Transcript June 25-26, 2015 Justice A. K. Sikri Judge Supreme Court of India 30 million Non-Resident Indians (NRIs) reside in around 130 nations  Cross cultural family.

June 25-26, 2015
Justice A. K. Sikri
Judge
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.
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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 42
The 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.”
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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
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
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 concludeThe 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.
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Thank you!
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