Disputes relating to custody and visitation rights of the children arise in some NRI marriages that have lasted for sometime. In some cases, fathers forcibly take away the children abroad, while in others, mothers return with their children to India finding it difficult to live in a hostile foreign environment. In doing so, they might be violating custody and visitation orders granted by foreign courts. If custody orders have not been previously granted, then often the fathers procure them exparte in a foreign country in their own favour. Transnational custody battles raise several legal complications, such as:
- Whether Indian Courts have jurisdiction to decide the question of custody of a child who, in these cases, may be a foreign citizen?
- Does the intention of the mother and the child to reside in India confer jurisdiction upon Indian courts?6
- Whether Indian Courts should uphold custody orders passed by foreign courts? In what circumstances can they be upheld?
Whether Indian courts should undertake summary proceedings in the face of a pre-existing custody order from a foreign court to send the child back to the foreign country?
- What principles govern the issue of custody in such cases? Should the question of the welfare and interests of the child prevail?
In a long line of decisions, the Supreme Court of India and the High Courts had upheld the welfare and best interests of the child to be the guiding principle in custody matters, even when they involved children who had been brought to India.
Therefore, even if a foreign court had already decided the issue of custody, Indian courts took a re-look at the question through the angle of the best interests of the child if one of the parents filed for these proceedings in India. This came to the aid of mothers who had to flee a foreign country due to the hostile environment with their children. Courts considered it in the child’s best interest to grant custody to the mothers who were their primary caregivers.
However, the recent decision of a Constitutional Bench of the Supreme Court of India in V. Ravichandran v. Union of India makes a break from the long line of precedents. It prioritized the principle of comity of nations over that of the welfare of the child, by ordering that the child, a US national aged 7 years old, should be sent back to the United States of America. The SC held that instead of approaching Indian courts, the mother should apply for variation of custody orders in that country. On facts, the mother had been moving from place to place with the child in an attempt to escape legal proceedings initiated by the husband. The child, accordingly, had also been compelled to regularly switch schools, preventing him from developing a stable life in India. It appears that the Court was greatly swayed by this fact. The Court also blamed the mother for not asking for custody when she first arrived in India. This authoritative precedent by the Supreme Court has thrown the previous line of authority into disarray, such that subsequent cases have had to justify their orders against this decision.
The Hague Convention on the Civil Aspects of International Parental Child Abduction provides one solution to address this heterogeneous trend of decisions. However, India is not currently a signatory to this. Though the Law Commission of India in its 218th Report, and some other entities, have recommended that India should accede to the Convention, women’s rights activists have opposed it. This is because the Convention pays no heed to women who are often forced to flee a foreign country with their children to escape mistreatment and abuse by their husbands. It instead blindly provides that if a parent abducts a child in contravention of custody orders from a country in which the child was residing, the courts in the recipient country are bound to summarily decide the case and return the child to the country of earlier residence, except in limited circumstances.
