top of page

Rewriting Child Custody Laws

This Article is authored by Advocate Anil Malhotra.

The vexed question of cross border inter parental child removal not finding any legislative definition, remains a subject of varying judicial interpretation of the Supreme Court from time to time. India is not a signatory to the Hague Convention on Civil Aspects of International Child Abduction, 1980, acceded to by 96 other countries and thus wrongful removal and retention of a child domestically defies recognition and acceptance under codified Indian law, even though it is an offence internationally. A corpus of 30 million non-resident Indians living globally in 180 countries with multifarious relationships create an immense potential for unresolved child custody disputes upon a parent relocating to India in infringement of parental rights in foreign jurisdictions. The hapless child tossed over continents suffers in silence for no fault of his.

In a verdict of July 3, the Supreme Court in the case of NithyaAnandRaghavan(Raghavan) has enunciated newdirections in matters relating to custody in inter country parental child removal cases by departing from the principles of comity of courts and first strikejurisdiction which had earlier been laid down in the verdict of Surya Vadanan(AIR 2015 SC 2243). Whilst now holding that the jurisdiction of the writ of Habeas Corpus cannot be used and converted for executing the directions of a foreign court, the Supreme Court has ruled that the High Court may examine the return of a child to a foreign jurisdiction if it would be in the interests and welfare of the minor child. This would be done in exercise of parenspatriaejurisdiction of the High Court without being “fixated” with the foreign court order directing return of the child within a stipulated time, which would however be only a factor to be taken into consideration.

The Hindu Minority and Guardianship Act, 1956 (HMGA), declares that the natural guardian of a Hindu minor boy or an unmarried girl shall be the father, and after him, the mother, provided that the custody of a minor who has not completed 5 years of age, shall ordinarily be with the mother. The HMGA does not contain any independent, statutory or procedural mechanism for adjudicating custody rights or declaring Court appointed guardians. The reference to the word “Court” in the HMGA relegates a parent or any other person seeking appointment as a “guardian”to invoke the provisions of a 127 year old colonial law i.e. the Guardian and Wards Act, 1890 (GWA)and wherein the parent is constrained to seek exclusive temporary custody of his biological offspring during the pendency of such hearing.Sad, but true, child custody issues between parents are thus to be determined under the GWA,upon a natural parent wanting to be declared as a exclusive guardian to his own natural born child.

To be entitled to maintain a petition for Guardianship under GWA, the Guardian Judge will have jurisdiction only if the “minor ordinarily resides” within the territorial limits of the authority of the District or Family Court. In the celebrated judgment of RuchiMajoo (AIR 2011 SC 1952), the Supreme Court has been pleased to hold that in exercising powers under the GWA, the Guardian Judge is competent to entertain a petition only if the “minor ordinarily resides” in its jurisdiction as “a Court that has no jurisdiction to entertain a petition for custody cannot pass any order or issue any direction for the return of the child to the country from where he has been removed, no matter such removal is found to be in violation of an order issued by a Court in that country. The party aggrieved of such removal, may seek any other legal remedy open to it. But no redress to such a party will be permissible before the Court who finds that it has no jurisdiction to entertain the proceedings.”The phrase “minor ordinarily resides” in GWA has been construed by some High Courts in different decisions as not being identical to mean “residence at the time of the application” or “residence by compulsion at a place however long, cannot be treated as the place of ordinary residence”, the purpose being to avoid mischief that a minor may be stealthily removed to a distant place and forcibly kept there to gain jurisdiction. Thus, the “minor ordinarily resides” has been interpreted to mean a “place from where he had been removed or in other words, the place where the minor would have continued to remain but for his removal.” In such a situation, a Guardian Judge may thus decline to exercise jurisdiction if the minor child resident abroad, does not “ordinarily reside” within his territorial limits, but is simply present there on the date of the filing of the guardianship petition.

The writ of Habeas Corpus for seeking implementation of child rights where the parents are fighting for the custody of their offspring was settled by the Supreme Court in Gohar Begum (AIR 1960 SC 93) by following principles applicable to such writs in England to deliver custody of infants. In Nil RatanKundu (AIR 2009 Sup SC 732), following English and American Law, the Supreme Court held that “the basis for issuance of a writ of Habeas Corpus in a child custody case is not an illegal detention”, but “the primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a consideration of the equities involved in the welfare of the child, against which the legal rights of no one, including the parents, are allowed to militate”. Hence, invoking of the writ of Habeas Corpus by a non-resident parent for child custody on the strength of a foreign court custody order is the only efficacious, speedy and effective remedy, since the minor “ordinarily resides” abroad and there is a bar of jurisdiction under GWA for a guardianship petition before a Guardian Judge.

With due deference, the latest verdict in Raghavandoes not seem to reconcile with precedents quoted above and parallel existing statutory remedies on aspect related to existing child custody laws.In Surya Vadanan, the Supreme Court following Surinder Kaur Sandhu (AIR 1984 SC 1224) held that the best interest and welfare of the child should be determined by the jurisdiction having, “most intimate contact”and “closest concern”since a foreign court would be “better equipped and perhaps best suited to appreciate the social and cultural milieu in which the child has been brought up rather than a domestic court”. In Raghavan, though it has been held that “the principle of comity of Courts cannot be given primacy or more weightage for deciding the matter of custody or for return of the child to the native state”, the “closest concern”doctrine does not seem to have been clearly shelved in determining the welfare of the child.

The decision in Raghavanalso requires “the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person” and holds that “instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child” as “indubitably, merely because such an order is passed by the foreign court, the custody of the minor would not become unlawful per se”. Further, it has been held that “ordinarily, the custody of a “girl” child who is around seven years of age, must ideally be with her mother”. With due respect, judicial precedent holds that a writ of Habeas Corpus rests on securing the best interest and the welfare of the child and not on “unlawful custody”, which remedy is not available under the HMGA and GWA as the minor child does not “ordinarily reside” within the jurisdiction of the Guardian Judge where he may be present temporarily. Moreover, HMGA, as a gender free law, only stipulates that the custody of a “minor” under five years shall ordinarily be with the mother. This does not find concurrence in Raghavan.

The law declared by the Supreme Court shall be binding on all courts. In the absence of a clear codified law on cross border inter-parental child removal issues, the much needed clearer path of judicial precedent will continue to guide litigants and courts.


bottom of page