J VENKATESAN IN THE HINDU
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.”
Initiatives for Protection and Welfare of Overseas Indian Workers Indian missions in the Emigration Check Required (ECR) countries, except Qatar have not reported any incidents of atrocities particularly targeting Indian workers. However, cases of complaints from Indian Workers related to fraudulent offers for overseas employment, contractual violations and cheating on the part of foreign employers/ recruiting agents are received in the Missions in ECR countries from time to time. Embassy of India, Qatar has reported that 20 complaints of human rights violations were received during the last two years. Whenever, a complaint is received, action is initiated by the Ministry for suspension or cancellation of the Registration Certificate of the Recruiting Agent. If required, he is also prosecuted through the State Police. Complaints filed against illegal agents are referred to the State Governments for filing criminal cases against them. Whenever there is a complaint against a foreign employer, proceedings for black listing such an employer are initiated. Indian missions also take up these issues with the foreign employers/local governments to protect the interest of the workers.
The Government has taken several initiatives for the protection and welfare of Overseas Indian Workers which include: –
(i) A Nation wide Awareness-cum-Publicity Campaign through media has been launched to educate the intending emigrants about legal emigration procedures, risks of illegal migration and precautions to be taken during emigration.
(ii) The Ministry has set up the Indian Community Welfare Fund (ICWF) in 42 Countries for providing onsite support and financial assistance to Indian workers in distress.
(iii) The Government has established an Overseas Workers Resource Centre (OWRC) which is a 24×7 hour telephone helpline which provides information to intending emigrants as well as emigrants on all aspects of emigration. Complaints can also be lodged through this helpline. (iv) India had signed Labour Agreements with Jordan and Qatar in 1980s to protect the interests of the Indian Workers. Memoranda of Understanding (MOU) were signed with United Arab Emirates (UAE) in December, 2006, with Kuwait in April, 2007, with Oman in November 2008, with Malaysia in January 2009, and with Bahrain in June 2009. An Additional Protocol to the existing Labour Agreement between India and Qatar was signed in November, 2007.
(V) Under these MOUs Joint Working Groups (JWGs) have been constituted that meet regularly in order to resolve bilateral labour issues including the cases of atrocities which come to notice from time to time. These MOUs enhance bilateral co-operation in management of migration and protection of labour welfare.
PKM (Release ID :67596)
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