‘Jurisdiction of Indian courts not barred in child custody cases’


The Supreme Court has held that jurisdiction of Indian courts is not barred while dealing with a case of custody of a child removed by a parent from a foreign country to India in contravention of the orders of the court where the parties had set up their matrimonial home.

Giving this ruling, a Bench of Justices V.S. Sirpurkar and T.S. Thakur said: “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.”

Writing the judgment, Justice Thakur said: “Recognition of decrees and orders passed by foreign courts remains an eternal dilemma in as much as whenever called upon to do so. Courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 of the Cr.PC 1908 as amended by the Amendment Act of 1999 and 2002.”

The Bench said: “The duty of a Court exercising its Parens Patraie jurisdiction, as in cases involving custody of minor children, is all the more onerous. Welfare of the minor in such cases being the paramount consideration, the court has to approach the issue regarding the validity and enforcement of a foreign decree or order carefully. Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter.”

The Bench said: “Conflict of laws and jurisdictions in the realm of private international law is a phenomenon that has assumed greater dimensions with the spread of Indian diaspora across the globe. While intellectual content and technical skills of these youngster find them lucrative jobs in distant lands, complete assimilation with the culture, the ways of life and the social values prevalent in such countries do not come easy.”

It further said: “Experience has also shown that in a large number of cases one of the parties may return to the country of his or her origin for family support, shelter and stability. Unresolved disputes in such situations lead to legal proceedings in the country of origin as well as in the adoptive country. Once that happens, issues touching the jurisdiction of the courts examining the same as also comity of nations are thrown up for adjudication. The present happens to be one such case where legal proceedings have engaged the parties in a bitter battle for the custody of their only child, Kush, aged about 11 years, born in America, hence a citizen of that country by birth.”

In this case, the appellant, Ruchi Majoor, mother of the child, returned to India from the U.S. and obtained interim custody of the child from a trial court in Delhi.

On an appeal from the child’s father, Sanjev Majorr, the Delhi High Court set aside the order, holding that Indian courts had no jurisdiction to decide the issue since the father had already obtained an order from a U.S. court for the custody of the child.

The present appeal by the mother is directed against that order.

The Supreme Court disposed of the appeal while entrusting the child’s custody with the mother, but allowing visitation rights to the father.

Kumar V. Jahgirdhar, president of Children’s Rights Initiative for Shared Parenting (CRISP), a Bangalore-based NGO, reacting to the judgment, said: “In cases relating to international child abduction, the left behind parents, mostly fathers, are deprived of the child custody. The only solution for preventing this crime is India should immediately sign the Hague Convention on International Child Abduction.”

German surrogate twins: Can adoption be a way out, court asks

New Delhi, Jan 18 (IANS) The twins of a German couple born to an Indian surrogate mother may have a chance to go to Germany – if the couple decides to adopt them. The Supreme Court asked the couple if they would consider adopting the two-year-olds as Germany does not recognise surrogate motherhood. The apex court Monday asked Jan Balaaz and his wife if they would consider adopting the children after Solicitor General Gopal Subramanium told the court that Germany does not recognise surrogate motherhood, but allows international adoption of children by its citizens.

Subramanium told the bench of Justice G.S. Singhvi and Justice Asok Ganguly that in the given scenario, the German couple may consider adopting the twins.He gave the information during hearing of a lawsuit by the government challenging the Gujarat High Court ruling which had directed the government to give Indian passport to the twins born to Jan Balaaz and his wife through a surrogate Indian mother.

The apex court has asked the couple to take their decision and apprise it within two days. The apex court on Jan 4 asked the central government to try to settle the tangled issue of citizenship of the twins through diplomatic channels. The children were born to Gujarati surrogate mother Marthaben. The government is opposed to grant an Indian passport to the twins on the ground that it would mean granting them Indian citizenship. The Gujarat High Court in its order on a lawsuit by the German couple ordered passports for the twins born in January 2008.

The couple came to India in December 2006 in search of a surrogate mother and entered into an agreement with Marthaben, according to which she lost her right over the child after delivery.On the plea of the German couple last month, the apex court asked the government to provide travel documents to the twins within 48 hours, while asking them to approach the German embassy for visa to the twins.


Adoption norms to be streamlined

July 11,Hindustan Times

The government, in a new set of regulations for child adoption, have proposed that parents who have given their children up for adoption cannot claim them back again.

The draft guidelines on the adoption of Indian children without parental care, released on Wednesday, proposes to bring adoption of orphaned, abandoned or surrendered children under the Juvenile Justice Act, 2006, thereby giving legal sanctity to the adoption process.

JK Mittal, chairperson of the Central Adoption Resource Agency (CARA), said: “Once child adoption comes under the JJ Act, there will be uniformity in the child adoption process in the country.

Secondly, adoption will mean legal separation of the child from his or her biological parents.”

Under the new guidelines, the time required for adoption has been reduced to three months from the existing six months. “The courts will have to settle adoption claims in two months as per the JJ Act,” Mittal said.

The government also wants to adopt the international child adoption standards. For this, Hague convention regulations have been incorporated in the proposed guidelines. It will result in the child getting citizenship immediately after touching the country of his or her adoption. Normally, it takes two-three months.

Inter-country adoption will not be allowed through an agency anymore. Foreigners will have to apply directly to CARA, which will then direct them to a registered agency for child adoption. “It will break the nexus between agencies,” Mittal said.

The guidelines also propose mandatory state government registration of all childcare homes. Women and Child Development Minister Renuka Chowdhury said the Centre will make HIV/AIDS test mandatory for all children admitted by the adoption agencies. CARA will also create a central data bank on children for adoption within India and outside.