Over the past fortnight, Lok Sabha parliamentarian Mahua Moitra and her estranged romantic partner, lawyer Jai Anant Dehadrai, have been trading charges about the custody of a pet dog named Henry.

Moitra and Dehadrai appear to have shared possession of the Rottweiler but Henry is currently believed to be in the MP’s custody. Underlying an apparent custody battle are Dehadrai’s allegations that Moitra accepted bribes to ask questions about tycoon Gautam Adani and his business conglomerate in Parliament.

He alleged on X, formerly known as Twitter, that Moitra had “kidnapped” the dog.

The tussle for Henry has highlighted a vacuum in Indian law relating how custody of a pet will be decided if a couple separates. Legal experts Scroll spoke to said there is no law to deal with such a situation.

The law, instead, considers pets as property, leaving courts to decide on such cases as they would a property dispute. Co-owners have no option other than arriving at a mutually agreeable settlement for custody through negotiation.

Who should keep Henry?

The debate about Henry started early in October, when Dehadrai filed a complaint with the Central Bureau of Investigation accusing Moitra of accepting cash and gifts as bribes for asking specific questions targeting the Adani Group in the Parliament. He also wrote a letter with the same allegations to Bharatiya Janata Party MP Nishikant Desai, who raised the matter in Parliament. The Trinamool Congress MP is an outspoken critic of the Bharatiya Janata Party-led Central government.

On October 17, Moitra alleged in a defamation notice against Dehadrai that he had stolen Henry from her but had later returned the dog to her. She claimed that Dehadrai’s bribery complaint against her was the result of malevolence stemming from their custody battle over the pet.

Days later, in a letter to the Delhi Commissioner of Police on October 19, Dehadrai claimed that Moitra had abducted Henry after he filed the complaint against the Trinamool Congress MP with the Central Bureau of Investigation.

Dehadrai has claimed on X as well as in the Delhi High Court during the hearing of the defamation suit the MP filed against him that Moitra asked him to withdraw his complaint to the Central Bureau of Investigation in return for possession of Henry, and that he had refused the offer.

He has also accused Moitra of keeping Henry locked inside her house “to deter the CBI from entering”. Since mid-October, Dehadrai has been posting about Henry on X.

Legal vacuum

While most pet owners are unlikely to get embroiled in political debates, deciding on custody if owners go their separate ways remains just as contentious.

“In India there is no definitive law dealing with pet custody,” said Anshul Gupta, a Delhi-based lawyer and the founding partner of the law firm ANG Partners. “In most such cases, the custody of the pet is decided by the terms of divorce.”

Mediation, a dispute resolution mechanism that involves arriving at a decision through negotiation with the assistance of an impartial third party, is the only other option for a couple that is separating.

Malavika Rajkotia, a reputed family lawyer based in Delhi, agreed. “The couple must reach a negotiated settlement,” she said.

She pointed to the case of a Mumbai-based couple who got a divorce in 2020 and drew up a detailed settlement for the custody of their two pet dogs.

The former husband was given dominant custody of the dogs, but the former wife was allowed to keep them for a month each three times a year. The settlement also required the parties to inform each other before taking the dogs with them on vacation. They were also allowed to visit the pets while they were in the other’s possession.

Pets as property

The Punjab and Haryana High Court had held in 2019 that all animals have the right to live, which must be protected by law, and that they could “not be treated as objects or property”. Despite this, pets are considered property in India law for all practical purposes, said Gupta. As a consequence, such custody disputes are settled based on the ownership of the pet, he said.

However, establishing which one of the separating individuals actually owns the pet can be an onerous exercise. It is rare for owners to get pets registered with municipal authorities. Even if they do, they often provide the name of the entire family as owners, rather than of one individual.

What if the partners cannot arrive at a settlement and the matter goes to court?

Vipul Shukla, a Delhi-based lawyer with experience in divorce and custody matters, said such cases are “very difficult”. “Principles of child custody will not apply to such cases at all, since courts won’t look at pet animals as children,” he said.

Representative image. Credit: Akshay.petfed, CC BY-SA 4.0, via Wikimedia Commons.

In such cases, the court will arrive at a solution based “on the individuals involved and the application of judicial mind”, said Shukla. According to Rajkotia, the court must ensure that the pet has access to caregivers within the family. This essentially means that the pet must go to somebody who has previously cared for it in the family.

In case the parties involved are not married, as with Moitra and Dehadrai, the custody of the pet will be based on factors like “who purchased the pet, who pays for the expenses of the pet and who takes care of the pet”, according to Gupta.

Dehadrai, for instance, has claimed in his letter to the Delhi Police that he bought Henry in Delhi for Rs 75,000, which he paid for in two installments. He provided what he claims is proof of these payments.

Rethinking legal status of pets

Gupta said that in the absence of a codified law to deal with the custody of pet animals, the law must give “proper recognition of the legal position of pets as either a separate class, like property or a child”.

He also pointed out that in some countries, couples have “pet-nup agreements” that specify who will keep the pet if they separate. Couples in India must also consider such agreements so that the custody process does not get stretched and require litigation, advised Gupta.

“Pet ownership must be regularised and licensed,” said Shukla, which will mean that every pet will have a registration certificate or an identity document mentioning their owner. These details should be decided by the couple at the time of purchase or adoption.

European writer Franz Kafka wrote, “All knowledge, the totality of all questions and answers, is contained in the dog.” But in the absence of a settled legal position and a law about his matter, the custody of pet dogs and other pet animals will continue to raise more questions than answers.