The Judicial 'Shifting Sands' In Transnational Parental Abduction

This decision was affirmed by the Delhi High Court and the Supreme Court. However, in order to safeguard the interest of Smriti the Supreme Court by a 2:1 verdict, directed Perry to obtain a 'mirror order' from a competent Court in Nairobi which would reflect the directions of the Supreme Court Judgment^[2]. It was held that "such an order is ancillary or auxiliary in character and supportive of the order passed by the court which has exercised primary jurisdiction over the custody of the child". The Supreme Court also observed that:

"It would avoid a situation where conflicting orders may be passed by courts in two different jurisdictions on the same issue of custody of child. These orders were passed keeping in mind the principle of comity of Courts and public policy. The object of a mirror order is to safeguard the interest of the minor child in transit from one jurisdiction to another, and to ensure that both of the parents are equally bound in each state. The mirror order is passed to ensure that the courts of the country where the child is being shifted are aware of the arrangements which were made in the country where he had ordinarily been residing. Such an order would also safeguard the interest of the parent who is losing custody, so that the rights of visitation and temporary custody are not impaired."

(Emphasis Supplied)

The Supreme Court also expressed hope that the judgment of The Indian Supreme Court would have great persuasive value on the Kenyan Courts.

Following the orders of the Supreme Court an unsuspecting Z was sent away with his father to Kenya.

Perry, it transpired, had other plans. Once Z was with him in Kenya, Perry stopped the visitation granted to Smriti and moved the Kenyan Court for cancellation of the judgment passed by the Indian Supreme Court. Separately, the Kenyan Court too, declined to pass a mirror order on the ground that India was a non-reciprocating nation under the Kenyan Foreign Judgments (Reciprocal Enforcement) Act and since the proceeding was in connection with the custody or guardianship, the Indian Supreme Court judgment is not registrable.

The mother, Smriti, who was left in the lurch, again approached the Supreme Court seeking justice. The Supreme Court in its order of October 7^th, 2021, initiated contempt proceedings against Perry and recalled its earlier order. The custody of Z with Perry was declared to be illegal and void ab initio. The CBI was directed to secure and entrust the custody of Z to Smriti^[3]. However, despite these directions, Z continues to be with Perry in Kenya. Smriti remains in India, hoping anxiously-one day to be reunited with her son.

With a rise in immigrations and in marriages between Indians and foreign nationals, cases of 'transnational child abductions' or parental removals are becoming common. International Parental child abduction or removal is the removal of a child by one parent from one country to another without the approval of the other parent. Child removal, in this context, encompasses an interference with parental rights or a parent's right to contact with the removed child^[4].

To address the menace of transnational inter country abduction, The Hague Convention on the Civil Aspects of International child Abduction was established. This Treaty is aimed at preventing the wrongful removal of a child and to ensure her return to her place of habitual residence within member countries. It requires the establishment of a central authority to assist parents in locating the removed child, to encourage an amicable resolution and process requests for return of the removed child. The Convention has been signed by 101 countries. Conspicuously, India, is not a signatory to the Hague Convention.

In the absence of any codified law on inter-country parental removal, these cases are decided by Indian courts by invoking principles of comity of Courts, best interest and welfare of child etc. However, the approach of the Indian Courts has been far from consistent.

In Perry Kansagra, the Supreme Court's opinion was also influenced by an expectation that the Kenyan Court would show deference to its order and accordingly pass a 'mirror orders.' Oddly, though, judicial precedents will demonstrate that Indian Courts have themselves shown scant regard for Orders passed by foreign Courts in child custody matters.

Principle of comity of Courts is essentially a principle of self-restraint, applicable when a foreign court is seized with the issue of the custody of a child prior to the matter reaching a domestic court. Though the principle of comity of Courts is contained in Ss. 13 and 44-A of the Civil Procedure Court, 1908, these provisions do not recognize foreign judgments which have not been passed on the merits of the case.

One would notice that often in transnational custody cases there is a prior interim order by a foreign court. In the Judgment of Surya Vadanan^[5], the Supreme Court has held that in passing an interim or interlocutory order, a foreign Court is as capable of making a prima facie fair adjudication as any domestic Court and there is no reason to undermine its competence or capability.

The noticeable inconsistency of Judicial opinion of Indian courts in invoking the principle of comity of Courts can be demonstrated from the instances that follow.

Earlier, Indian Courts showed deference to orders passed by foreign Courts and even directed the repatriation of the removed child from India to the country where the proceedings were pending. In 1984, in the matter of Smt Surinder Kaur Sandhu v Harbaksh Singh^[6], the Supreme Court directed that the custody of the child, Pritpal, be handed over to his mother in the UK. Both the parents were residents of the UK and the father without the consent of the mother removed the child to India. The mother moved the Family Court in UK, which directed the husband to hand over the custody of the minor boy to mother. Thereafter, the mother filed a habeas corpus before the Punjab and Haryana High Court which was rejected. She challenged this Order before the Supreme Court, which allowed her appeal and recognized the jurisdiction of the UK Courts over the child. A direction was made by the Indian Supreme Court to repatriate the child to the UK. It was held that in matters relating to matrimony and custody, the law of that place will govern which has the 'closest concern' with the well-being of the spouses and the welfare of the off springs of marriage. The court considered the fact that since the matrimonial home of the spouses was in England it will be just for the Courts of UK to assume jurisdiction to enforce obligations.

Again, in 1987, in Mrs. Elizabeth Dinshaw v Arvand M. Dinshaw^[7] the Supreme Court was dealing with a case where the wife was a US citizen and the husband was Indian. They got married in US and a child was born to them. Differences cropped up between the couple, with the wife filing a petition seeking divorce. The jurisdictional court in US had dissolved the marriage by a decree of divorce and entrusted the wife with the care, custody and control of the child till he reached the age of 18 years. The husband was granted visitation rights. Taking advantage of the weekend visitation rights, the husband picked up the child from school and removed him to India. The wife filed a petition under Article 32 before the Supreme Court. The petition was entertained and allowed by the Supreme Court. The Supreme Court held that it would be in the best interest of the child to live with his mother in America since the child has not taken roots in this country and he is still accustomed and acclimatized to the conditions and environments obtaining in the place of his origin in the US. It may be noted that in both Smt Surinder Kaur Sandhu and Mrs. Elizabeth Dinshaw, though the Supreme Court ordered the child to be repatriated to the foreign country, the Supreme Court did not specifically base its decision on the principle of comity of Courts.

However, in 1998 in Dhanwanti Joshi v Madav Unde ^[8], one of the questions that fell for consideration was whether the taking away of a child to India by his mother, in violation of an order passed by a competent US Court would have a bearing on the decision of the Courts in India while deciding on the issue of custody and the welfare of the child. Relying on Mc Kee v Mc Kee^[9], the Supreme Court held that it was the duty of the Courts in the country to which a child is removed to, to consider the question of custody, having regard to the welfare of the child. In doing so, the order of the foreign court would yield to the welfare of the child and that the comity of Courts simply demanded consideration of any such order issued by the foreign court and not necessarily their enforcement. The Supreme Court refused to repatriate the child to US but granted temporary custody of the child to the mother.

In the 2000 case of Sarita Sharma v Sushil Sharma ^[10], the Supreme Court decided the custody issue of two minor children in exercise of its writ jurisdiction and granted custody to the mother despite the orders of the US court that had granted custody to the father. Significantly, the Court did not make any reference at all to the principle of comity of Courts.

The principle of 'Comity of Courts' was again applied by the Supreme Court in 2010 in the matter of Shilpa Agarwal v. Aviral Mittal^[11], where it directed that the child be returned to England to join the proceedings pending before the High Court of Justice, Family Division, UK, which would determine which parent would be best suited to have the custody. The Court also observed that the contrasting principles namely comity of Courts and welfare of child must be balanced in deciding custody matters.

In Ravi K Chandran v Union of India^[12], the mother had removed her minor child (a foreign national) from the US in violation of a custody order passed by the Family Court of the State of New York. The Supreme Court directed the children be returned to its "habitual residence" on the principle of "comity of Courts." The Court held that the principle of "comity of Courts" does not require a Court to blindly follow an order made by a foreign Court and the prior judgment of foreign Court is only one of the factors that the Indian Court may consider while deciding a custody petition. It was held that due weightage should be given to the views formed by a foreign Court. However, the principle of comity of Courts does not demand its enforcement, but its grave consideration.

However, the very next year, in 2012, the Supreme Court in Ruchi Majoo v Sanjeev Majoo^[13] rejected the principle of comity of Courts applied by the Delhi High Court that had directed the child to be returned to the US and held that the Interest and welfare of minor was paramount. It was observed that a competent Court is entitled and duty bound to examine the matter independently, taking the foreign judgment only as an input in the final adjudication.

The principle of comity of Courts was again cited by the Supreme Court in the 2013 case of Arathi Bandi^[14], where the Court directed the mother, who had brought the child to India, in violation of the order of the US Court, to repatriate the child to the US. The Court held that it is the duty of the Courts in all countries to see that a parent committing a wrong by removing a child out of the country does not gain the advantage of his or her wrongdoing.

In the 2015 case of Surya Vadanan^[15], the minor girls were British citizens. In a petition of Habeas Corpus the Supreme Court directed the return of the girls to the UK, also because of an Order passed by the Court of competent jurisdiction in the UK to produce the girls before it. The Supreme Court once again invoked the principle of comity of courts and held that this principle should not be jettisoned except for special and compelling reasons. The Supreme Court also held that if the jurisdiction of the foreign Court is not in doubt, the 'first strike' principle would be applicable. That is to say that due respect and weight must be given to a substantive order prior in time to a substantive order passed by another court (foreign and domestic).

This judgment of Surya Vadanan that gave primacy to the principle of comity of Courts was, however, was doubted in 2017 in the three Judge bench Supreme Court Judgment of Nithya Anand Raghavan^[16]. In Nithya Anand Raghavan, the mother removed the child to India in violation of an interim order passed by a US Court where her wardship petition was pending. The father instituted a habeas corpus petition before the Delhi High Court. The intimate contact test, comity of Courts test, the first strike test was invoked by the High Court and it was directed that the child be repatriated to the US. The Supreme Court however reversed that Judgment on the appeal of the mother and refused to allow the repatriation of the child. The Supreme Court held that the 'first strike' principle in Surya Vadanan's case is not decisive and the judgment of the foreign Court is only one of the relevant factors to decide a custody issue. The paramount consideration being -the welfare of the child.

Thereafter, the Supreme Court again had the occasion of visiting the issue in 2019 in the matter of Lahari Sukhamuri^[17]. In this case, while interpreting Nithya Anand Raghavan it was held that the doctrine of comity of Courts and intimate contact, cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child must not result in any physical, mental, psychological or other harm to the child. Taking a holistic consideration of the entire case and of the principle of comity of Courts, orders of foreign Courts having jurisdiction over the matter regarding the custody of children, citizenship of the spouse and children, intimate connect, and above all, welfare and best interest of the minor children, the Court directed the child be returned to the United States.

The same principles were applied the following year by the Supreme Court in the matter of Yashita Sahu^[18].

As a result, the shifting sands of Judicial opinion on the issue in India has created considerable judicial uncertainty. In Minerva Mills^[19] the constitution bench, in the context of 'judicial uncertainty', quoted Justice Roberts of the US Supreme Court in Smith v. Allwright, 321 US 649, 669, 670 (1944). This passage, best sums up the almost seasonal change in judicial view on the subject:

"The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket good for this day and train only…. It is regrettable that in an era marked by doubt and confusion, an era whose greatest need is steadfastness of thought and purpose, this Court which has been looked to as exhibiting consistency in adjudication, and a steadiness which would hold the balance even in the face of temporary ebbs and flows of opinion, should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of our institutions."

The Judicial trends, or the lack of it, show that the principle of comity of Courts has often made way for other principles of law purely at the discretion of the court.

The comity principle was applied and the child repatriated to the foreign country, where there was prior pending litigation in Shilpa Agarwal, Ravi K Chandran, Arathi Bandi, Surya Vadanan. Then again, in Dhanwanti Joshi, Sarita Sharma, Ruchi Majoo, Nithya Anand Raghavan the Supreme Court refused to repatriate the child despite the existence of a prior Order from a foreign Court. The comity of Courts principle was also sacrificed and repatriation refused when in the opinion of the Court the child had taken roots and adjusted to life in India. Whatever the rationale, a parent who has lost custody of its child is ushered into the arena of uncertainty and forced to run from one jurisdiction to the other.

Despite the Hague Convention having garnered widespread international patronage, India continues not to participate. News reports claim that India has defended its decision not to sign the Convention on the ground that signing it would be to the disadvantage of the Indian women as there were far more cases of Indian women escaping abusive marriages abroad and returning "to the safety of their homes" in India.^[20] The decision not to endorse the Convention runs contrary to the 218^th Law Commission Report titled "Need to accede to the Hague Convention on the Civil Aspects of International Child Abduction (1980)" which recommended that India should become a signatory to the Hague convention.

The Government of India also drafted the "Protection of Children (Inter Country Removal and Retention) Bill, 2016". The draft bill inter alia contemplates setting up of a central authority to facilitate the location and return of a child who is removed to India and from India to other contracting states. It empowers the central authority to move the High Court where the child is physically present and in order to ascertain cases of wrongful removal, the High Court may take notice of judicial Orders of contracting States of the habitual residence of the child. The 263^rd Law Commission Report also suggested changes to the bill. However, the bill was never tabled.

In the present scenario, it is vital for India to become a signatory to the Hague Convention and to introduce a comprehensive law addressing all facets of international child abduction. This will usher in, the elusive but much needed certainty in the field of transnational child custody battles.

The author practices at the Supreme Court. Views are personal.

[1] Identity of the child is withheld to respect his privacy.