This Article is authored by Advocate Anil Malhotra.
Parental wrongful removal and retention of children across countries defies recognition under codified Indian law, though an offence internationally. Vexed question of inter-country parental child removal not finding Indian legislative definition, remains a subject of varying judicial interpretation of Indian Supreme Court. India is not a signatory to Hague Convention on Child Abduction, acceded to by 100 countries. A corpus of 30 million Indians living in 200 countries with multifarious relationships, creates unresolved child custody disputes, upon one parent relocating to India with children, by infringing other parent’s rights in foreign jurisdictions. In this legal dilemma needing urgent resolution, hapless separated children tossed over continents suffer in silence.
During pendency of custody issues in law courts, if children are abducted by parents from homes of habitual permanent residence to and from India, local law enforcement organizations can do little to locate covertly removed children. Thorny legal concerns and convoluted human complications confront parents of children in unchartered jurisprudence of global inter-spouse child removal. Indian statutes have no codified family laws to pass orders to coerce parents into returning children to homes in foreign jurisdictions. Aggrieved parents with foreign court orders directing return of offspring, find no place in Indian legal systems for statutory remedies. A legal deadlock.
Present remedies under Constitution of India, require invoking Habeas Corpus extraordinary writ jurisdiction of High Courts or Supreme Court. Bitter disputed custody battles requiring conventional evidence proof, relegates parties to remedies under Guardians and Wards Act, 1890. Natural parents then seek resolution of rights of custody, access, visitation and guardianship, as testimony of superior parental rights. Impasse soars. Inadvertently, converse realism has dawned. Children having habitual permanent residence in India, are surreptitiously removed to alien jurisdictions, and cannot legally be directed to return to India. Child removal is now a two way street. Flux brings relationship of minor offsprings with doting parents to rock bottom ebb of family bonding, filial security and parental confidence. Families get split across nations and concurrent analogous child custody litigations are commenced under separate legal systems of different nations. Arguments in law rule the roost. Children parked in India are exposed to burdensome legal dealings, sans timely effective solutions. Technical Court procedures, protracted delay, time constraints, unending legal processes with cumbersome mounting legal costs does not help. Interest is espoused if international law principles can aid a remedy.
In this backdrop, mirror orders safeguarding rights of children, in movement of transnational families, was a unique path breaking precedent set by Supreme Court recently. Mirror orders are protective measures evolved by Courts in different countries by giving respect to each others orders for benefit of child rights and ensure return of children to country of habitual residence. If such orders are accepted and agreed to be implemented by a foreign Court where children are temporarily relocated, it is said to be mirrored. Primary jurisdiction rests in hands of Courts in countries where children habitually and permanently reside. International Family Law, imperatives require only one Court to take decisions to avoid conflicting judgments on issue of custody rights of same children in different jurisdictions. This principle of public policy is called comity of Courts. Objective of mirror orders protects minor children in movement in different countries, and ensures that litigating parents are equally bound in both nations. Mirror orders safeguards interests of parents temporarily loosing custody for benefits of another parent, wishing visitation in foreign countries. India cannot be criticized as a haven for parking removed children.
Mirror order jurisprudence, remain to be followed by Indian Courts, when children are in India or taken out temporarily. If mandates of Indian Courts are made part of foreign Court orders, risks of child removal are minimized. Simultaneously, in reciprocity, Indian Courts must adopt principle of mirror orders, whilst respecting foreign Court orders concerning custodial rights, by returning children to foreign jurisdictions, when such foreign children are temporarily in India. Innovative judicial mechanisms can work as a dual carriageway. I wish to see India as a part of Hague network. Since India is not a signatory to the Hague Convention, this formula is the only workable method for meaningful protection of child rights in actual practice, till Parliament enacts a domestic law. Till India accedes to Hague Convention and statutory Indian laws are made to recognize inter-parental child removal as an offence, this piecemeal judicial mechanism can work as practice directions.