A recent judgment of the Supreme Court provides some direction in the ever-increasing battles for custody of children. But a legislative framework is also urgently required so that decisions are not just left to judicial subjectivity
Anil Malhotra in THE TRIBUNE CHANDIGARH
The world has shrunk. Inter-continental travel is easier, affordable, faster and comfortable. As a corollary, it has lead to a surge in relationships between individuals of different nationalities and diverse backgrounds. International mobility has dismantled inter-cultural taboos. But when marriages break down, the children become the worst victims. Caught in the cross fire of broken human relationships with ensuing disputes over custody and relocation, children are traumatised and torn between parents. Attempts are often made to remove the children and take them to other countries. The hazards of international child removal are accentuated by the chronic problems of maintaining access or contact internationally and have often defied legal solutions.
However, the Supreme Court of India on 13 May, in a cross-border child custody battle, has laid down principles and created a precedent which is bound to have wide-ranging impact. The matter arose in a US based NRI couple’s case. The wife left her husband in the US and returned to India with her son. She moved a Delhi Guardian Court and got custody rights. In a suit filed in the USA by her estranged husband, who claimed that his wife had abducted the child, a US Court issued a red corner notice against the wife and directed her to return to the USA.
While the wife, who had decided to settle down in India, took refuge in a Delhi district court order allowing her custody of her son, the husband filed an appeal before the Delhi High Court, which set aside the lower court’s order. It upheld the appeal and ruled that since a US court had already issued an order in the custody case and since the parents and the child were all American citizens, Indian courts had no jurisdiction in the matter and all issues needed to be agitated before courts in the USA. The wife then preferred an appeal to the Supreme Court.
The Apex Court this month set aside the judgment of the Delhi High Court and directed that while the proceedings shall go on before the Delhi Guardian Judge to be disposed off as expeditiously as possible, till then, the interim custody will remain with the mother and the father will enjoy visitation rights only.
The Apex Court culled out three questions for determination. The first question related to the jurisdiction of the ‘Guardian Judge’ to entertain the petition for adjudicating custody issues. Interpreting the phrase “ordinarily resident”, the Court held that the intention of parties would also go to determine this important question. The fact that the child was studying and residing in Delhi for the past three years, the court held, had clearly established that both the mother and the child were ‘ordinarily residents of Delhi’. E-mails produced by the wife as evidence also established that the father of the child was a party to this arrangement. Hence, it concluded, the Guadian judge in Delhi had the jurisdiction and competence to decide the custody rights.
The Court also held that the jurisdiction of the Guardian Judge could not be declined on the principle of comity of Courts. Examining earlier precedents, the Court ruled that proceedings in Habeas Corpus matters are summary in nature which may lead to determination of custody issues when the child is within the jurisdiction of the High Court. Distinguishing and contrasting Guardianship proceedings based on evidence, it has been held that if the removed child is not ordinarily resident within its jurisdiction, the Guardian Judge has no jurisdiction to entertain the proceedings even if it is an act of violation of a foreign Court custody order.
Disapproving of the application of the “Comity of Courts” principle in the matter, the Supreme Court held that no foreign court order had been violated by the wife. There was no final decision by any US Court, the minor was voluntarily in India and there was no intention of the wife and the child to return to the USA. The Supreme Court held that the interest of the minor would be better served if the mother continued to have the custody of the child, which was also a more acceptable option.
With all fairness to the husband, the Supreme Court in the third question also modified the order of the Guardian Judge and granted visitation rights to him during the pendency of the petition before the Court in Delhi. Holding that the “father’s care and guidance” is necessary at the “formative and impressionable stage” of the child’s life, the Court viewed that for the “child’s healthy growth and to stay in touch and share moments of joy, learning and happiness with each other”, the father be granted visitation rights through telephonic contact, video conferencing and visits during vacations as determined by the Guardian Judge. This was indeed a humane and a benevolent view of the whole situation.
The well settled and balanced verdict is a harmonious blend of legal principles, a positive interpretation of parental rights, a decisive pronouncement of jurisdictional issues and brings out a confluence of earlier precedents by distinguishing them on factual basis. It is a much needed decree of the Apex Court on legal battles over child removal and normally fought on uncertain grounds with no legislation on the subject. There is, therefore, a dire need to enact a statutory law on inter-parental child removal to be uniformly followed in all such matters. An appropriate legislative solution will be in the larger interests of children. The yeoman effort by the Courts to carve out solutions on a case to case basis can only be a time consuming exercise which cannot be stretched indefinitely.
With the increasing number of Indians migrating to other countries and the growing number of Overseas Citizens of India status, inter-parental child removal needs to be resolved on an international platform. It is no longer a local problem. The phenomenon is global. Parallel Court proceedings in two jurisdictions by warring parents reduce the child to be won over as a trophy at the end of a legal war. Steps have to be taken by joining hands globally to resolve these conflicts by interaction of Courts and countries.
Till India does not become a signatory to the Hague Convention on Civil Aspects of International Child Abduction, this cannot be achieved. It is equally important to create a domestic uniform law with clear, authentic and universal child custody principles before India accedes to the Convention. The machinery to implement the convention must first be devised. Divergent views only divide children. Removed children cannot be allowed to live on a no man’s land. The temptation to wrongfully remove children must be deterred. The cruel abduction of children must find a legislative solution forthwith.
The writer, a lawyer, has authored several books including “India, NRIs and the Law” and is a member of the U.T. NRI Cell, Chandigarh.
Fresh guideline laid down by the Supreme Court of India
The Supreme Court laid down the following principles in its judgment on the case delivered earlier in May.
The expression “Ordinarily resides” in Guardian & Wards Act to be determined also by ‘intention’ of parties and not merely on residence abroad or overseas nationality.
Custody Orders issued by foreign courts not to be taken as conclusive and binding but should be considered as just one of the factors or consideration that would go into the making of a final decision by an Indian Court. “Objectivity and not abject surrender is the mantra in such cases, ” says the apex court’s order.
Habeas Corpus petitions being summary in nature can determine custody issue of children present in its jurisdiction and also embark upon a detailed enquiry in cases where welfare of a minor is in question. In Habeas Corpus proceedings, the legality of the detention of the alleged detenue in the territorial jurisdiction of the Court will be gone into.
The principle of “Comity of Courts” in child custody cases has generally held that foreign judgments are unconditionally conclusive. However, welfare of the minor being paramount, the Supreme Court now says, Indian Courts are duty bound to examine the matter “taking the foreign Judgment only as an input for final consideration.”
(Judgment delivered by Justice Tirath Singh Thakur for the bench on May 13)
No quick fix solution in custodial conflicts
The number of cases related to inter-parental child custody conflicts has gone up sharply. As more and more marriages fall apart, Non-Resident Indian parents often remove their children to India or to foreign jurisdictions either in violation of a foreign court custody order or in infringement of the other spouse’s parental rights.
The Hague Convention, a multilateral treaty developed by the Hague Conference on Private International Law provides an expeditious method of returning a child taken from one member nation to another.
But though the Convention concluded on 25 October 1980 and the treaty became effective from 1 December 1983, India is still not a signatory despite the fact that it has been accepted by 80 nations so far.
The Convention was drafted to “ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence.”
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. The Convention applies only to children under the age of 16.
But “Inter-parental child abduction” is neither defined nor is it an offence under any statutory law in India. Hence, it is extremely difficult to prove or establish child removal at the hands of a parent who is a natural guardian of the child.
The most expeditious remedy is to file a Writ of Habeas Corpus in the High Court or the Supreme Court for return of custody by a parent on the strength of a foreign Court order or in violation of parental rights.
The alternative remedy is to initiate guardianship proceedings under the Guardian and Wards Act, 1890 by leading evidence and placing all cogent material on the record before a Guardian Judge. Process is cumbersome, tedious and time consuming. Also difficult and slow for a foreign parent.
In 1984, in Surinder Kaur Vs. Harbax Singh Sandhu & in 1987, in Elizabeth Dinshaw Vs.Arvind M. Dinshaw, the Supreme Court exercising its summary jurisdiction returned the removed minor children to the foreign country of their origin on the basis of foreign court custody orders.
In 1998, in Dhanwanti Joshi Vs. Madhav Unde & in 2000, in Sarita Sharma Vs. Sushil Sharma, the Courts favored keeping the child’s welfare and best interests in mind over all other aspects. Accordingly, Foreign court orders became only one consideration in child custody disputes which were to be decided on the merits of each case without any summary return.
In 2010, in V. Ravi Chandran Vs. UOI and again in 2010 in Shilpa Aggarwal Vs. Aviral Mittal, the Supreme Court, following Habeas Corpus petitions, directed the summary return of children to USA and UK respectively, leaving all aspects relating to child welfare to be investigated by Courts in the foreign jurisdiction.
In May 2011, in Ruchi Majoo Vs. Sanjeev Majoo, in an appeal, in a Guardian and Wards petition, the Supreme Court has directed that the proceedings for deciding custody rights shall go on before the Guardian Judge at Delhi and till then the interim custody shall be with the mother. The father has been given visitation rights.
Why should India be interested in joining the 1980 convention?
India is no longer impervious to international inter-parental child removal
The present situation plays into the hands of the abducting parent
The offending parent at times usurps the role of the competent Court
India’s non-signatory status has a negative influence on a foreign Judge who often declines a parent from taking the child to India fearing non-return.
The Convention avoids the problems that may arise in Courts of different countries which are equally competent to decide such issues
The best possible solution would be to become a signatory to the Hague Convention and enact a Indian International Child Abduction Law and create a Central Authority for liaison and for seeking adjudication before designated existing Indian Courts to resolve such disputes to decide summary return or to render decisions on merit. In the interest of children, the stalemate must end.