”

‘Joint custody may be granted’
The court might consider factors like who the pet is close to to make a decision. “Pet custody is a grey area as far as law is concerned. But a few pointers are taken into consideration like who bought the pet, ⁠who was looking after the pet or who he/she is more attached to, ⁠etc. All these things can be backed by evidence, however, in most cases, these questions are negotiated between the parties beforehand. Mediation is the first step in any legal battle after the introduction of Section 89 of CPC (Code of Civil Procedure),” explains Mansi

Chirag adds that co-parenting is also one of the outcomes. “Many times court orders joint custody of pets, where each partner keeps the pet for one week, or as mutually decided,” he says.

‘Prenups are not illegal but not recognised by law either’
While prenups, or pet-nups as they’re known in the US, are pretty common there, they’re not recognised by law in India because “marriages are considered sacred” in most religions. Chirag Mishra informs, “While signing a prenup is not illegal, at the time of divorce, the decision of the court would be final, regardless of what is included in the agreement. It can be treated as a reference document only.”

Done in the form of MoU (Memorandum of Understanding), these agreements can include points like who gets the custody of pets upon separation, daily needs of pets, visitation rights, monthly expenses for taking care of the pet, etc.

Abhinay Patil, manager of an animal rescue, said, “Unfortunately, pets often do end up at animal shelters or breeders after a divorce, as challenges associated with separation can lead people to surrender their pets due to new living situations, financial strain, difficulty deciding who should keep the animal, or the burden of child custody and pet custody falling on one parent.”

Pet custody cases in Hollywood

• Justin Theroux and Jennifer Aniston separated in Feb 2018 and agreed to share custody of their dogs Dolly, Sophie, Clyde
• Miley Cyrus and Liam Hemsworth adopted 15 pets: seven dogs, three cats, four horses and one pig. Cyrus kept all post separation
• Amber Heard and Johnny Depp adopted two dogs, Pistol and Boo, and a horse, Arrow. Heard was given custody of all