ENFORCING THE UN CONVENTION ON THE RIGHTS OF THE CHILD:THE ROLE OF DOMESTIC COURTS-AN INDIAN PERSPECTIVE BY ANIL MALHOTRA* AND ANKIT MALHOTRA**
- anilmalhotra1960
- Jan 9
- 7 min read
THE ROLE OF DOMESTIC COURTS-AN INDIAN PERSPECTIVE
BY ANIL MALHOTRA* AND ANKIT MALHOTRA*
As of May 2024, the global Indian diaspora comprises approximately 35.42 million individuals, including about 15.85 million Non-Resident Indians (NRIs) and nearly 19.57 million Persons of Indian Origin (PIOs) necessitates the evolution of robust legal frameworks to address transnational conflicts within private international law. India’s domestic laws, however, struggle to cope with the complexities of cross-border family disputes, including issues such as parental child abduction, adoption, matrimonial property division, and “limping marriages.” The lack of comprehensive statutory remedies and alignment with international legal instruments often results in fragmented adjudication, forcing courts to rely on outdated legislation and ad hoc judicial interpretations. This paper examines the contemporary role of international conventions as sources of private international law from an Indian perspective. It explores key areas where India’s domestic legal regime could benefit from accession to international instruments such as the Hague Convention on Civil Aspects of International Child Abduction and the Hague Adoption Convention. For instance, international parental child abduction remains a critical challenge in India, which is not a signatory to the 1980 Hague Convention. As a result, cases often rely on judicial innovations such as mirror orders, parens patriae jurisdiction, and writs of habeas corpus, which attempt to uphold the welfare of the child while navigating jurisdictional constraints. Hence, as of now, the United Nations Convention on the Rights of the Child (UNCRC) ratified by India on December 11, 1992 and whose beneficial provisions are incorporated in the Juvenile Justice (Care and Protection of Children) Act, 2015 hold the fort. Section 2(9) of the Juvenile Justice Act, 2015 defining the “best interest of child” to mean “the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development” guides the parens patriae jurisdiction of superior Indian Constitutional Courts in enforcing the UNCRC for domestic application within India.
International Child Abduction in India
International parental child abduction is an important contemporary legal issue which risks abducted children not being returned to their country of habitual residence because of the operation of the various legal systems of the countries involved. Support is available for those countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (hereafter the Convention). However, when a child is abducted between countries which are not part of this global collaboration, it is the domestic law of the countries to which the child has been taken, or in which the child has been retained, that will govern the issue. This creates uncertainty over whether the child will be returned to the State of habitual residence, and it is the innocent children who suffer in such situations.
Families with connections to more than one country face additional problems if the parental relationship breaks down. The common human reaction, in this already difficult time, may be to return to one’s family and country of origin with the children born out of such relationships. 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 international child abduction. India is not a signatory to the Convention, now acceded to by 103 countries. This means that, if a child is abducted to India, it will be the Indian domestic legal system that will decide whether the child is to be returned to their State of habitual residence or to remain in India. The concept of child abduction is not clearly defined in any relevant Indian legislation or statute. As a matter of convention or common parlance, it has come to mean the removal of a child from the care of one parent with whom the child normally lived when in cohabitation with both parents. Child custody, and the vexed question of international parental child abduction, not being subject to legislative definition, remains a subject of varying judicial interpretation from the Supreme Court in India.
The Parens Patriae Writ Jurisdiction
Against the backdrop of this statutory position, the Supreme Court and the High Courts in India, in the exercise of their extraordinary writ jurisdiction under Articles 32 and 226 of the Constitution of India respectively, can issue a prerogative writ of Habeas Corpus exercising jurisdiction as parens patriae in their best discretion to adjudicate upon conflicting claims of parents for the welfare of children. Hence, the evolution of helpful, positive and constructive interpretations of existing statutory laws on inter-parental child custody issues has been a progressive phenomenon emerging through judgments of the various High Courts in India based on varying precedent settled by the Supreme Court of India from time to time. The writ of Habeas Corpus for seeking the implementation of child rights where the parents are in dispute over the custody of their offspring was settled by the Supreme Court of India in Gohar Begum v Saggi alias Nazma Begum,[1] by following principles applicable to such writs in England to deliver the custody of infants. In Nil Ratan Kundu v Abhijit Kundu.
Best Interests of the Child
When India became a signatory to the United Nations Convention on the Rights of the Child (UNCRC) on 11 December 1992, steps were taken to secure the best interests of the child in India. Accordingly, section 2(9) of the Juvenile Justice (Care and Protection of Children) Act 2015 (JJ Act) now states that the ‘best interest of the child means the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social wellbeing and physical, emotional and intellectual development.’ The definition of the best interest of the child has been expounded by the Supreme Court in Lahari Sakhamuri[2]
The Evolving Use and Utility of Mirror Orders
Typically, mirror orders arise when two courts in different jurisdictions adopt equivalent custody or protective provisions to ensure consistency and enforceability. However, in this case, the Family Court of Delhi’s ruling does not explicitly constitute a mirror order by itself. The mirror-like nature of the orders only becomes evident in subsequent proceedings, particularly through the interaction between the Indian and U.S. courts.
The noteworthy evolving jurisprudence in Dr Navtej Singh v State of NCT[3] is noted in the compliance made by the US court in passing ‘mirror orders’ for implementation of the directions of the Delhi High Court judgment dated 6 March 2018 in Dr Navtej Singh[4] as a condition precedent for directing the return of the mother along with the two children to the US. The Delhi High Court had directed that the father to move the US Court to set aside the US Court orders dated 17 November 2016 and 25 January 2017.
Maintainability of Habeas Corpus for the Welfare of Children
In Tejaswini Gaud & Ors v Shekhar Jagdish Prasad Tewari & Ors,[5] the Supreme Court has held that in matters of child removal, Habeas Corpus is a prerogative writ which is an extraordinary remedy addressed to the discretion of the court for the welfare of the child and not to justify, or examine, the legality of the custody. It can be invoked when children are removed from foreign countries and brought to India. Though the provisions of special statutes govern the rights of parents or guardians, the welfare of the minor is the supreme paramount consideration in cases concerning custody of minor children.
India and the 1980 Hague Convention Report of Justice Rajesh Bindal Committee
The Ministry of Women and Child Development established a 13-member high level Committee, on 18 May 2017, to examine issues relating to international parental child abduction. Model legislation was suggested to safeguard the interests of parents and children both within India and beyond its territorial borders. A concept note on the proposition was published by the Committee to elicit public views, comments and suggestions at an international level. Thereafter, video-conference interactions and direct meetings took place in New Delhi and Bangalore with left-behind parents located domestically and internationally. The opinions of stakeholders, institutions and foreign missions who had viewpoints to express were also obtained.
Committee considered difficulties faced by parents if a domestic court in India were to order an abducted child to be returned to their country of habitual residence. Issues of concern that may be faced abroad pertained to legal protection from spousal violence, maintenance, immunity from criminal prosecution, litigation costs, custody and visitation rights. The Committee emphasized the role of mediation methods which could help warring parents to resolve their differences in the best interests of their children, and a strong mediation mechanism was proposed as an alternative to belligerent court battles.
The proposed legislation drafted by the Committee, the Protection of Children (Inter-Country Removal and Retention) Bill 2018, defined, for the first time, wrongful removal or retention of children as an act that breached rights of custody actually exercised before such violation occurred by a natural parent, by reason of a judicial order, operation of law or an agreement.
Notwithstanding the outstanding efforts of those involved, the Bill did not become law and India currently remains a non-Convention country. The evolving mirror order jurisprudence in child custody matters in India, under which the US Court passed mirror order directions to comply with the judgment of the Delhi High Court, may be a possible way forward to establish a precedent for the return of children to their homes of foreign jurisdictions. This mirror order formula, evolved by judicial mechanisms through the far-sighted wisdom of the Indian courts, aims to ensure the best interests and welfare of the children, as well as to provide them with a family life encompassing the love, care and affection of both parents.
*IAFL Fellow, Managing Partner, Malhotra & Malhotra Associates, India.
Email: anilmalhotra1960@gmail.com, Website: https://www.anilmalhotra.co.in,
**Advocate, Malhotra & Malhotra Associates, India. LL.M [London] Felix Scholar, School of Oriental &African Studies, University of London, London.
Email: ankitmalhotra97@gmail.com,
Website: https://www.ankitmalhotra.co.in
[1] Gohar Begum v Saggi alias Nazma Begum AIR 1960 SC 93.
[2] Lahari Sakhamuri2019 SCC Online SC 3951.
[3]Ibid 30
[4] Ibid 30
[5] Tejaswini Gaud & Ors v Shekhar Jagdish Prasad Tewari & Ors (2019) 7 SCC 42.
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