INTER PARENTAL CHILD REMOVAL & RELOCATION ISSUES IN INDIA: CHALLANGES, REMEDIES & SAFEGUARDS

Inter parental child removal & Relocation Issues in India:

Challenges, Remedies & Safeguards

By

Anil Malhotra* & Ankit Malhotra**

Introduction

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.

All codified personal laws of different religious communities in India identify biological parents as the natural guardians of their children. In the case of Hindus, section 6 of the Hindu Minority and Guardianship Act 1956 (HMGA) prescribes that the father is the natural guardian of a Hindu minor and, after him, the mother, provided that the custody of a minor who has not reached the age of five years shall ordinarily be with the mother. The paramount consideration under the HMGA for the appointment or declaration of any person as a guardian of a Hindu minor by a court is the welfare of the minor. However, in the absence of any statutory procedural remedy being available under the HMGA, all inter-parental child custody issues are invariably adjudicated through guardianship petitions under the Guardian and Wards Act 1890 (GWA), which is a secular law, and is invoked by all persons in India irrespective of religion and nationality. The Hindu Marriage Act 1955 (HMA) and the Special Marriage Act 1954 (SMA) also provide for the adjudication of custody issues of children as an ancillary issue in pending proceedings under the respective enactments. However, inter-parental, intra-country or inter-country child removal by a parent is not statutorily recognised as an offence or a wrongful act in India. In such a situation, the jurisprudence on the subject of inter-parental child removal in India has evolved through decisions in litigated cases involving guardianship and custody issues being periodically expounded by the courts.

In matters of intra-country child custody disputes, the law has been consistent that the determining paramount factor will be the welfare and the best interests of the children. Superior financial, or other, rights of litigating parents will be subordinate in such determinations and, wherever possible, the wishes of the child will be ascertained in adjudicating such disputes.

However, the vexed question of cross-border inter-parental child removal not finding any legislative definition remains a subject of varying judicial interpretation by the Supreme Court of India from time to time. Since India is not a signatory to the Convention, wrongful removal and retention of a child defies recognition and acceptance under codified Indian law, even though it is an offence internationally. A corpus of about 32 million non-resident Indians living globally in 208 countries with multifarious relationships creates immense potential for unresolved child custody disputes in those countries to result in a parent abducting their child to India in violation of the other parent’s right of custody in that foreign jurisdiction. The hapless child, tossed over continents, suffers in silence through no fault of his or her own.

Maintainability of Habeas Corpus as Parens Patriae to Return Children to Jurisdiction Which Has Closest and Most Intimate Contact

From the consistent position of settled law, it can be concluded that the ‘doctrine of jurisdiction of most intimate contact’ has been consistently followed by the Supreme Court in upholding the exercise of parens patriae jurisdiction in Habeas Corpus petitions filed before the High Court for return of children to foreign jurisdictions. This principle has not been deviated, differed, dissented or distinguished.

Exercising of Parens Patriae Jurisdiction for Directing Return of Children

The jurisdiction of closest contact to determine the welfare of the children lies with the foreign courts. The High Court in the Habeas Corpus petition rightly exercised its parens patriae jurisdiction to undertake an inquiry to reach the conclusion that it would be in the best interests of the minor children to return to the jurisdiction with which they have the closest connection and most intimate contact.[1]  Accordingly, the writ petition of Habeas Corpus for return of the minor children to the country of their original home was maintainable as the High Court exercised its parens patriae jurisdiction to examine the best interests of the minor children and passed directions for their return upon coming to the conclusion that it was in the welfare of the children to return to the country of their original home to decide their welfare and best interests.

Temporary Residence of the Mother is Not the Ordinary Residence of the Child

In JK v NS, it was held by the Delhi High Court that the residence of the minor cannot follow the residence of the mother and section 6(1) of the HMGA as ‘ordinarily’ vesting custody of the minor with the mother cannot be read into the GWA.[2] The residence of the mother as natural guardian under section 6 of the HMGA in respect of a Hindu minor less than five years of age does not determine the jurisdiction of a minor for the purposes of section 9 of the GWA determining jurisdiction ‘where the minor ordinarily resides’. The question as to ‘ordinary residence’ of a minor is always to be decided on the facts and particulars of each case. The expression ‘where the minor ordinarily resides' excludes places to which the minor may be removed at, or about, the time of the filing of the application for the enforcement of the guardianship and custody of the minor. Where the application is filed soon after such removal, the place of such removal has to be ignored for the purpose of determining the jurisdiction of the court to entertain the application. The new place, to which the minor may have gone or been removed to, cannot become the place of ordinary residence of the minor even after the minor has settled down at that place for a reasonably long period. The actual place of residence of the minor at the time of filing the application does not necessarily determine the jurisdiction of the court. Mere factual residence at a place at the time of a proceeding is not sufficient to confer jurisdiction. Ordinary residence means more than a temporary residence, even though such residence is spread over a long period.

Welfare of Children Not to be Superseded by Parental Rights

In Ashish v Anupama[3] the court stated:

19. Statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.

This was reiterated by the Supreme Court in Perry Kansagra v MadanKansagra[4]and, following this principle in JK v NS,[5]a child-centric jurisprudence has been upheld by the Delhi High Court to hold that the paramount welfare of children lies in joint parenting and not in sole custody.

The Supreme Court in its recent decision on inter parental child removal, dated 15 March 2019 in Civil Appeal No. 3135-316 of 2019 and Criminal Appeal No. 500 of 2019 Sakhamurivs Sobhan Kodali [6] upheld the two separate decisions of8 February 2018 of the High Court of Andhra Pradesh in Sobhan Kodali v The State of Telangana:

The expression “best interest of child ”which is always kept to be of paramount consideration is indeed wide in its connotation and it cannot remain the love and care of the primary caregiver, i.e., the mother in case of the infant or the child who is only a few years old. The definition of “best interest of the child ”is envisaged in Section 2(9) of the Juvenile Justice (Care & Protection) Act, 2015, as to mean “the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identify, social wellbeing and physical, emotional and intellectual development”.[7]

In Tippa Srihari v State of AP,[8]upheld by the Supreme Court on 21 January 2019,a Division Bench of the High Court of Andhra Pradesh held that the best interests and the welfare of the minor children are paramount and cannot be overridden:

The essence of the judgment in Nithya Anand Raghavan (10 supra) is that the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child, etc., cannot override the consideration of the best interest and the welfare of the child, and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child.[9]

Maintainability of Habeas Corpus for the Welfare of Children

In Tejaswini Gaud &Ors v ShekharJagdish Prasad Tewari&Ors,[10]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.

Conclusion

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. It can be cited as a possible method for the return of children to foreign jurisdictions, until a law on the subject is enacted and some adjudicatory dispute resolution process is implemented. This being the only possible acceptable method to contesting parties, can cut down litigation time of alternative protracted contested proceedings. A mirror order helps ultimately if granted by the High Court and approved by the Supreme Court on appeal. Since, there is presently no other solution to deal with abduction cases in India, this is the only workable formula, regardless of the fact that the High Court mirror order may find challenge in a time-consuming appeal to the Supreme Court. It is hoped that if such an evolving mirror order jurisprudence finds judicial approval in India, children removed to India will benefit by being reunited with both parents in their foreign abode. If such a practice is endorsed, it may also encourage foreign courts to permit children residing abroad to visit their extended families in India, if an assurance is found for their return by a mirror order jurisprudence. This may, perhaps, be the best stop-gap arrangement that can evolve through the mechanisms of the courts until a legislative solution is found to address inter-parental child removal. Until then, in India, matters will continue to be decided on Adhoc parameters, in the best interests and welfare of the children on a case-by-case basis.

*Senior Advocate is an alumni of SOAS, London, an IAFL Fellow and has co-authored ten books. Professional representations PAN India, he can be reached at www.anilmalhotra.co.in, www.anilmalhotra.co.in/blog and  anilmalhotra1960@gmail.com 

**Advocate, LL.M., Felix Scholar (2022-2023), School of Oriental and African Studies, University of London.

[1] Surinder Kaur  Sandhu Vs. Harbax Singh Sandu, 1984 (3) SCC 698

[2]JK v NS (n 30).

[3]Ashish v Anupama 2010 (14) SCC  274.

[4]Perry Kansagra v MadanKansagra 2019 SCC Online SC 2011.

[5]JK v NS(n 30).

[6]Sakhamurivs Sobhan Kodali 2019 SCC Online SC 3951.

[7]Ibid, para 34.

[8]Tippa Srihari v State of AP 2018 SCC Online Hyd 123.

[9]Ibid, para 19.

[10]Tejaswini Gaud & Ors v Shekhar Jagdish Prasad Tewari & Ors (2019) 7 SCC 42.