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CONFLICT REGARDING CHILD’S CUSTODY UNDER PRIVATE INTERNATIONAL LAW

INTRODUCTION

Over the years, travelling and permanently residing in different countries have become accessible. According to data from the Ministry of External Affairs, around 32 million people reside outside of India.[1] Most people move out of their country in search of jobs, better living conditions, and cross-border relationships. World has become far more connected than it and travelling across borders, even across oceans has become much more economical and simpler. Various opportunities in different countries entice people to move abroad which also gives rise to multinational relationships.

In the short run, these relationships happen to be normal but in the long run, because of cultural differences and different mindsets, complications arise. Immigrating to a different country and starting a new family brings various family issues as well and gives rise to conflicts in the area of family law. These specific kinds of problems require specific solutions and more so if children and their custody is concerned.

Overseas child custody dispute is a complicated issue because of the interpretation and mix of family laws of various countries. Every country has its law controlling the child custody issue but there is also a common agreement ratified by most of the countries i.e., the Hague Convention, 1980.[2] Although India has not yet signed the said convention there is an alternative remedy present in the “Hindu Minority and Guardianship Act, of 1956”.[3]

OVERSEAS CHILD CUSTODY DISPUTE AND LEGAL PROVISIONS

The term ‘Child Custody’ in the legal sense means the care and control of children either by one parent or by both. The parent receiving custody of the children has the right to raise the child, provide for the child and take important decisions regarding the education, health, and necessities required by the child.

Now, in a specific country, a decision regarding the custody of the child can be undertaken by following the laws of that country but in case one parent is from country ‘X’ and another is from the country ‘Y’ and if they both reside in the country ‘Z’ or ‘X’ or ‘Y’ and in case of separation of parents, the questions come as to which country’s laws will be interpreted in the given scenario.

To provide remedies for such issues, a common convention known as The Hague Convention of 1980 was brought in and it has been ratified by 103 countries as of November 2022.[4] Each country that has ratified the convention has to follow the rules and regulations laid down by the convention in case of custody battles. Sometimes, one parent may wrongfully remove the child from his/her nation of residence to interfere with other parents’ right to visitation or to avoid contact with them. This is known as Child Removal and “Article 3 of the Hague Convention of 1980 on the Civil Aspects of International Child Abduction” deals with it. The says that

The removal or the retention of a child is to be considered wrongful where:

  • It is in breach of rights of custody attributed to a person, an institution, or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
  • At the time of removal or retention, those rights were exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by the reason of a judicial or administrative decision, or because of an agreement having legal effect under the law of that State.”[5]

Before hearing a case on child custody, the court needs to decide the child custody jurisdiction, and the same is decided by the Uniform Child Jurisdiction and Enforcement Act (UCCJEA) which has been ratified by several states.[6] This act provides jurisdiction to the home country of the child and solves the child custody issues.

INDIAN VIEWPOINT

India is not a part of the Hague Convention of 1980 and has its laws to deal with such issues. Although no specific act or provision has been brought in to govern the issues but remedies under “Writ of Habeas Corpus under Article 226[7] and “Article 32[8] as well as provisions under the “Hindu Minority and Guardianship Act, of 1956[9]can be sought.[10]

Various landmark judgments to determine the

  • In the case of Prateek Gupta v. Shilpi Gupta & Ors,[11] the couple had two children and divorced due to marital problems, the father after separation went back to India and the mother along with the children stayed in the US. The father, after divorce, continued to visit his children on occasion but on one such visit, he secretly brought one of their sons along with him to India without the knowledge of their mother. Infuriated by this, the mother approached the US court and the court ordered to give the mother back the custody of the child. Aggrieved by this order, the father filed a “writ of Habeas Corpus”[12] for the custody of the child but the Delhi High Court ordered the father to return the child to the mother. But later, Supreme Court set aside the judgment of the High Court and granted the father the custody of the child till he attains the age of majority. [13]
  • Again in Smt Surindar Kaur Sandhu v. Harbax Singh Sindhu[14], the issue regarding the Jurisdiction of the child custody dispute was brought up since the parents were Indian citizens and the child was a British citizen. The court overseeing the child custody case interpreted “Section 6 of The Hindu Minority and Guardianship Act, 1956” [15]which considers the father as the natural guardian of the minor child but this provision cannot override what is best for the child. The court also stated that the current theory of conflict of laws also acknowledges this and favors the authority of the state which has a closet connection in the matter and decided that Indian Courts have no jurisdiction over the matter.

In most often inter-parental custody cases, the court has given the interests and the child the utmost preference. Instead of blindly following the international courts’ order in these cases, the Indian courts have shown amazing inventiveness, balancing the Indian legal framework before reaching a fair conclusion[16].

ANALYSIS

India is yet to ratify any International Law in child custody cases but with no proper legislation in place to solve the disputes, this is the best course of action for India. The number of cross-border relationships has increased over the years and as a result, conflicts in marriages have also risen. Although, in cases like this, the courts from time to time have relied upon the principle ‘Child comes first’ but there are no proper guidelines as to what makes up for the child’s best interests[17].

Some of the most challenging disputes in the global arena are the inter-parental custody battles. The stakes in cases like this are fairly high because the issues are personal and sensitive. Sometimes, people resort to the most extreme measures to get what they need. Further, the judicial measures in India are not well-equipped to deal with custody issues. A court case cannot determine the true dynamics of the family and therefore, cases like this must be dealt with taking into consideration the cultural, moral, and psychological norms surrounding the family.[18]

CONCLUSION: THE NEXT STEP

We can conclude that the most crucial component in cases like this is parents seeking legal assistance at appropriate instances. The development of law is still in its earliest stage. Therefore, a few suggestions which our country can implement are as follows:-

  • Understanding the welfare of the child- All the authorities involved must take decisions regarding the welfare of the child in its mind. Parents, before, engaging in brutal custody battles must first seek counselling on time to repair the broken relationship. Realizing that you need help and seeking solutions on time is the best possible way to move forward.
  • India must ratify the Hague Convention of 1980- India is losing out significantly by not ratifying the said convention. There must be a robust system of law in India to deal with child custody cases in foreign countries. This might be assisted by the said convention or by forging agreements with other nations. The convention can also prevent issues from occurring in foreign courts which are equally qualified to deal with these matters.
  • Proper laws are the need of the hour- Over the years, it is clear that India does not follow a consistent pattern of decisions in resolving custody issues. Even though the judiciary is handling these cases remarkably but these laws are still not completely developed, therefore, strong legislation is required.

Author(s) Name: Mahek Choudhury (South Calcutta Law College, Kolkata)

 Reference(s):

[1] Anusha Das, ‘Indian Diaspora: How many Indians live abroad?’ (BQ Prime, updated 17 May 2023)

[2] The Hague Convention on Civil Aspects of International Child Abduction [1983], Article 3

[3]Act 32 of 1956

[4] Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (HCCH) <https://www.hcch.net/en/instruments/conventions/status-table/?cid=24> accessed 17 May 2023

[5] Hague Convention of 1980 on the Civil Aspects of International Child Abduction, Article 3

[6] The Uniform Child-Custody Jurisdiction and Enforcement Act, 1997

[7] The Constitution of India, 1950

[8] The Constitution of India, 1950

[9] Act 32 of 1956

[10] ibid, 6

[11] [2017] SC 1421

[12] The Constitution of India, 1950

[13] Ibid, 6

[14][1984] HLR 780 SC

[15] Act 32 of 1956

[16]Aditi, ‘Private International Law and Inter-Parental Custody Disputes in India’ (2014) Academike <https://www.lawctopus.com/academike/private-international-law-inter-parental-custody-disputes-india/> accessed on 17 May 2023

[17]Adrian Lakrichi & Igi Nderi, ‘International Child Abduction- conflict of parents and laws detrimental to children(1 June 2021) <https://www.humanium.org/en/international-child-abduction-conflict-of-parents-and-laws-detrimental-to-children/> accessed 17 May 2023

[18] Linda Silberman Karin Wolfe, ‘The Importance of Private International Law for Family Issues in an Era of Globalization: Two Case Studies-International Child Abduction and SameSex Unions’ [2003] Hofstra Law Review, Vol 32 Issue 1 <https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2562&context=hlr> accessed on 17 May 2023