Marriage is something more than a contract; for other rights than those of the parties to it, and other interests than those of the public at large, are concerned. It is an institution upon which not the marital only, but the family relation is dependent – the life, education, and well-being of the children whom it brings into the world. The supreme court in the case of, In re: McGrath (Infants) Lindley LJ said: “The dominant matter for the consideration or the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”
In this progressive world, there are a lot of cross border marriage taking place, and with that comes a lot of complications, and one such complication is the custody of the child, as to when the divorce takes place and a parent flees away into another country with the child, then the question comes as to which law has to be applied among all other things i.e. psychological harm, welfare of the child, best interest principle, rights of the parent from whom the child has been snatched, etc. and this dilemma is called private international law, where the court of 2 country’s decide among itself as to who will have the jurisdiction and as to how the case will proceed with the custody of the child and what would be the remedies.
WHAT IS PARENTAL KIDNAPPING?
International parental child abduction or removal can be defined as the removal of a child by one parent from one country to another without the approval of the other parent. Child removal, in this context, encompasses an interference with the parental rights or right to contact with the removed child. These acts by a parent when brought before a court of law have in the past created a considerable amount of confusion specifically in the area of competence of courts with regard to jurisdictional aspects.
To explain how this parental kidnapping takes place, we’ll look into the facts of the case V. Ravi Chandran vs Union of India filed before the apex court. The brief facts are:
“The Petitioner/father was a US citizen and had been granted divorce by US family court. The petitioner and the respondent-mother were ordered by the US court to have joint legal and physical custody of the child. The parties were also ordered that minor child shall stay in Allen Texas and both shall keep each other informed about each other whereabouts with providing all details to each other. The respondent took the minor child to India and told the petitioner that she shall stay only in India. The petitioner in response to these sought orders from US court which therein ordered that petitioner shall be the sole temporary guardian of the minor and the respondent guardianship shall be suspended and also ordered that the issue of custody of the minor child shall be heard in the jurisdiction of US courts especially in Albany County Family Court. The petitioner filed a writ petition in the apex court seeking production of the minor child and handing over the custody to him and hence the matter came before the apex court”.
Since a lot of multinational marriage takes place nowadays, the issue of parental child kidnapping often occurs before courts throughout the world, so on the 25th of October 1980, The Hague convention on civil aspects of international child abduction had been drafted. The object of the Convention is to secure the prompt return of children wrongfully removed to or retained in any Contracting State and to ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States.
The convention provides for following aspects:
- It establishes as the fact that habitual residence of the child is of paramount importance from where it was removed and such retention or removal has been termed as wrongful in the convention. The habitual residence of the child is where it has been residing, going to the school and has been living for a considerable amount of time.
- Where a time period of less than 1 year is elapsed then the judicial/administrative authority of the contracting state has to order for the return of the child but where the time period of more than a year is elapsed, then the authority concerned has to see if the child has settled in the new environment and accordingly order for its return.
- The authority concerned is not bound to order for the return of the child when it is proved that at the time of removal of the child, the person having the child was not in charge of the custody of the child or has consented or has later acquiesced in the removal or it is proved that such return is not safe as it may cause psychological harm to the child.
The convention has been drafted to establish a system of law that all the countries must follow to decide the matter, but even after the recommendation of the law commission of India to sign this convention, India has not yet ratified it.
INDIA’S POSITION WITH REGARD TO THE HAGUE CONVENTION
In Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw & Anr, the Supreme Court has reiterated the principle that “it was the duty of courts in all countries to see that a parent doing wrong by removing children out of the country does not gain any advantage by his or her wrongdoing”. In Roxann Sharma v. Arun Sharma, the Apex Court deprecated the practice of ‘forum shopping’ requiring the entitlement of custody rights of the other spouse to be judicially determined. The Court observed that: “…the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child’s welfare which is the focal point for consideration”. In Sarita Sharma vs Sushil Sharma That in deciding whether to order the return of a child who has been abducted from his or her country of habitual residence – which was not a party to the Hague Convention, 1980, – the Courts’ overriding consideration must be the child’s welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the child’s return unless a grave risk of harm was established.
Recently Punjab & Haryana in the case of Seema Kapoor & Anr vs Deepak Kapoor & ors referred the matter to the law commission of India “to examine multiple issues involved in inter-parental child removal amongst families and thereafter to consider whether recommendations should be made for enacting a suitable law for signing the Hague Convention on child abduction”. So while examining the issue at hand, law commission found that it had already recommended the government of India on the Need to accede to the Hague Convention on the Civil Aspects of International Child Abduction (1980), in its 218th report and the government has already prepared a draft of the “Civil Aspects Of International Child Abduction Bill, 2016”, which is in consonance to the Hague convention, 1980 and has already been put on the website of the Ministry of Women and Child Development.
Even when India has not ratified the convention, the Indian courts follow the same method for resolving the dispute as held by the Supreme Court, while dealing with a case of custody of a child:
- Whether the court in the removed country could conduct an elaborate inquiry or can hear the matter summarily and order the return of the child.
- If the welfare of the child is doubtful in return of the child than the court can refuse to order the return of the child and deny to follow the principle of comity of courts, While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case.
THE REMEDY IN INDIA
So since India is not a signatory to The Hague Convention, the question arises as to what is the remedy for a parent from the child has been snatched? The answer to this question is article 226 and 32 of the Indian constitution, i.e. one can file a writ petition before the concerned High Court and Supreme Court as it is the fastest way of getting a remedy in India. Further, recourse can be sought through the provisions of the Hindu Minority and Guardianship Act 1956, which has extra-territorial operation by seeking guardianship rights for their child.
India has evolved with time with the concept of the comity of courts, the Supreme Court in Surinder Kaur Sandhu vs Harbax Singh Sandhu, exercised the summary jurisdiction and held that father should return the child to England, because both the spouses have a home there and English court is the right court to decide the matter and did not hear the petitioners contention on the ground that they don’t have the jurisdiction to decide the matter and if they do hear the matter, it will amount to forum shopping. As the time progresses, the supreme court looked at the wider aspect and held in Dhanwanti Joshi v. Madhav Unde that the order of the foreign court will only be one of the facts which must be taken into consideration while dealing with child custody matters and India being a country which is not a signatory to the Hague Convention, the law is that the Court within whose jurisdiction the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance. It was, in this case, the Supreme Court changed the earlier view and did not exercise summary jurisdiction in returning children to its parent and observed that the welfare and best interest of the child or children must be of paramount consideration. The same principle has been reiterated by the Supreme Court by setting aside the judgment of the Delhi high court Ruchi Majoo vs Sanjeev Manjoo, when it gave the decision based on comity of courts holding that the judgement of the foreign court has to be respected, the supreme court held that “the first and foremost of them being that `comity of courts’ principle ensures that foreign judgments and orders are unconditionally conclusive of the matter in controversy. This is all the more so where the courts in this country deal with matters concerning the interest and welfare of minors including their custody. Interest and welfare of the minor being paramount, a competent court in this country is entitled and indeed duty-bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication”.
For the courts to decide the custody rights of the parent having a foreign element is a very difficult thing, when we talk with an Indian perspective it becomes more difficult as we don’t follow the Hague Convention on civil aspects of international child abduction. So for the Indian courts, they don’t have a settled law which they have applied, but the question of custody of a child having a foreign element in India has been evolved by way of judgement and its common law. There are 2 principles on which an Indian court decides the custody of the child, first, the welfare of child and comity of court in which the former has more weightage than the latter. The principle of comity is only followed when the question with regard to the welfare of children is no longer in dispute.
About the author
Shikhar Shukla hails from Bilaspur, Chattisgarh. He was brought up in a simple household with great values, which made him realise in 10th grade that whatever he does in life, it should be for the betterment of the society and that landed him in a law school. As an introvert in law school, one can get pretty lost but he tried his hands on Moots and realized how beautiful our profession can be. How one can channelize one’s energies to learn something and produce it in a meaningful way. Since then, he slowly pushed himself to sit and write a research paper, and now there’s no turning back for me. He loves writing and hopes to get better as the days progress.