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Comity, custody, and child welfare PDF Print E-mail
(1 Vote)
Written by Aarthi Rajan   

Once a child has been abducted to India, remedies are very few.”

This is an observation made by the Bureau of Consular Affairs, Department of State, United States of America, in the context of the legal position in India vis-à-vis international parental child abduction.

In a recent judgment of the Supreme Court of India delivered on May 13, 2011 in the case of Ruchi Majoo v. Sanjeev Majoo, 2011 6 SCALE 290, a two-judge bench consisting of Justices V.S. Sirpurkar and T.S. Thakur, held that in cases concerning the custody of a child removed by its parent from a foreign country to India, Indian courts can retain jurisdiction to consider and determine custody, notwithstanding that such removal of the child (from where the parties had set up the matrimonial home) may be in contravention of the orders of the foreign court. Thus, jurisdiction of Indian courts is not ousted in cross-border child custody cases that involve parties who are foreign citizens or where there are prior decrees by a foreign court on the issue of custody. The Court further held that since the interests and welfare of the child were paramount, custody orders issued by foreign courts are not to be taken as conclusive and binding, but only as one of the factors for consideration that would go into the making of a final decision by an Indian court.

It has been widely argued that the Supreme Court’s decision in Majoo gave credence to the observation made by the U.S. Government and renders India as a ‘safe haven’ for international parental child abduction. Recent statistics for the past decade made available by the governments of the United Kingdom and the United States of America, both being countries that have a large Non-Resident Indian (“NRI”) population, indicate a sharp rise in parental child abduction to India in defiance of the resident country’s courts’ orders.

There is no denying that a parent’s act of unilaterally uprooting a child from her habitual residence and thereby preventing her access to the other parent can prove to be a traumatic experience for the child, with potentially deleterious effects on her psychological and sociological well-being. While the doctrine of “welfare of the child” is long-settled in Indian jurisprudence and has been actively applied and evolved in various cases by the Indian courts, there is no domestic legislative framework dealing specifically with parental child abduction. In India, parental child abduction, that is, the removal of a child from the matrimonial home by one of its parents without the consent of the other parent and without any custody order made by an Indian court, is not recognised as a crime. By extension, international parental child abduction or the removal of a child by its parent to or outside of India, is also not a statutorily defined crime within India.

Further, India’s non-ratification of the U.N. Convention on the Civil Aspects of International Child Abduction (October 25, 1980) (“the Convention”) despite the said Convention having come into effect in 1983 and eighty other countries having ratified the same, is widely regarded as enabling the Indian courts to usurp power to determine custody in cross-border cases, despite being forum non conveniens. Non-ratification is frequently cited as the main cause for the international perception of India as lacking the laws for, and judicial enforcement of, the child’s best interests in cross-border custody cases.

Absent any domestic laws, together with the non-ratification of the Convention, Indian courts have dealt with cases of parental child abduction as civil custodial disputes. Typically, such cases have been instituted in the courts either by way of writ petitions in the nature of habeas corpus under Article 32 (before the Supreme Court) or Article 226 (before a high court) of the Constitution, or, as applications for custody under the Guardians and Wards Act, 1890 (“the GAWA”). Once seized of the matter, the court invokes the doctrine of parens patriae (Latin for ‘parent in nation’) so as to employ the principle of “welfare of the child” which is equivalent to the concept of “best interests of the child” endorsed in most common law jurisdictions and in the Convention. However, given the complete lack of a legislative framework in the context of parental child abduction, the courts exercise very wide discretion in applying the ‘welfare’ doctrine to the particular fact situations. The Supreme Court’s judgment in the Majoo case amply demonstrates this point.

It must be stated at the outset that the Majoo case raises several questions ranging from the jurisprudence on recognition of foreign decrees in India, issues of custody involving the children of foreign citizens, to the distinction between the court’s powers under its writ jurisdiction and under specific legislations concerning the custody and guardianship of children. For the purpose of this article, I focus on how the court in the Majoo case interpreted the doctrine of “welfare of the child” in relation to legal concepts such as “comity of courts”, in its endeavour to safeguard the best interests of the child. The Supreme Court’s present approach in cross-border child custody cases is necessarily ‘paternalistic’ (I use this term in its legal as well as ordinary meanings), in that, given the lack of statutory laws and rules, the Court is entrusted with deciding what is best for the child and consequently, exercises very wide judicial discretion. This paternalistic approach has been subject to criticism; the Majoo case has been critiqued as the latest instance of judicial over-reach, whereby the courts have undercut judicial comity and usurped jurisdiction over foreign citizens. Such concerns mark out the issue of child custody in India as fraught with the double dangers of a lack of a cohesive legal order and resultant judicial uncertainty.

There can be little debate about the fact that the best interests of the child warrants, and would be best served, if a legislative framework dealing specifically with parental child abduction is instituted in this country on a priority basis. This would also be in keeping with an increasing worldwide trend to “formalise” the rights of the child and its parents by replacing judicial discretion (to some extent) with express legislative formulae. Nevertheless, even with a clear legislative framework in place, judicial interpretation of such laws is inevitable and therefore, judicial discretion remains imperative. This is because a determination of the child’s best interests in custody arrangements is necessarily contextual. Archana Parashar, a noted academic in this area of law, makes a compelling argument that an open-ended and contextual judicial interpretation of the ‘welfare’ doctrine is both a reality and a necessity, such that rather than attempting to curtail judicial discretion, justice would be better served if the judges are allowed and equipped to access more specialised knowledge (by way, for example, of seeking child specialists’ expert opinion or literature in this area) instead of relying only on than their own personal views, when arriving at their decisions. (See Parashar, A., 2008, “Paternalistic Law, Autonomous Child and the Responsible Judges”, Redefining Family Law in India. New Delhi: Routledge India)

It is in this context that the following brief analysis of the Majoo case examines whether and how far the Court’s exercise of its wide discretion is effective in safeguarding the child’s interests in the absence of any formal laws and rights.

The Majoo case concerned an NRI couple that were settled in the U.S.A. The appellant-wife left the U.S.A. to return to India with their son. Meanwhile, her estranged husband filed a suit in an American court claiming that his wife had abducted the child. The American court issued a ‘red corner notice’ against the wife and directed her to return with the child to the U.S.A. The appellant-wife in India moved the Guardian Court at Delhi, by way of an application under the GAWA, seeking the right of custody of her son. The court allowed her petition and granted her custody. The respondent-husband appealed this custody order before the Delhi High Court. The Delhi High Court allowed the appeal and set aside the lower court’s custody order on the basis that the Delhi court had no jurisdiction in the matter since the parents and the child were American citizens and the child was not ‘ordinarily resident’ in India, as is requisite under GAWA, for an Indian court to grant a custody order. The High Court further held that since an American court had already issued an order in the matter, all issues relating to custody needed to be agitated before the appropriate courts in the U.S.A. On appeal, the Supreme Court set aside the judgment of the Delhi High Court, holding inter alia that the Guardian Court in Delhi had the jurisdiction and competence to determine custody in this matter. It further ordered interim custody of the child with the appellant-mother during the pendency of the proceedings before the Delhi Guardian Court, and also ordered visitation rights in favour of the respondent-father.

In arriving at its decision, the Supreme Court culled out three questions for determination:

1. Whether the high court was justified in dismissing the petition for custody of the minor on the ground that the court at Delhi had no jurisdiction to entertain the same;

2. Whether the high court was right in declining the exercise of jurisdiction on the principle of comity of courts; and

3. Whether the order granting interim custody to the mother of the minor calls for any modification in terms of grant of visitation rights to the father pending disposal of the petition by the trial court.

The first question: jurisdiction

In affirming the jurisdiction of the Delhi Court to entertain the petition for the guardianship or custody of the minor child, the Court construed the term ‘ordinarily resides’ as provided under Section 9 of the GAWA. Section 9(1) states:

9. Court having jurisdiction to entertain application – (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having Jurisdiction in the place where the minor ordinarily resides.”

(emphasis supplied)

The Court held that that in law as well as in the instant facts, the question as to whether one is ordinarily resident in a place depends not only on the simple fact of residence but also on the intention to make that place one’s ordinary abode or place of habitual residence. The court noted that the child was studying and residing in Delhi for the past three years and that the mother intended to pursue her profession in Delhi. E-mails produced by her as evidence indicated that the father of the child was a party to this arrangement. On these facts, the Court concluded that the child was ‘ordinarily resident’ in Delhi such that the Guardian judge in Delhi had the jurisdiction and competence to decide the custody rights. In respect of the law, the Court placed reliance on various decisions to support its purposive interpretation of the rule under Section 9 of the GAWA. The Court’s interpretation of ‘ordinary residence’ by delving into the factual background merits a more detailed analysis in terms of the principles of statutory interpretation, which this article will not undertake.

What is clear though, in my opinion, is that even when confronted with the ‘threshold’ of preliminary legal argument of jurisdiction as statutorily provided for under the GAWA, the Court, by conducting a detailed enquiry and taking the entire factual context into account, was working within the framework of the ‘welfare doctrine’.

The second question: comity of courts

In answering the second question, the Court explicitly invoked the doctrine of “welfare of the child” to hold that the jurisdiction of an Indian court cannot be declined solely on the basis of the principle of “comity of courts”. The Court, speaking through Justice T.S. Thakur, observed:

“Recognition of decrees and orders passed by foreign courts remains an eternal dilemma in as much as whenever called upon to do so, Courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 of the Code of Criminal Procedure, 1908 as amended by the Amendment Act of 1999 and 2002. The duty of a Court exercising its parens patriae jurisdiction as in cases involving custody of minor children is all the more onerous. Welfare of the minor in such cases being the paramount consideration; the court has to approach the issue regarding the validity and enforcement of a foreign decree or order carefully. Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity and not abject surrender is the mantra in such cases. That does not, however, mean that the order passed by a foreign court is not even a factor to be kept in view. But it is one thing to consider the foreign judgment to be conclusive and another to treat it as a factor or consideration that would go into the making of a final decision.”

(emphasis supplied)

The Court’s decision in Majoo clearly evinces a breakaway from the stricter adherence to jurisdiction as laid down by the Supreme Court in its earlier decision in Srimati Surinder Kaur Sandhu v. Harbax Singh Sandhu and Another, (1984) 3 SCC 698. The point to note is that in both these cases the legal issue of jurisdiction (in relation to the principle of judicial comity) is contexualised by invoking the ‘welfare doctrine’, albeit with contrasting results. The relevant passage in the Sandhu case is extracted below wherein the Court, speaking through Chief Justice Y.V. Chandrachud (as he then was), held as follows:

“The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International Shoe Company v State of Washington which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case.) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy.

(emphasis supplied)

These divergent views of the Court, of which Majoo presently constitutes the authority, illustrate the uncertainty inherent in the Court’s use of the ‘welfare doctrine’. Here is where the Court’s paternalistic approach must be reigned in, firstly, by urging a more thorough judicial understanding of the ‘welfare doctrine’, and secondly, legislating clear parameters for the judicial use of the ‘welfare doctrine’. Although the ‘welfare doctrine’ is invoked by the Court in Majoo numerous times, in particular, to establish jurisdiction and to subordinate the principle of judicial comity, there is very little analysis of the ‘welfare doctrine’ itself and in relation to these legal concepts in the context of cross-border custody disputes.

Surely, the best interests of the child would be truly effected and served if the issue of custody is determined by the court of the jurisdiction in which the family, including the child, is habitually resident and rooted in, unless there are compelling reasons otherwise. The Convention recognises the importance of the principle of ‘comity of courts’ by way of legal reciprocity, under which the rights of custody granted under the law of one contracting state are respected and upheld in the other contracting states. It seeks to preserve the status quo in terms of the child-custody arrangement that existed immediately prior to an alleged wrongful removal or retention, thereby deterring a parent from crossing international boundaries to ‘forum-shop’ in an attempt to gain custody of the child. It nevertheless accords priority to the “best interests and welfare” of the child, which remains the overriding factor in the determination of custody arrangements and informs both parents’ rights of custody of or access to, or both, the child. This is evident in the Convention itself which allows an exception to the rule of safe return of the child where it can be demonstrated to the relevant court or authority that if returned, the child would be exposed to “physical or psychological harm, or otherwise place[d]…in an intolerable situation”. Thus, while judicial discretion is fundamentally embedded in the Convention, the well-defined parameters within which the courts may exercise their judicial discretion allow for consistency in practice, greater legal certainty, and a more efficient and systematised global network that effects parental and children’s rights. In the Indian context, domestic legislation can be modelled on the lines of the Convention, pending India’s ratification. The need for a domestic legal framework, in my opinion, continues to be of utmost priority.

The third question: visitation rights of the father

From the perspective of the Court’s usage of the welfare doctrine, the Majoo case is of particular interest, in that the Court, of its own accord, granted visitation rights to the father and laid down the basic modalities for the same. What is interesting is that the judges went on record to state that they engaged in “an interactive session” with the minor upon which they “concluded that the minor has been thoroughly antagonized against the respondent father”. They record their opinion in this regard, as extracted hereunder:

“For a boy so young in years, these and other expressions suggesting a deep rooted dislike for the father could arise only because of a constant hammering of negative feeling in him against his father. This approach and attitude on the part of the appellant or her parents can hardly be appreciated…

“It is important that the minor has his father’s care and guidance, at this formative and impressionable stage of his life. Nor can the role of the father in his upbringing and grooming to face the realities of life be undermined. It is in that view important for the child’s healthy growth that we grant to the father visitation rights; that will enable the two to stay in touch and share moments of joy, learning and happiness with each other.”

With due respect, it is my opinion that in striving to pursue the best interests of the child, the judges have formed their own subjective views based on their meeting with the child (and on an aside, there is no mention of the presence, if at all, of a child specialist during this meeting) and employing common-sense notions of what constitutes good parenting. Thus, while they note the importance of the father’s presence in the child’s life, and rightly so, any parental rights that the father may have in respect of his son, or in relation to the mother, or both, merit no mention.

It is in this respect that the Court’s approach in determining the best interests of the child, in the Majoo case as well as in general, attracts criticism for judicial uncertainty for the fact that it has resulted in a chequered line of decisions, each of which is highly contextual and informed largely by the judges’ own personal, subjective views on the norms for marriage, family, parental responsibilities and the like (See, for instance, Parashar (Supra) for her analyses of cases in the high courts, that have led to what she terms as a “justified feminist distrust” of the courts in custody disputes).

I conclude by emphasising that the ‘welfare doctrine’ can and should be employed by the courts in a way that enables a clear recognition of the rights of the child, as well as its parents. This is best effected by a instituting a framework of laws. In the interim, the judges, in their unique position to powerfully impact as also best serve the needs of a child and its family, must lay down clear, guiding principles for the application of the welfare doctrine, along with applying it to specific circumstances.

There is growing advocacy, notably by Children’s Rights Initiative for Shared Parenting, Bangalore, for India to accede to the Convention. I concur, and reiterate the more urgent need for evolving a domestic framework of laws. In keeping with the rise of children’s rights movements as, for example, embodied in the U.N. Convention on the Rights of the Child, judicial discretion in cases involving child custody, needs to be informed and trammelled by legislated formulation of rights for the child, as also for its individual and respective parents.


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