Magnitude of the Problem:
India is home to about 1.3 billion Indians over a territory of 3.28 million square kilometers. As per Government of India statistics, an estimate of over 3.4 million non-resident Indians have registered as Overseas Citizen of India (OCIs) to acquire lifelong visa free entry to India. Their actual numbers may be more than 32 million. These global Indians have inhabited, settled, and thrived in almost 208 countries across the globe. Undoubtedly, these international Indians are a unique nationality by themselves. They propel a dire need for a global law to govern their conflicts. Link and retention of their ties with their extended families in India and abroad has found expression in issues relating to nationality, citizenship, marriage, divorce, spousal maintenance, alimony, inter-parental child removal, custody, and guardianship of children. Besides this, it is in division of matrimonial property, inter-country adoptions, succession, and inheritance of Indian property and last but not the least in surrogacy arrangements, link prevails. Domestic violence in abusive marriages of international couples has created a new jurisprudence.
Foreign Courts and overseas law practitioners are at sea attempting to resolve these problems for lack of any updated or amended Indian laws or reasoned interpretation of law on these subjects. Conflict of laws is galore. Parallel and simultaneous adjudications in different jurisdictions create anomalous situations which compound legal dilemmas relating to human relationships. Applicability of foreign laws, validity of judgments pronounced overseas and verdicts of Indian Courts which need exposition are consequential issues requiring interpretation and expert opinion. Indian Courts perform a herculean task in carving individual solutions in complex litigations under outdated Indian legislations. In the face of such a situation, effective remedial solutions can only be found through India’s accession to International Conventions as the prime source to dispute resolution in private international law matters.
A. The Removed Child and The Law in India:
William Wordsworth in his Poem, “My Heart Leaps Up”, also known as Rainbow, in 1802 nostalgically expressed “the Child is Father of the Man.” We are still alive to this jarring thought. Lord Alfred Tennyson, in Memoriam talks of “an infant crying in the night, an infant crying for the light, and with no language but a cry.” Is poetry law. Child custody and the vexed question of cross border inter parental child removal not finding any legislative definition, they remain 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 208 other countries. Thus, wrongful removal and retention of a child by a parent defies recognition and acceptance under codified Indian law, even though it is an offence internationally. A corpus of 32 million NRIs living globally in 208 countries with multifarious relationships, creates an immense potential for unresolved child custody disputes upon a parent relocating to India by violating the other parent’s rights in a foreign jurisdiction. The hapless child tossed over continents suffers in silence for no fault of his.
Codified law in India:
As the principal personal law applicable to persons professing the Hindu religion, 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 130-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 GWA, upon a natural parent wanting to be declared as an exclusive guardian to his own natural born child.
India is a signatory to the United Nations Convention on the Right of the Child (UNCRC). Consequently, the definition of the “best interest of the child” has been implanted from the UNCRC in the Juvenile Justice (Care & Protection of Children) Act, 2015 (JJ Act), to mean “the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development”. Axiomatically, Courts in India, are now duty bound to ensure the true import of this meaning to full expression. The JJ Act was drastically amended in 2015 pursuant to India’s accession to the UNCRC and all beneficial provisions to secure the best interest of the child were incorporated in the JJ Act. This demonstrates the visible significance of the UNCRC in motivating amendment of Indian statutes to incorporate provisions of International Conventions.
Best Interests of the Child:
When India became a signatory to the United Nations Convention on the Rights of the Child (UNCRC) on 11 December 1992, steps were taken to secure the best interests of the child in India. Accordingly, section 2(9) of the Juvenile Justice (Care and Protection of Children) Act 2015 (JJ Act) now states that the ‘best interest of the child means the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social wellbeing and physical, emotional and intellectual development.’ The definition of the best interest of the child has been expounded by the Supreme Court in Lahari Sakhamuri v. Sobhan3 to mean that:
…it cannot remain the love and care of the primary care giver, i.e., the mother in case of the infant or the child who is only a few years old. The definition of “best interest of the child” is envisaged in Section 2(9) of the Juvenile Justice (Care & Protection) Act, 2015, as to mean “the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identify, social wellbeing and physical, emotional and intellectual development”.
Thereby, the Court in its wisdom, shattered the glass ceiling of gender preference and provided neutrality to parents’, on the welfare of the child principle. Earlier, in 2017, Justice A.K. Sikri in Vivek Singh v. Romani Singh4 discussed the concept of Parental Alienation Syndrome and held that “a child-centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the child, who are the future of the nation.” 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. The prophecy of Wordsworth resounds, reverberates, and echoes, resonating that the child is the father of man. This vibrant jurisprudence has evolved from the focus of the Courts to evolving law by interpreting provisions of UNCRC incorporated in the JJ Act. Consequently, this has also led to Indian Courts directing parties to obtain mirror orders from foreign courts, before children are relocated from India to their foreign homes as was done in Dr Navtej Singh v State of NCT & Anr5, upheld by the Supreme Court of India, in Jasmeet Kaur v State (NCT of Delhi) & Anr6.
This notable trend of finding alternate solutions for return of removed children till India signs the 1980 Hague Convention on Abduction, is an offshoot of protecting the best interest of the child secured by the UNCRC. Aided by principles of comity of courts, determination of best interest by jurisdiction of closest contact, succour is found in law enacted under the UNCRC umbrella.
