Uniform Law for Diaspora Kids



This Article is authored by Advocate Anil Malhotra.


The world is gradually becoming a global village. The corollary to affordable inter-country and inter-continental transfer is an amplified increase in relationships between individuals of different nationalities from different cultural backgrounds. India, as the largest democracy in the world projects a role model in various aspects of transnational laws in the international world arena. In a population of over a 1.2 billion Indians, 30 million are non-resident Indians who by migrating to different jurisdictions have generated a new crop of spousal and family disputes. These non-resident Indians constituting the largest diaspora in the world, live in about 180 nations abroad. India itself is spread over 3.28 million square kilometres over 29 States and 7 Union territories. These high numbers and volume statistics indicate the immense free cross border movement of global Indians. Such high density inter country migration has given a crop of inter-country family oriented disputes with new dimensions. Inter-parental cross border child removal is one such unresolved facet in this evolving family jurisprudence generating parallel conflicting legal proceedings in different jurisdictions without any resolution at any territorial end.


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. In ensuing disputes over custody and relocation in broken international homes, the hazards of international abduction between parents inter-se loom large over the chronic problems of maintaining access or contact internationally with the uphill struggle of also securing financial child support in foreign jurisdictions.


Inter-parental child removal is not defined in any Indian legislation and is not specified as an offence under any statutory law. The problem is compounded by the fact that India is not a signatory to the Hague Convention on Civil Aspects of International Child Abduction 1980 which is acceded to by 93 countries worldwide. Hence, inter-parental child custody conflicts are invariably decided by Indian Courts on the principle of the welfare of the child as a paramount consideration in the best interest of the child. The prerogative writ of Habeas Corpus as a expedient remedy is thus, invariably invoked being the most effective, emergent and efficacious remedy for a distressed parent whose child has been removed to India fro foreign homes. The foreign court custody order forms the basis of invoking this extra-ordinary constitutional remedy. A guardianship petition under the Guardian and Wards Act, 1890, preferred by the opposing spouse on Indian soil as a cross-fire remedy can often detract, delay and frustrate the decision making process. A protracted, time consuming and tedious custody petition results and the unfortunate removed child is fought over as a trophy to be won in a battle of egos and litigating parents. Sometimes, the love and affection of an isolated child is monopolised by one parent to such an extent that the tender mind of an alienated child is monopolised by one parent to such an extent that the tender mind of an alienated child gets permeated with ill will towards the other parent who for no fault has even access to any loved one.


Three erudite decisions by the Apex Court in Dr. V. Ravi Chandran (2010) 1 SCC 174, Shilpa Aggarwal (2010) 1 SCC 591 and Arathi Bandi, AIR 2014 SC 918 are a clear mandate that children removed from foreign jurisdictions need to be returned to the country of their habitual residence on the comity of Courts principle for determination of their best interests and welfare which is the paramount consideration. The watershed verdict by the Apex Court in Ruchi Majoo AIR 2011 SC 1952 clearly identifying the extra ordinary jurisdiction of the writ court to examine the matter independently, whilst limiting the jurisdiction of the Guardian Judge if the removed child is not “ordinarily resident” in his territorial limits, provides the much needed succent clarity for Courts to follow as a law of the land. The latest decision of the Apex Court in Roxann Sharma rendered on February 17, 2015 whilst holding that forum or Court shopping requires to be firmly dealt with, recognises that relocation is now a well known legal concept requiring the entitlement of custody rights of the left behind spouse to be jurally investigated. In this recent decision of the Indian Supreme Court, the concepts of Visitation, Guardianship and Custody have been well expounded in this latest verdict holding that “the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child’s welfare which is the focal point for consideration. Parliament rightly thinks that a custody of a child less than five years of age should ordinarily be with the Mother and this expectation can be deviated from only for strong reasons.”


Irretrievable Breakdown of Marriage

There are three specific areas in the realm of divorce law which are of main concern to non-resident Indians. One such area is the irretrievable breakdown of marriage. The irretrievable breakdown ground could be of immense help where either of the spouses is a non-resident Indian or a foreign national and the marriage has not worked out. This weapon in the armoury of divorce law, can work as a double-edged sword, facilitating the dumping of spouses from India married to NRIs. A marriage under the provisions of the SMA 1954 or the HMA 1955 cannot be dissolved by a decree of divorce on the ground of irretrievable breakdown of marriage. It is not a ground of dissolution of marriage either in Section 13 of the HMA 1955 or section 27 of the SMA 1954 respectively. Recent Supreme Court judgments have been seen addressing the same which are assuming relevance on account of changing social conditions especially in urban India and metropolitan cities.


The Supreme Court of India while exercising its inherent powers under Article 142 of the Constitution of India in several cases has held that, where marriage is dead and there is no chance of retrieval , it is advisable to end it. This was also the mandate of law laid down in Chanderkala Trivedi vs. Dr. S.P. Trivedi (1993) 4 SCC 232. Similarly, in Sneh Prabha vs. Ravinder Kumar AIR 1995 SC 2170, the Apex Court while exercising its powers under Article 142 of the Constitution of India tersely held that where in an appeal against an order confirming the decree of restitutor of conjugal rights, despite conciliation and much efforts by the Supreme court itself, it felt that the marriage of the parties had irretrievably broken down and there were no chances of the husband and wife living together, divorce should be granted.


With the ever increasing multifold population of Indians migrating and settling in foreign jurisdictions, the link with their home country does not severe. Family ties, connections of property and movable assets, and the invariable link with some Indian end for any reason whatsoever often lead to cross border litigation in human relationship matters. Situations abound when a non-resident Indian invokes the jurisdiction of the foreign court where he is resident and convinces the overseas court to pass favourable orders in such matters which are thereafter sought to be executed in the Indian jurisdiction through the courts of law in India. The challenge of inter-parental child removal needs to be resolved by making the initiative to become a signatory to the Hague Convention alongside an enactment of a uniform statutory law to suitably incorporate its provisions. The draft of the Indian Civil Aspects of International Child Abduction Bill 2007 meant to secure prompt return of children wrongfully retained or removed to India with a proposal to ensure that rights of custody and access under laws of contracting states are respected by providing for prompt removal of wrongfully removed children needs to be re-introduced for appropriate consideration. Legislative response is a comprehensive solution to the panacea of problems arising from this human issue. The proposal for including ‘irretrievable breakdown of marriage’ as a ground for divorce was first made almost three decades ago in the seventy - first report of the Law Commission of India which warrants a fresh look in this area as suggested by majority schools of legal thought.