June 25-26, 2015

Justice A. K. SikriJudge

Supreme Court of India

30 million Non-Resident Indians (NRIs) reside in around 130 nations

Cross cultural family bonding has led to the emergence of 2 kinds of family relationships:

1) NRI marrying a person residing in India, and taking his/her spouse to the country where he/she is settled.

2) Indian tying the knot with a person from some other country. Failure of such matrimonial alliances poses a different kind of challenge, with its unique legal complexities- Inter-parental custody battles, where children are caught up in cross-border situations, being the worse example of the same.

Problem arises when the two spouses are of different countries or even if they may belong to one country, but are settled in another country.

Matrimonial/family laws are different depending on the country in concern, thus giving rise to the situation of conflict of laws.

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A parent may take the lawful custody through a decree from the court. The aggrieved spouse may take the child with him/her, without the knowledge of the other parent. Such an act would be termed as an instance of ‘International Child Abduction’.

The child is removed, not only from the contact of another parent, but also from the residence and environment to which he/she is adapted.

  To resolve such issues in a manner, which doesn’t create an

atmosphere of conflict of laws, a uniform approach needs to be adopted by nations.

Thus, to deal with cases of international child abduction, the Hague Convention on the Civil Aspects of International Child Abduction came into picture, which expressly states that the “welfare of the child should be paramount consideration”.

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The principal object of the Convention, aside from protecting rights of access, is to protect children from the harmful effects of cross-border abductions (and wrongful retentions) by providing a procedure designed to bring about the prompt return of such children to the State of their habitual residence.  The objectives of the Convention are as follows:

1.To secure the prompt return of children wrongfully removed to or retained in any contracting state and;

1.To ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting state.

Limitations to Hague Convention Less number of signatory states Child’s opinion Question pertaining to habitual residence

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India is not a signatory to the Hague Convention.

Law Commission’s 218th Report titled “Need to accede to the Hague Convention on the Civil Aspects of International Child Abduction (1980)” – Proposed a recommendation that India should become a signatory state.

Law Commission of India in its 219th Report proposed for “Family Law Legislation for Non Residential Indians”

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Indian Civil Aspects of International Child Abduction Bill, 2007

Create a Central Authority for performance of duties.

Aggrieved parent of contracting country may apply to the Central Authority for return of a removed child to the country of habitual residence.

High Court may order return of a removed child to the country of habitual residence, but may refuse to make such an order if there is grave risk of harmony, or if presence of consent or acquiescence.

High Court may refuse to return a child if the child objects and it is satisfied that the child is capable of taking an informed decision.

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Inter-parental child removal- Not defined in Indian legislation

Three kinds of proceedings are witnessed in Indian courts for

restoration of child custody:

1. Hindu Marriage Act, 1956/ Guardians and Wards Act, 1890/

Hindu Minority and Guardianship Act , 1956

2. Writ of Habeas Corpus

3.Enforcement of foreign decree in domestic court through

civil suit

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Custody disputes under domestic laws S.13, Hindu Marriage Act, 1956: Interim Order can be passed by the court during the

pendency of main proceedings relating to matrimonial disputes, like divorce or judicial separation, etc.

S.12, Guardians and Wards Act, 1890: Grants courts the power to pass interim orders for production/protection of a minor.

S.13, Hindu Minority and Guardianship Act, 1956: Statutory recognition afforded to the principle of ‘welfare of child to be paramount consideration’.

The custody proceedings initiated, under the above-mentioned sections, would be original proceedings and would not be affected by any judgment of the court.

Court’s Parens Patriae Jurisdiction

▪ Kumar V Jahgirdar v. Chetana Ramatheertha (2004) 2 SCC 688 Section 7, Guardianship and Wards Act recognises the father of a minor child as

the ‘natural guardian’, for all minors above the age of 5 years. In the instant case however, the SC refused to base its judgment on solely the statutory provision, concluding that a female child of growing age would needs company more of her mother than her father. The court gave a wide meaning to the term ‘welfare’ (of the child) and noted that other factors, such as the moral, physical and ethical welfare of the child, should also be given due weight. In short, there is no bar on the court to exercise its parens patriae jurisdiction, even in the presence of special statutes dealing with the matter.

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Through Habeas Corpus Under Article 226, Indian Constitution before High Courts of

India Under Article 32, Indian Constitution before Supreme Court

of India

The writ of Habeas Corpus is available as an effective and efficacious remedy for a parent, whose child has been removed to India from a foreign home.

Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42The writ of Habeas Corpus in a child custody case deals with a matter of equitable nature and is not bound by mere legal right of parent or guardian. Court shall look into the best interest of the child, for which child’s opinion may also be taken into consideration

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Enforcement of foreign decree in domestic court through civil suit

The principle governing the validity are laid down in Section 13 of Code

of Civil Procedure 1908:

“13. When foreign judgment not conclusive. –

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in India.” 12

The judicial trend shows that at times the Courts have, of their own, invoked the doctrine of 'welfare of the child'. In such cases, even when there was a decree of a foreign court in favour of other parent, if the Court came to the conclusion that welfare of the child lies in retaining the custody of the said child with the parent against whom the decree is passed, still the custody with the said parent is maintained irrespective of the foreign court decree. On the other hand, in some other cases, it is the decree of the foreign court which is given due importance by holding that once the foreign court has examined the question of welfare of the child and decided in favour of the decree holder, it is the said decree which should be allowed to prevail.

Cases adopting principle of ‘Comity of Court’

Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698: Court exercised summary jurisdiction and refused to hear the case on merits. Honored foreign court’s decree and ordered for return of the minor to the foreign country.

Elizabeth Dinshaw v. Arvind M. Dinshaw, AIR 1987 SC 3: Exercised summary jurisdiction to return the child to his country of origin.

Cases adopting principle of ‘Welfare of the Child is a Paramount Consideration’

Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112: Foreign decree is only one of the many factors to be taken into consideration. India, not being signatory to the Hague Convention, its law dictates that the court ,within whose jurisdiction the child is removed to, will consider the question on its merit. Departing from earlier tradition, SC did not exercise summary jurisdiction.

Sarita Sharma v. Sushil Sharma, (2000) 3 SCC 14: Placed reliance upon observations made in the above case.

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Recent Judgment of Supreme Court in Surya Vadanan v. State of Tamil Nadu & Ors (2015) 3 SCALE 151 has achieved the same.

Court remarked that two principles can be reconciled as these were not contrasting principles in the sense of one being the opposite to the other, but they are contrasting in the sense of being different. principle that need to be applied in the facts of a given case.

“Comity of courts should not be jettisoned by Indian courts except for special and compelling reasons” in respecting foreign court child custody orders and that “if the jurisdiction of the foreign court is not in doubt, the first strike principle would be applicable” .

Court also held that the nature and effect of foreign court custody orders; special reasons for repatriating or not repatriating the child; physical, social, cultural or psychological harm to the child; physical safety of returning parent; and alacrity with which the parents move the foreign or domestic courts, are parameters to be borne in mind for holding whether a summary or elaborate inquiry should be held in such cases without ordering so as a matter of routine course.  

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Key Factors to be taken into consideration for securing the welfare of the child

While deciding the cases, child’s rights to have his or her views is respected and in every case, before the taking the final decision, the child is heard in heard in person by the concern judge.

Even if custody is granted to one of the parents, visiting rights to the other parents are always ensured holding the same cannot be denied as it is right of child to maintain contact with both the parents.

Though there is no specific provisions under the relevant Indian states in respect of share residence, occasionally, the courts have passed share residence order.

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The Apex Court decision in Surya Vadanan’s case may finally bring uniformity in approach as well as judicial decisions on this sensitive subject. It is to be noted however that, since this result has been brought out through the course of a judgment and not through a statutory enactment, there is always the possibility that the Court may not strictly follow, or even completely divert from this approach in the future.

Moreover, even as the situation is right now, there are still chances of conflicting, parallel and inconsistent directions being given in child custody proceedings in foreign and Indian courts. Thus, a stalemate and deadlock ensues. This also causes acute emotional distress to the abducted child as well as to the parents.

Illustrations:1) A fugitive NRI parent, declared a proclaimed offender, would never be able to see or

talk to his children removed to India.2) An anguished parent-armed with a foreign court order-unsuccessful in its

enforcement in India, may attempt to abduct the minor child to the foreign country, just as was done previously by the other parent in bringing the child to India.

3) A foreign court, which may have refused to permit an NRI from travelling to India, would tilt the local courts towards declining to implement foreign court order directing return of the NRI’s children.

To conclude-The questions which fall for consideration in this debate are:

i) whether such problems can be reconciled by becoming signatory to the Hague Convention and/or

ii) whether the passing of the Indian Civil Aspects of International Child Abduction Bill, 2007 will help in this regard. 17

Thank you!

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