Child abduction by warring parents is rampant in today’s global village. And, when it comes to a custody battle for the children, both parties hit out with a vengeance in the name of a child’s paramount interest.
A parent disobeys a foreign court’s order prohibiting a child from being taken out of the country and flees to India in the hope that the motherland’s courts will cater to the mother’s instinct of love and affection and prevail over the niceties of law. Figures show it works.
Indian Supreme Court decisions show, by and large, that the mother abductor/ kidnapper has got away with it. Of course, in each case, different reasons have been cited by the court. Exceptions to this rule prevailed for a short span when in the historic decision in the Ravi Chandra case [2010 SC 741], the Supreme Court, for the first time, restored the custody to the father. Applying the principles of the Comity of Courts, it held that this sudden and unauthorised removal of children from one country to another was taking place far too frequently and it was the “duty of all courts, in all countries” to do all they could to ensure that the wrongdoer did not gain an advantage by wrongdoing. These principles resulted in the father getting back the child who had been kidnapped by his estranged wife.
This trend continued for over six years till the Surya Vandan case [2015  SCC 450] where the Supreme Court took the stand that no litigant could be permitted to defy or decline adherence to even an interim or interlocutory orders of the court on the premise that the mother thinks that the order is incorrect and not to her liking. The Supreme Court reinforced that any violation of this by a warring parent would have wide ramifications and would have deleterious effect on the authority of the court to implement its own orders.
Prior to this, the Supreme Court, right from the ’80s till the first decade of this millennium, gave orders based on the feeling that mothers had a superior right over the custody of minors even though the facts were otherwise. It interpreted the law in favour of the mother and did not allow the child to separate from her on the principle that the welfare of the child was paramount and the child needed the mother more.
In case after case, the Supreme Court has negated custody orders issued by foreign courts favouring fathers by holding that a child’s interest is best served with the mother in India even if she is unemployed, the surroundings are alien to the child who has been kidnapped and brought to India. So in Dhanwan Joshi 1998 SCC 112, Elizabeth Dinshaw [1987  SCC 42] and the Sarita Sharma 2000  SCC 14, even though the warring spouses had set up their ‘matrimonial home overseas’, both were domiciled and had a permanent home there, the Supreme Court ruled in favour of the mother who had fled from overseas even when the child whose custody was being fought over was not a citizen of India. In each case, the Supreme Court found the that the interest of the child would be better served with the mother and glossed over her breaching of a foreign court’s order
In Surender Kaur [1984 3 SCC 698], when the father removed the British- born child from England where he was a driver to India, the mother came with a court order for return of the child to the UK. The Punjab & Haryana High Court rejected her prayer as it felt she had no relatives in the UK and the child would live in dismal conditions in England whereas the paternal grandparents were rich in India and would be able to provide a conducive environment for the child. But this was not accepted by the Supreme Court which turned down the high court’s judgment and restored custody to the mother allowing her to take the child back to England.
Inter-country kidnapping of children by warring spouses originated in the USA and in Europe where it has become a means of causing immense pain to the other spouse.
At the urging of the United Nations which could not stand this emotional blackmail and distress, many countries agreed to enact the Hague Convention 1980 whereby a child younger than 16 years who has been wrongfully removed from the jurisdiction of the state has to be restored to the parent in that country forthwith without exception.
For obvious reasons, India didn’t sign the convention. Glaring disparities and basic inequalities in the two genders cannot be glossed over. Even now, Indian parents are mostly unable to take mature decisions on a child’s paramount interest.
As India is not privy to the convention, Indian courts, thus, have the jurisdiction to consider such matters threadbare afresh keeping the interest of the child paramount. Merely became there is an order of a foreign court will not ipso facto be a ground for Indian courts to return the kidnapped ward.
So, even if the children have lived their formative years overseas and are citizens of the USA, which has better education facilities and a cleaner environment, their custody will remain with the abductor mother who had fled with them. For, the children are young and need their mother’s care. Also, since the father enjoys drinking and his mother is old, the children will have no company are the reasons for depriving the father of custody though all are US citizens.
Post the Ravi Chandran case, Indian courts realized that child abduction had degenerated into ego clashes. And, thus, it ruled that foreign court orders would be respected. A balance was reached with the mother-kidnapper returning the child to the father who agreed to pay the expenses of the mother to fight it out in US courts. The child was not to be used as a pawn.
The balance tilted in favour of the mother in the July 2011 ruling by the Supreme Court in the Nitya Raghwan case (2017  SCC 454), where the judges deprecated the practice of restoring the child to a parent “who approaches the court first”. The ‘first strike’ principle cannot whittle the powers of the court and its duty to adjudicate. Very often on the ‘first strike’ principle, the child’s custody order was ex parte. Should Indian courts decide only on that premise and order the return of the child who is in de facto custody of a parent in India without examining where the child’s ideal interest lies?
The Supreme Court has now held that the ‘first strike’ by a rich parent coming to the court first and obtaining an order in his favour which is normally ex parte [without hearing the other side] cannot be the mantra on which a child’s welfare should be determined and the child’s paramount interest ignored. The Supreme Court has turned full circle. It is back in the Dhavanti Joshi era of adjudicating the child’s custody in inter-country abduction cases on the basis of the law in the country [India] as India is not a signatory to Hague Convention.
Thus, the principle of the comity of courts cannot be given primacy in non-convention countries [like India] for deciding custody cases or for return of the child to the native state. Thus, in India, only the Guardian and Ward’s Act 1890, can adjudicate on a child’s custody. Thus, the sole principle of where does the paramount interest of the child lie will only weigh in the minds of the court in deciding this. A pre-existing order of a foreign court for return of the child is no longer valid consideration and to this extent, the Surya Vandans case stands overruled. With this, all the earlier Supreme Court’s decision on foreign courts judgments/ orders on the Principles of Comity of Courts also stand diluted to a large extent. The Supreme Court has come back to the centuries-old principles that a child is always under the custody of the court and it exercises its parent’s patraise jurisdiction.
Thus, a parent, specially a mother, who has abducted a child in violation of a foreign court order and is ordered to produce the child on a particular date can breathe easier now. For, it will not be mandatory for the parent to obey as the Supreme Court has held that custody with the abductor-parent is not unlawful as she is the mother and not an alien person.
The matter did not end there. The other directions by the Supreme Court that superior courts should not exercise extraordinary powers under Article 226 of the Constitution in such cases, not ordinarily issue writ of habeas corpus for production of the child, as in such cases the custody is with the natural parent, and the high court should not be made an executing court for compliance of a foreign court’s order will impair justice and cause much heartburn.
This direction will have wide implications and ramifications. As high courts will be denuded of their powers to adjudicate in custody issues, these will be relegated to family courts/guardianship of courts to decide. As these have long waiting periods, the minor children well may have grown up.
Since the Supreme Court has held that the paramount interest of the child is the only pertinent issue on which to adjudicate, such cases have to take precedence over national custody cases, be fast tracked by high courts and end quickly. For, otherwise the paramount interest of the child would only be mere talk.
(The writer is a practicing lawyer based in Delhi.)