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International Family Law

The leading authority on international family law

10 SEP 2015

India - Inter-parental cross border child removal issues

India - Inter-parental cross border child removal issues
The Problem

The world is slowly becoming a global village. Inter-country and inter-continental travel is easier and affordable. The corollary to this is an increase in relationships between individuals of different nationalities from different cultural backgrounds. Logically, the world in which our children live has grown immensely complex. It is filled with the opportunities and risks. International mobility, opening up of borders, cross border migration and 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. In ensuing disputes over custody and relocation in broken international homes, the hazards of international abduction between parents inter se loom large over the chronic problems of maintaining access or contact internationally with the uphill struggle of also securing financial child support in foreign jurisdictions.

Of almost 1.2 Billion Indians, about 30 million non-resident Indians constituting the largest Diaspora in the world, live in about 180 nations abroad. India itself is spread over 3.28 million square kilometres over 29 States and 7 Union territories. These high numbers and volume statistics indicate the immense free cross border movement of global Indians. Such high density inter country migration has given a crop of inter-country family oriented disputes with new dimensions. Inter-parental cross border child removal is one such unresolved facet in this evolving family jurisprudence generating parallel conflicting legal proceedings in different jurisdictions without any resolution at any territorial end. Miffed over an acrimonious matrimonial feud, tendency among stressed parents to transport children surreptitiously without court consent to foreign jurisdictions is now a common feature.

No codified law

Inter-parental child removal is not defined in any Indian legislation and is not specified as an offence under any statutory law. The problem is compounded by the fact that India is not a signatory to the Hague Convention on Civil Aspects of International Child Abduction 1980, which is acceded to by 93 countries worldwide. Hence, inter-parental child custody conflicts are invariably decided by Indian Courts on the principle of the welfare of the child as a paramount consideration in the best interest of the child. The prerogative writ of Habeas Corpus as an expedient remedy is thus, invariably invoked being the most effective, emergent and efficacious remedy for a distressed parent whose child has been removed to India from foreign homes. The Foreign Court Custody order forms the basis of invoking this extra ordinary constitutional remedy. A guardianship petition under the Guardian and Wards Act 1890, preferred by the opposing spouse on Indian soil as a cross-fire remedy can often detract, delay and frustrate the decision making process. A protracted, time consuming and tedious custody petition results and the unfortunate removed child is fought over as a trophy to be won in a battle of egos of litigating parents. Sometimes, the love and affection of an isolated child is monopolised by one parent to such an extent that the tender mind of an alienated child gets permeated with ill will towards the other parent who for no fault has even access to his loving sibling.

Court decisions

Three erudite decisions by the Apex Court in Dr. V. Ravi Chandran (2010) 1 SCC 174, Shilpa Aggarwal (2010) 1 SCC 591 and Arathi Bandi AIR 2014 SC 918, are a clear mandate that children removed from foreign jurisdictions need to be returned to the country of their habitual residence on the comity of Courts principle for determination of their best interests and welfare which is the paramount consideration. The watershed verdict by the Supreme Court in Ruchi Majoo AIR 2011 SC 1952, clearly identifying the extra ordinary jurisdiction of the writ Court to examine the matter independently, whilst limiting the jurisdiction of the Guardian Judge if the removed child is not “ordinarily resident” in his territorial limits, provides the much needed succinct clarity for Courts to follow as a law of the land. The latest decision of the Apex Court on 17 February 2015 in Roxann Sharma v Arun Sharma 2015 (2) Scale 488, whilst holding that forum or Court shopping requires to be firmly dealt with, recognises that relocation is now a well known legal concept requiring the entitlement of custody rights of the left behind spouse to be jurally investigated. Visitation, Guardianship and Custody have been well expounded in this latest Apex Court verdict holding 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. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the Mother and this expectation can be deviated from only for strong reasons.” Thankfully, the Courts of the country are guided by these laudable precedents in day to day custody disputes in which fragile sentiments of tender minds are fiercely adjudicated.

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Latest Supreme Court view

The Apex Court judgement dated 27 February 2015 in Surya Vadanan v State of Tamilnadu JT 2015 (3) SC 85 directing return of two girl children of six and ten years respectively to UK in compliance with British Court orders lays down salutary general principles to be followed as a mandate in child removal matters. The Supreme Court holds that the two main principles in such matters are comity of Courts and the best interest of welfare of the child. The judgment elaborates that “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”. Very lucidly, the judgment holds that if there is a pre-existing order of child custody of a foreign court of competent jurisdiction and the domestic Indian court decides to conduct an elaborate inquiry, they must be special reasons to do so. Laying down guidelines, the judgment holds that 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 parent move the foreign or domestic court 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. This elaborate judgment authored by a Bench of Justice Madan B Lokur and Justice U U Lalit is water shed in this new emerging jurisprudence on child abduction law holding that domestic courts must respect foreign courts orders in matrimonial disputes overseas parents. This erudite mandate of law deserves commendations for its clarity.

A much needed law

A fugitive non-resident Indian parent declared a proclaimed offender in matrimonial proceedings may not even be able to see or talk to his children removed to India. An anguished parent armed with a foreign Court order and unsuccessful in its enforcement in India, attempts to abduct his own child in an attempt to repeat what the other parent did. A foreign court refuses to permit non-resident Indian children to come to India and likewise local Courts may decline to implement foreign Court orders directing return of such children. Conflicting, parallel and inconsistent directions result in parallel child custody proceedings in foreign and Indian Courts. A stalemate and deadlock ensues. These occurrences are now finding daily mention but no straight forward resolution under any Indian law. International parental child abduction defined as the removal or retention of a child across international border by one parent which is either in contravention of Court orders or is without the consent of the other parent, is sadly an increasing phenomenon which causes acute emotional distress to the abducted child.

Today, removal of children across borders has a dual carriage way dimension. Earlier cases of foreign children brought to India against parental consent were common citations. Now, the reverse is also true and child removal from India makes it a two way street. However, how would Indian Courts deal with situations when Indian children were removed to foreign jurisdictions in violation of local court orders or parental wishes. Which law would apply and how would it extend to a foreign country. Clearly, there is no international law or instrument that can be invoked and the only remedy with the aggrieved parent is to invoke the national law of the foreign country where the child is wrongfully retained. Easier said than done. Visa formalities, travelling expenses, litigation costs and above all foreign court procedures would be insurmountable deterrence. It seems the problem defies solutions and workable remedies.

Proposal for seminar discussion

The Apex Court judgement dated 27 February 2015 in Surya Vadanan v State of Tamil Nadu JT 2015 (3) SC 85 has laid down guidelines in the shape of practice directions after summarising the entire law on the point. In the absence of any codified law on the subject, this verdict gives the much needed guidance on principles to be followed whilst deciding inter parental cross border child custody disputes. A discussion among participants would greatly facilitate adoption of a uniform line of thinking to give consistency in dispensation of justice till a legislative solution emerges. Since this developing jurisprudence of private international law is emerging as a highly contested dispute jurisdiction, there is an emergent need for an interactive seminar to provide a platform for a serious deliberation on this subject.

Proposed programme of the evening seminar at IIC, New Delhi 

1. There will be a panel discussion with interactive questions and answers with six to seven panelists and no formal individual presentations of panelists as they will only respond to questions circulated to them in advance. Hon’ble Mr. Justice A.K. Sikri, Judge, Supreme Court of India will Chair the discussion. The questions will be put to the panelists by Anil Malhotra, Advocate.

2. The panel discussion will be followed by an open audience question and answer session wherein individual panelists may be requested to give their responses.

3. The seminar will be followed by dinner at the same IIC premises, New Delhi.