Conflict of Jurisdictions in Interparental Child Custody

Disputes  – The Indian Experience

By *Anil Malhotra and Ranjit Malhotra

Malhotra & Malhotra Associates, Chandigarh, India

PAPER PRESENTED AT THE FOURTH INTERNATIONAL CONFERENCE ON PRIVATE INTERNATIONAL LAW, ORGANISED BY THE INDIAN SOCIETY OF LAW AT NEW DELHI ON 2-3 DECEMBER 2006.

 

 

I) INTRODUCTION

The world is a far smaller place now than it was a decade ago. Inter country and inter continental travel is easier and more affordable than it has ever been. The corollary to this is an increase in relationships between individuals of different nationalities and from different cultural backgrounds. Logically, the world in which we and our children live has grown immensely complex. It is filled with 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. Caught in cross fire of broken relationships with ensuing disputes over custody and relocation, the hazards of international abduction loom large over the chronic problems of maintaining access or contact internationally with the uphill struggle of securing cross frontier child support. In a population of over a billion Indians, 25 million are non-resident Indians who by migrating to different jurisdictions have generated a new crop of spousal and family disputes.

 

Migration urges travel and borders divide non-resident Indians who settle in foreign lands. Foreigners too venture into India for permanent abode. Cross border family relationships arising from such exchange has carved out a new niche in the jurisdiction of family law disputes. Such problems have no readymade solutions in the conventional legislations prevailing within the legal system in India. The net result : the innovative judicial system in India with its dynamic jurisprudence when invoked provides a tailor made answer for every individual case. But then, this does not provide a consistent, uniform and universal remedy to be adhered to in an international perspective. What then is the answer in a highly sensitive area of family law disputes involving conflict of jurisdictions in inter parental child custody cases when children are removed to India in violation of interparental rights or infringement of foreign court orders.

 

II) DEFINITION OF CHILD REMOVAL

Families with connections to more than one country face unique problems if their relationship breaks down. The human reaction in this already difficult time is often to return to one’s family and country of origin with the children of the relationship. If this is done without the approval of the other parent or permission from a Court, a parent taking children from one country to another may, whether inadvertently or not, be committing child removal or inter parental child abduction. This concept is not clearly defined in any relevant legislation. As a matter of convention, it has come to mean the removal of a child from the care of the person with whom the child normally lives.

 

A broader definition encompasses the removal of a child from his / her environment, where the removal interferes with parental rights or right to contact. Removal in this context refers to removal by parents or members of the extended family. It does not include independent removal by strangers. The Convention on the Civil Aspects of International Child Abduction signed at the Hague on October 25, 1980 with 75 contracting countries today as parties from all regions of the globe, however defines removal or detention wrongful in the following words.

“Article 3"

The removal or the retention of a child is to be considered wrongful where:

 

(a)           it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

 

(b)           at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

 

Child removal does not find any specific definition in the Indian statute books and since India is not a signatory to the Hague Convention, there is no parallel Indian legislation enacted to give the force of law to the Hague Convention. Hence, in India all interpretations of the concept of child removal are based on judicial innovation in precedents of case law decided by Indian courts in disputes between litigating parents of Indian and / or foreign origin.

 

III) THE INDIAN EXAMPLE

India not being a signatory to the Hague Convention of 1980 on the Civil Aspects of International Child Abduction, questions regarding the custody of such children are now considered by the Indian Courts on the merits of each case bearing the welfare of the child to be of paramount importance while considering the order made by the foreign Court to be only one of the relevant factors in such decision.

 

The High Courts and the Supreme Court in India entertain petitions for issuance of a writ of habeas corpus for securing the custody of the minor at the behest of a parent who lands on Indian soil alleging violation of a foreign Court custody order or seeks the return of children to the country of their parent jurisdiction. Invoking of this judicial remedy provides the quickest and most effective speedy solution.

A quick summary of Indian law laying down the position is as hereunder :

 

i)              Surinder Kaur Vs. Harbax Singh Sandhu 1984 HLR 780 SC holding that the provisions of the Hindu Minority and Guardianship Act, 1956 cannot supercede the paramount consideration as what is conducive to the welfare of the child

 

ii)             Elizabeth Dinshaw Vs. Arvand M. Dinshaw AIR 1987 SC 3 upholding the right of a foreigner mother to directly invoke the jurisdiction of the Supreme Court to seek the custody of a minor child from his father on the principle that the matter is to be decided not on the considerations of the legal rights of the parties but on the sole and predominant criterion of the best interest of the minor child.

 

iii)            Kuldeep Sidhu Vs. Chanan Singh AIR 1989 P&H 103 wherein in a criminal writ petition it was held that the welfare of the children who were Canadian citizens would override any consented custody arrangement and the children have a right to be brought up in the culture and environment of the country of their birth.

 

iv)           Atya Shamim Vs. Deputy Commissioner / Collector Delhi AIR 1999 J&K 140 wherein a habeas corpus petition by a person who was not a citizen of India was held to be maintainable to secure the custody of a minor

 

v)            Dhanwanti Joshi Vs. Madhav Unde 1998 (1) SCC 112 wherein it was held that the Court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the Foreign Court as only a factor to be taken into consideration unless the Court thinks it fit to exercise summary jurisdiction in the interest of the child and that its prompt return is for the child’s welfare.

 

vi)           Paul Mohinder Gahum Vs. State of NCT of Delhi 2005 (1) HLR 428, upholding the maintainability of a habeas corpus petition, the Hon’ble High Court held that the orders passed by foreign Courts granting custody take a back seat in preference to what lies in the best interest of the minor rather than what a foreign court has directed.

 

vii)          Eugenia Archetti Abdullah Vs. State of Kerala HLR 2005 (1) (Ker) 34 upholding the right of the US citizen petitioner mother in a habeas corpus petition, the custody of the children was handed over to the mother after holding that the High Court can exercise jurisdiction under Article 226.

 

viii)         Veena Kapoor Vs Varinder Kumar Kapoor AIR 1982 SC 792 holding that in matters concerning the custody of minor children in a habeas corpus petition where parents are separated, the paramount consideration is the welfare of the minor and not the legal rights of the respective parties.

 

ix)            Poonam Datta Vs. Krishanlal Datta and others AIR 1989 SC 401, the Apex Court hearing an appeal against a decision by the High Court in a habeas corpus petition, directed an arrangement to be maintained until either parties went in for an appropriate guardianship proceeding.

 x) Manju Tiwari Vs. Rajendra Tiwari AIR 1990 SC 1156, the Apex Court in a habeas corpus petition directed that the custody of the child be given to the mother with visitation rights to the father who was at liberty to apply for custody of the child in appropriate guardianship proceeding.

 

xi)            Kumar V Jahgirdar Vs. Chethana Ramatheertha 2004 (1) HLR SC 468, the Apex Court upholding the decision of the High Court came to the conclusion that a female child of growing age needs company more of her mother compared to the father and remarriage of the mother is not a disqualification in safeguarding interest of the child.

 

xii)           In Radha @ Parimala Vs. N. Rangappa 2004 (2) HLR 416 Kar., it was held that in entrusting the custody of a minor child, the Court should take into account all relevant circumstances including social and religious environment of the family, the quality of immediate neighbourhood and locality in which a particular parent resides, financial position of the parties, education facilities for the minor concerned, the controlling consideration governing the custody of the minor children is the welfare of the children and not the rights of party as welfare of the child is the paramount factor.

 Therefore, from a overall reading of the above matters decided by different Indian Courts, it may be said that irrespective of any Foreign Court custody order, Indian Courts generally adjudicate matters of child removal by considering the best interest of the child as a paramount consideration for settling such issues.

 

IV) RECENT DECISIONS

 

a) In a judgment dated March 3, 2006 of the High Court of Bombay at Goa , reported as Mandy Jane Collins Vs James Michael Collins , 2006(2) Hindu Law Reporter 446, between a 62 years old American father and 39 years old British mother resident in Ireland and who were litigating over the custody of their 8 year old minor daughter said to be illegally detained in Goa by the father, the Court declining the issuance of a writ of habeas corpus held that the parties could pursue their remedies in normal civil proceedings in Goa. The Court dismissing the mother’s plea for custody concluded that the question of permitting the child to be taken to Ireland without first adjudicating upon the rival contentions of the parents in normal civil proceedings in Goa is not possible and directed that status quo be observed. This in effect means that the 8 year old minor girl continues to live in Goa without her mother or any other female family member in the father’s house. In a challenge to this decision by the mother before the Supreme Court of India, the appeal was dismissed on August 21, 2006, leaving it open to the parties to move the appropriate forum for the custody of the child, which if done, was directed by the Supreme Court to be decided within a period of three months with earlier visitation rights continuing to the mother.

 

b) In another matter reported as Ranbir Singh Vs Satinder Kaur Mann, 2006 (3), Punjab Law Reporter 571, The Punjab and Haryana High Court declined to issue a Writ of Habeas Corpus to the petitioner father residing in Malaysia who was seeking release of his five year old son and three year old daughter from their mother’s custody in India . The High Court of Malaya at Kuala Lumpur had held that the petitioner was entitled to the legal guardianship of the said minor children. However, The High Court in India declining to enforce the foreign judgment of the Malaysian High Court, held that the matter can be reagitated before the appropriate forum with regard to the custody of the children on the basis of evidence to be adduced by parties. The Habeas Corpus petition was dismissed with the observation that it would be open to either parties to move for custody of the minor children under appropriate law before an appropriate forum.

 

V) THE INDIAN PERSPECTIVE

With increasing cross border migration, the Indian jurisdiction over the years has witnessed a large number of hotly contested illegal detention petitions filed in High Courts all over India both by foreign or non resident Indian parents alleging interparental child removal from foreign jurisdictions. Till a few years ago, as per the law settled by the Supreme Court of India, the foreign children born to one or both parents of Indian origin were normally returned to the country of their nationality and residence before removal. However, recent judgments mentioned above have shown that the Indian Courts now consider a foreign Court order as only one of the factors in deciding interparental child custody disputes and adjudicate upon the matter afresh on the principle of considering the best interest of the child as of paramount importance. But then, can the best interests of a foreign child born to foreign or non resident Indian parents be best decided on local parameters and as per local conditions by an Indian Court in an Indian jurisdiction. Would this be in the best interest of the removed child. Would it be appropriate to reward the erring parent with interim custody till the matter is adjudicated in regular custody proceedings in a Custody Court. Time factor, which is mostly essence of the matter swings the scale in such decisions.

 

VI) SOLUTIONS AND REMEDIES

The Hague Convention on Civil Aspects of International Child Abduction came into force on December 1, 1983 and has now 75 contracting nations to it. The Convention secures the prompt return of children wrongfully removed to or retained in any Contracting State and ensures the rights of custody and access under the laws of such Contracting States. India unfortunately, is not a signatory to the Hague Convention and from practical experience it can be stated that the principles laid down in the Convention are not applicable in India.

 

The above situation promotes and encourages child removal to India by an offending parent and deprives the child’s custody rights to be determined by the laws of the country where the child was normally resident. It also diverts the best interest of the child as the litigation in India gets converted into a fight of superior rights of parents whereas the real issue of the welfare of the child becomes subservient and subordinate. Practical experience also shows that foreign courts now largely disallow children from overseas jurisdictions to be brought to India apprehending that children will not be returned to the country of their residence. Instances are abound from US and UK where Non Resident Indian parents desperately seek advice and opinion on what to do as Courts of Law in these jurisdictions deny permission for children to be brought to India in child custody dispute. This perspective of conflict of jurisdictions needs immediate resolution.

 

VII) CONCLUSION

 In the totality of the emerging scenario, it is now practically seen that in the absence of any Indian legislation on the subject, there is no uniform pattern of decisions to resolve issues of custody and contact which arise when parents are separated and live in different countries. The recent decisions quoted above and another child custody dispute agitated in the Supreme Court of India where a US Court declined the return of children to India despite the Supreme Court’s directions shows that a time has now come for some international perspective in this regard. Situations also exist that whilst the parent in India moves the Court and seeks Habeas Corpus relief, the parent with the child abroad moves the foreign Court there and gets a restraint order. Both parents get equipped with judicial orders and the bi-continental custody battle picks up in two jurisdictions.

 

In January 2005, the British government appointed Lord Justice Thorpe as Head of International Family Law in the UK judicial system for promoting development of international instruments and conventions in the field of family law with greater International judicial collaboration. Pakistan has signed a Judicial protocol between the President of the Family Division of the High Court of London and the Chief Justice of the Supreme Court of Pakistan for cooperation between judicial authorities of the two countries on such issues.

 

The Hague Conference guides are a wealth of information on the subject. India has neither adapted to the same nor signed the convention. Though the jurisdiction of the High Court as an exclusive remedy for release from illegal detention in a writ of habeas corpus is not barred, but for a litigating parent from a foreign jurisdiction to convince the Indian Court to exercise such an option is an uphill task. It may be successful at times but now mostly it does not succeed. Where then is the remedy. What is the solution. Who will resolve it. How will it be done. Where are the answers. Who would provide them and when.

 

In the larger interest of children at risk, the conflict of jurisdiction of Courts must take a back seat. It is therefore, the need of the hour that the Indian legislature may consider enacting some legislation to protect the rights of the abducted child to resolve the clash between the rule of domicile and the nationality rule. May be, till this is done, the Supreme Court of India could well lay down some uniform guidelines to be consistently followed in interparental child abduction from foreign jurisdictions. India cannot be promoted as a haven for parking removed children.

 

*Authors Profiles

Anil Malhotra has been a practising Advocate at the Punjab and Haryana High Court, Chandigarh, India since September 1983 and regularly appears as Counsel in the Supreme Court of India at New Delhi and before other Courts, Commissions, Boards, Tribunals within India.