Private International Law and Inter-Parental Custody Disputes in India

By Aditi, NUJS

Editor’s Note: Disputes resulting from such global families, especially involving inter-parental custody battles have yet to be addressed comprehensively by the Indian legal regime. The present paper explores the current Indian position on this issue and the future potential in the background of the Hague Convention of 1980 on the Civil Aspects of International Child Abduction.

Introduction

Owing the increase in accessibility of new forms of travel, cross border movement is not the rarity it was a few decades. This fact is well illustrated by the fact that around thirty million Non-Resident Indians reside in about 130 nations abroad.[i] One of the many results of this is the increasing inter-cultural and multinational relationships. The integrated unit of Family has acquired a global colour. International mobility, opening up of borders, cross border migrationand dismantling of inter cultural taboos have all the positive traits but are fraught with a new set of risks for children caught up in cross border situations.[ii] However, Indian law has yet to match pace with these issues. As such, disputes resulting from such global families, especially involving inter-parental custody battles have yet to be addressed comprehensively by the Indian legal regime. The present paper explores the current Indian position on this issue and the future potential in the background of the Hague Convention of 1980 on the Civil Aspects of International Child Abduction.

What is Child Removal?

Dr Justice A.R. Lakshmanan, Judge, Supreme Court rightly opines, “Statistics show that divorce and custody cases are on the rise. The practice of international child abduction has its roots in these inter-parental custody battles”.[iii] Here, it is pivotal to understand what exactly constitutes international child abduction.

Father from Country ‘A’, Mother from Country ‘B’ residing in Country ‘C’ where the children are citizens. Many families across the globe meet this description in today’s scenario. While this merging of cultures and nationalities plays a vital role in broadening the social horizons, it also creates unprecedented problems when troubles ensue. One such problem is Child Removal. In simple terms, it refers to a parent taking the child with him/her out of their country of residence so as to hamper the other parent’s right to contact. Often matrimonial problems in the aforementioned families are followed by instinctive reaction of a parent heading back to his/ her countries of origin, taking the child with him/ her without the other parent’s consent. This constitutes child removal or international child abduction.[iv]

This concept has been defined under Section 3 of the Hague Convention of 1980 on the Civil Aspects of International Child Abduction. The section reads:

“Article 3

The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise inparticular by operation of law or by reason of a judicial or administrative decision,or by reason of an agreement having legal effect under the law of that State.”[v]

This definition is not applicable to India, as it is not a signatory to the Hague Convention of 1980 on the Civil Aspects of International Child Abduction. Also, no parallel legislation has been enacted as for now to define child removal or deal with the issues it concerns. As such, the judiciary has taken on the burden and has adhered to judicial innovation while deciding matters on a case to case basis. However, this only works as a temporary solution to the ever escalating problem, lacking uniformity and consistency. As such, the need of the hour is to reach out for a more permanent and comprehensive resolution of these issues.

The Indian Experience

As mentioned earlier, Indian is not yet a signatory to the Hague Convention of 1980 on the Civil Aspects of International Child Abduction. As such, remedies are often sought from the existent domestic laws. The constitutional remedy of the writ of Habeas Corpus under Article 226 as well as Article 32 is often used by the parents against the spouse allegedly abducting the child to India. Due to its special nature, it is often the quickest remedy available to the parents.[vi] Further, recourse can be sought through the provisions of the Hindu Minority and Guardianship Act 1956[vii] which has extra-territorial operation by seeking guardianship rights for their own child.[viii] Much like the, the perspective applied while contesting of such issues in court is quite outdated, the process being a long adversarial  fight for superior rights of parties and often ignorant of the real issue of welfare of the child. More often, the parents approach the Indian courts for enforcement of a foreign court order of custody, mainly because they find it easier and quicker to import a foreign court judgment to India on the basis of alien law which has no parallel in the Indian jurisdiction.[ix] As a result, while the Indian courts do their best in interpreting these judgments harmoniously with the Indian laws,[x] the results are often inconsistent and lack uniformity, thus hindering development of private international law in India.

The ideal approach in such cases should be to consider the welfare of the child as the paramount objective.[xi] The term welfare is an all-encompassing one.[xii] According to Lindley LJ, “the welfare of a child is not to be measured by money alone nor by physical comfort only. The word welfare must be taken in the widest sense. The moral and religious welfare must be considered as well as its physical well-being nor can the ties of affection be disregarded.” Fortunately, the recent judicial developments paint a positive picture in this regard. In the case of Kulwinder Dhaliwal v. State of Punjab[xiii], which was one such dispute dealing with inter-parental custody of the child, on a writ of Habeas Corpus, the court respected the orders of the Ontario Superior Court of Justice giving custody of the minors to the petitioner, and the children were directed to be handed over to the petitioner with liberty to take them to Canada.

In Gurmeet Kaur Batth v. State of Punjab[xiv], the High Court held that it can exercise jurisdiction vested in it under Article 226 of the Constitution of India by issue of the writ of Habeas Corpus in cases of International Inter-parental Child Abduction. The Canadian court order in favour of the petitioner mother was relied upon and enforced. In Vikram Vir Vohra v. Shalini Bhalla[xv], the Supreme Court of India upheld the ultimate consideration of betterment of the child and held that that child custody orders are interlocutory in nature and can be altered for the welfare of the child. Consequently, the Supreme Court permitted the mother to take her minor son, aged about ten years old, to Australia in accordance with the wishes of the child to stay with the mother, upholding the welfare of the child as a paramount consideration.[xvi]

Hence, more and more courts, while dealing with issues of inter-parental custody have interpreted the laws in order to uphold the ultimate objective of protecting the interests of the child. The courts dealing with the foreign court orders have displayed remarkable creativity and have refused to enforce them mechanically. Instead, efforts have been made to consider the merits of the case and then delivering a decision which balance out the Indian legal considerations, while acting in the most fair and equitable manner possible to render substantial justice to the parties.[xvii] However, as mentioned earlier, the judicial development of this area, being devoid of any legislative guiding light to rely upon, has been inconsistent. As such, the aforementioned positive decisions have been often contrasted by a few negative ones.

In Mandy Jane Collins v. James Michael Collins[xviii], the case was between a 62 years old American father and 39 years old British mother resident in Ireland and who were litigating over the custody of their 8 year old minor daughter said to be illegally detained in Goa by the father. The Court declined the issuance of a writ of habeas corpus and directed the parties to pursue their remedies in normal civil proceedings in Goa and until then, directed the status quo to be observed. In a challenge to this decision by the mother before the Supreme Court of India, the appeal was dismissed on August 21, 2006, leaving it open to the parties to move the appropriate forum for the custody of the child.[xix] The effect of this ruling would be that the 8 year old minor girl continues to live in Goa without her mother or any other female family member in the father’s house. As such the court failed to consider the urgency of the situation with regard to the child and the question of her welfare was held secondary to the procedural considerations.

In another matter reported as Ranbir Singh v. Satinder Kaur Mann[xx], the petitioner father residing in Malaysia filed a Habeas Corpus petition for custody of his children, relying on an order passed by the Malaysian High Court. However, the High Court in India dismissed the petition holding that the matter could be re-activated before the appropriate forum with regard to the custody of the children on the basis of evidence to be adduced by the parties. This could be detrimental to the interests of the child because of the long procedural battle that the normal civil proceedings would entail.

Thus, in the backdrop of ever increasing cases on this issue, the need of the hour is a consistent and uniform legal position, with the welfare of the children as its paramount objective. One option that can be exercised by India in this regard is signing the 1980 Hague Convention.

Need for India to sign the 1980 Hague Convention

I. 1980 Hague Convention: An Overview

The objective of the 1980 Hague Convention is stated as,

a. To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b. To ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court.[xxi] The approach taken by the Hague Convention supports the role played by the court in the country of the child’s habitual residence. In India, it is often not the case and domestic laws are applied to govern the rights of a foreign child, which, while being alien to the wronged parent, hence causing him/ her further hardships, may not represent the best interests of the Child.[xxii]

Article 12 of the 1980 Hague Convention lays down the conditions as between the parties to the convention for the making of a request for the return of the minor child, and the corresponding obligation on part of the authorities of the requested state to return the minor child. If a request is made under Article 13 provides for certain exceptions where the child may not be returned, which include risk of physical or psychological harm and objection of the child as to the return. Article 20 is another exception to Article 12 of the Convention, which enables the requested state to decline on grounds of protection of human rights and fundamental freedoms of the state.

Besides these provisions, the Article 16 of the Convention provides that pending an application under the Hague convention, the courts of the state to which the child has been removed are prohibited from deciding the case on merits. Some argue that this position conflicts with the current modus operandi of the Indian courts. The argument of consideration of welfare of the child stands in conflict with this provision of the convention. However, it is submitted that the present legal scenario in India in this regard exists as a temporary system till a stable solution is reached. If India does sign the convention, the Indian courts would not need to act in cases of child removal to India.

This would be a positive development as it would help the aggrieved parent in avoiding a difficult encounter with the legal system of a foreign country, and would also reduce domestic litigation in this regard. The appropriate forum prescribed under the Hague Convention could settle such disputes with finality and the conflicts between the foreign court orders and the subsequent positions adhered by the Indian courts could be avoided.

II. Should India Sign the 1980 Hague Convention?

Despite the efforts made by the judiciary, the legal position in India with respect to Inter-parental custody rights is dismal. At present, there is no international convention or treaty applicable in India for enforcing rights of such nature. Domestic legislation has also failed to respond to the concerns that have been surfacing in this regard. A glimmer of hope was seen with the proposal of the Indian Civil Aspects of International Child Abduction Bill, 2007. It sought to create the mechanisms and systems of implementation before the Government of India acceded to the Hague convention. However, this effort saw no further advancement in the Parliament and still awaits its presentation in the Legislature.[xxiii]

Such lack of a stable legal position with legislative backing in this regard is increasingly projecting India as a haven for International Child Abduction. Many offending parents from foreign countries deliberately chose India to run to, mainly because of its non-signatory status to the Hague Convention of 1980. This is also leading to portrayal of a negative Image of India in the eyes of the foreign courts who often rule against a parent trying to take the child to India, fearing that they may not return.[xxiv] Further, the occurrences of Inter-parental Abduction are increasingly becoming a two-way process. Not only the welfare of foreign kids abducted to India an issue, the rights of Indian kids being abducted to foreign countries by one of the parents are also at stake. As such we need a forum to address these issues on a global level. Signing the 1980 Hague Convention is undoubtedly the first step in this direction.[xxv]

In addition, as the regime of private international law enhances its prominence across the globe, there is a need to establish uniformity of laws in this regard to the maximum extent possible.[xxvi] Becoming party to international covenants as the Hague Convention of 1980, India will join the league to be a part of a uniform international legal system on the Issue of International Child Abduction.

The Law Commission has already recommended in its 218th Report as to the need to sign it. It went a step further in the 219th report titled ‘Need for Family Law Legislations for Non-resident Indians’. The Commission recognised the lack of legal framework in India regarding such issues and recommended that India be a signatory to the Hague Convention of 1980. This may not happen spontaneously and India being a country following dualist approach of International Law, enforcing of the treaty by enacting legislation may take some time. Till then, foreign missions should be set up in India in the states with a high population of Non-Resident Indians.

These missions could assist the courts to ensure return of children to the country of their foreign residence if they are removed in violation of foreign court orders. This would be an excellent step to enhance global integration with regard to such cases in India till the Hague Convention is enforced. Secondly, uniform guidelines should be established to assist the wronged parents in such cases to pursue legal remedy against the abduction. This would help the foreign parents with limited knowledge as to the Indian legal system to enforce their rights.[xxvii]

Conclusion

The area of Private International Law is at its infancy stage in India. Due to the lack of legislative developments in this regard, both at the international and domestic levels, the sole refuge can be sought before the judiciary. Similar is the situation in the cases of Inter-parental child abduction in India. Although the judiciary has been showing remarkable creativity in dealing with plethora of such cases, the temporary nature of this solution cannot be disputed. As such, a more consistent and permanent legal response is awaited. The first step that can be taken in this direction is the signing of the 1980 Hague Convention. Further, adoption of the convention by the legislature should follow. Further, bilateral agreements should be signed with the other non-signatory countries in this regard.

Formatted on 15th March 2019.

[i] Anil Malhotra, India’s Dilemma on Inter-Parental Child Removal, available at
http://www.indialink-online.com/index.php?id=949&PHPSESSID=0b4ea2737617f837ea6f117aa3090f60

[ii] Anil Malhotra, To Return or Not to Return: Hague Convention versus Non-Convention Countries, London Metropolitan University,  Journal of Family Law and Practice, Vol. 1.3, December 2010, page 50, available at http://www.londonmet.ac.uk/media/london-metropolitan-university/london-met-documents/faculties/law-governance-and-international-relations/cflp/2010-1-flp-3/Issue-3-Anil-Malhotra.pdf

[iii] Charu Singh, Cross-border marriage disputes: Child suffers most, say jurists, The Tribune, New Delhi, May 6, available at: http://www.tribuneindia.com/2006/20060507/nation.htm#4

[iv] Supra note 2

[v] Article 3, Hague Convention of 1980 on the Civil Aspects of International Child Abduction

[vi] Marilynn Anita Dhillon Gilmore v. Margaret Nijjar and Others, 1984 (1) ILR (P&H) 1

[vii] Surinder Kaur v. Harbax Singh Sandhu 1984 HLR 780 SC

[viii] Anil Malhotra, Cross-Border Child Removal Issues Plague NRI Families, Jan 3, 2009, Economic Times, available at: http://articles.economictimes.indiatimes.com/2009-01-03/news-by-industry/28437480_1_parental-rights-parental-consent-removal

[ix] 219th Law Commission Report

[x] Id.

[xi] Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112

[xii] Hardy Boys J, New Zealand Court

[xiii] ILR 2008 (2) P&H 730

[xiv]2009 (2) Punjab Law Reporter 250 (Punjab and Haryana)

[xv]2010 (3) Judgments Today 213

[xvi] Supra note 2

[xvii] Supra note 9

[xviii]2006(2) Hindu Law Reporter 446

[xix] Supra note 2

[xx]2006 (3), Punjab Law Reporter 571

[xxi] Anil Malhotra, Fresh directions in custody battles, The Tribune, available at: http://www.tribuneindia.com/2011/20110527/edit.htm#8

[xxii] Supra note 2

[xxiii] Anil Malhotra and Ranjit Malhotra, India, Inter-Country Parental Child Removal and the Law, available at http://www.reunite.org/edit/files/articles/2008%20IFSL%20Contribution.pdf

[xxiv] Fox News, Japan, India pressed to curb child abductions, Dec 6, 2010, available at http://www.foxnews.com/us/2010/12/06/japan-india-pressed-curb-child-abductions/

[xxv] Ranjit Malhotra & Anil Malhotra, Conflict Of Jurisdictions In Interparental Child Custody Disputes – The Indian Experience, Presented at Fourth International Conference On Private International Law, Indian Society of Law, New Delhi, 2006, available at: http://lawasia.asn.au/objectlibrary/2583?filename=The+Indian+Experience.pdf

[xxvi] Prashant Sharma & Vinayak Kapur, Child Adoption And Maintenance: A Legal Prospective,

International Journal of Research and Analysis, Vol 1 Issue 3 (2014), available at http://www.ijra.in/uploads/41654.1814429167fullpaper_prashant%20&%20Vinayak%20kapur.pdf

[xxvii] Supra note 9 at 26

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