A Q&A guide to international relocation of children in India.
This Q&A gives a high level overview of matters relating to rights and responsibilities of parents, right to remove, procedure for relocation, dispute resolution in relocation matters, right to appeal, as well as child abduction.
Rights and responsibilities of parents
Legal responsibility for upbringing
1. What is the legal position of married and unmarried parents in relation to a child's upbringing, and is there a difference? Who has legal responsibility for a child's upbringing?
In India relationships between parents and children are governed by general (secular) and personal laws of the parties.
Guardian and Wards Act 1890
The Guardian and Wards Act 1890 (GWA) is a general law that governs the legal position with respect to a child's upbringing. It is a secular Act applicable to all persons irrespective of their religious practice. Under this Act, a "guardian" is responsible for the upbringing for a minor child/ward. A minor is a person under 18 years of age.
Under the Guardian and Wards Act 1890, "minor” is defined as a person who, under the provisions of the Indian Majority Act 1875 has not attained majority, that is, 18 years of age. “Guardian” means a person having the care of a minor or his property, or both.
Generally, the parents of a child, married or unmarried, are the natural guardians of the child. In the event of a dispute between the parents, one parent can file an application for declaration as "guardian" under section 7 of the GWA. Such power is exercised by the courts considering the welfare of the child and in accordance with provisions of section 17 of the GWA.
The GWA and other personal laws in India on family issues provide a redressal mechanism. Section 24 of the GWA sets out the duties of a guardian and provides that a guardian is charged with the custody of the child and must provide support with regards to health and education, and other matters that the law requires. Thus, in the event that the obligations set out under section 24 are not fulfilled, redressal provided under the Act can be sought. The GWA and other personal laws in India on family issues provide a redressal mechanism. Section 24 of the GWA sets out the duties of a guardian and provides that a guardian is charged with the custody of the child and must provide support with regards to health and education, and other matters that the law requires. Thus, if the obligations set out under section 24 are not fulfilled, redressal provided under the Act can be sought by filing an application before the court.
Section 43 of the Act allows the court to pass orders for regulating conduct or proceedings of guardians, and enforcement of those orders. It is provided that:
The court may, on the application of any person interested or of its own motion, make an order regulating the conduct or proceedings of any guardian appointed or declared by the court.
Where there are more guardians than one and they are unable to agree on a question affecting the ward’s welfare, any of them can apply to the court for its direction, and the court can make any order regarding the matter as it thinks fit.
Except where it appears that the purpose of the above orders would be defeated by the delay, the court will, before making the order, direct notice of the application or the intention to the guardian or the guardian who has not made the application.
In case of disobedience to such order, the order may be enforced in the same manner as an injunction granted under section 492 or section 493 of the Code of Civil Procedure 1882 (14 of 1882).
Under this provision, orders can be passed against a guardian declared or appointed by the court.
The following personal laws apply to parties depending on their religion.
Hindu law. The Hindu Minority and Guardianship Act 1956 and the Hindu Adoptions and Maintenance Act 1956 deal with minors and their upbringing and welfare. Provisions in these two statutes are complimentary to the Guardian and Wards Act and require the courts to read them together. When determining the aspect of custody and guardianship, paramount consideration must be given to the welfare of the minor child. The concept of welfare must be carefully deliberated and be taken in its widest sense. Therefore, the court must consider the moral and physical well-being of the child along with his/her emotional and affectionate ties.
The following guidelines are taken into account while deciding on the custody of a child:
Younger children should be committed to the custody of their mothers.
Custody of mature boys should be given to their fathers.
Custody of mature girls should be given to their mothers.
However, these are general guidelines and there is no hard and fast rule. As for the very young children, it is now a firmly-established practice that the mother should have the custody since the father cannot provide maternal affection (considered essential for the child's proper growth as well as for his/her proper psychological development) at this time.
Hindu Minority and Guardianship Act specifically provides that a child's custody must be given to the mother if the child is under five years old. Other statutes pertaining to other religions do not provide for such specific provisions.
Muslim law. Muslims in India are governed by The Muslim Personal Law (Shariat) Application Act 1937 (except in the State of Goa). The custody of a minor child in Islam is called "hizanit", which literally means the care of the infant. Under the Shariat law, the father is considered to be the natural guardian of his children irrespective of sex, but the mother can have the custody of her son until the age of seven and of her daughter until she attains puberty. Therefore, under the Muslim law, a male attains majority/adulthood when he reaches the age of seven and a female would attain majority on attaining puberty.
As stated above, section 6 of the Guardianship and Wards Act allows for the application of the personal law that the minor is subjected to. Section 17 of the GWA also stipulates that a guardian must be appointed in accordance with the personal law by which the parties are governed.
The High Court of Delhi in Akhtar Begum v Jamshed Munir, AIR 1979 Delhi 67 held that “the personal law of the parties must be kept in view in deciding an application for custody by virtue of the mandate of section 6 of the Act. If a court does not keep that in view it would be acting illegally and with material irregularity”.
Further, the High Court of Delhi while dealing with a habeas corpus petition in Mohammad Nihal v State, W.P.(CRL.)591 of 2008 and Crl. M.A. 5507 of 2008 referred to section 2 of the Muslim Personal Law (Shariat) Application Act 1937. Under this law, if the parties are Muslims, the Muslim personal law (Shariat) is applicable in matters pertaining to succession, inheritance, marriage, divorce, guardianship, and so on. The Court has held that, "if some doubt prevails pertaining to the applicability of Shariat laws in guardianship matters, it stands clarified by section 6 of the GWA. When a court is called to determine the welfare of a minor so far as appointment of a guardian is concerned, this must be done in accordance with Shariat law".
Christian law. Christian law relies on the Indian Divorce Act 1869 (IDA) for matters pertaining to custody. The Act is applicable to all religions of the country and is not discriminatory towards any religion.
Section 41 covers orders on children custody following separation. In any suit for obtaining a judicial separation, the court may from time to time, before making its decree, make such interim orders, and may make such provision in the decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the court.
Parsi law. The Parsi Marriage and Divorce Act 1936 provides for law relating to children in Parsi families. In any suit under this Act, the court can pass interim orders and make such provisions in the final decree as it may deem just and proper with respect to the custody, maintenance and education of the children under the age of 18 years if the marriage of their parents is the subject of the suit. In such cases, the court may, after the final decree on application, on application make, revoke, suspend or vary any orders and provisions with respect to the custody, maintenance and education of the children as might have been made by the final decree or interim orders if the suit for obtaining the decree was still pending.
The application on the maintenance and education of the children during the suit, should, as far as possible, be disposed of within 60 days from the date of service of notice on the respondent.
In Rosy Jacob v Jacob A Chakramakkal (1973) 1 SCC 840, the Supreme Court held that the object and the purpose of Guardian and Wards Act is not merely physical custody of the minor but due protection of the rights of the child's health, maintenance and education. The duty of the court under the GWA is to ensure the proper welfare of the minor.
In India, there is an appreciable difference between custody and guardianship. Guardianship is a more comprehensive and valuable right than mere custody. The concept of guardianship is therefore akin to trusteeship. The position of guardian is also more onerous than that of a mere custodian. Custody may, for example, be for a short duration and for specific purpose only.
Parents, when married and together, jointly share the custody of the child and are jointly responsible for the child's upbringing. In the case of separated/divorced parents, the legal responsibility of the child is with the parent who has been declared "guardian" by the court and awarded the legal custody of the child.
In India, the mother is usually awarded legal custody of the child. However, even in cases where the mother is awarded legal custody, the father is legally bound to provide financial support for the upbringing of the child and an order to this effect will be made by the courts when declaring guardianship and awarding custody.
Since, there is no difference between the legal rights of a legitimate and illegitimate child, the father will be bound to provide financial support towards the upbringing of the child, though the mother will be the "natural" guardian of the child.
There is no difference between the legal position of a father who is registered on the child's birth certificate and a father who is not. This doctrine flows from settled law and there is no difference between the legal rights of legitimate and illegitimate children.
In ABC v State (NCT of Delhi) 2015 (10) SCC1, the Supreme Court held that in case of children born out of wedlock, if the mother is the sole caregiver of the child and the father remains uninvolved and unconcerned, then the mother's application for declaring her as the sole guardian deserves acceptance as the welfare of the child is of prime importance. Moreover, the issuance of a birth certificate of a child born out of wedlock, is not dependent on appointment of unwed mother as guardian. The authorities [must] issue birth certificate regardless of the mother’s appointment as guardian by the court.
Section 11 of the GWA provides the procedure for appointment of guardian. This section applies to a situation where the guardianship of a child is sought by a third party, and makes it essential for the welfare of the child consult the views of the child's natural parents.
In ABC v State (NCT of Delhi) 2015 (10) SCC1, the Supreme Court stated that section 11 is purely procedural, and the courts have held that there is no harm in relaxing its requirements to attain the intention of the Act. Given that the term “parent” is not defined in the Act, in the case of illegitimate children whose sole caregiver is one of the parents, this means that parent alone. Guardianship or custody orders are never permanent or final and can be questioned at any time, by any person genuinely concerned for the minor child, if the child's welfare is in peril. The uninvolved parent is therefore not excluded from approaching the Guardian Court to quash, vary or modify its orders if the best interests of the child so indicate. There is, therefore, no mandatory and inflexible procedural requirement of notice to be served to the uninvolved parent in connection with a guardianship or custody petition preferred by the parent who is the sole caregiver of the child. In case of a child born out of wedlock, the views of an uninvolved father are not essential, to protect the interests of a child being raised solely by his/her mother.
Rights and responsibilities post-separation
2. Do parents continue to share rights and responsibilities for the child following separation?
Both parents continue to share rights and responsibilities of the child following separation. In India, usually the mother is awarded legal custody of the child. However, even in these cases, the father is legally bound to provide financial support for the upbringing of the child at least until the child reaches the age of majority (on attaining 18 years of age).
3. How do parents generally share the care of children following separation?
In the event of separation of the parents, usually the mother is given the legal custody of the child. More recently, however, mothers and fathers have been awarded joint custody of children.
However, even in cases where the mother is given sole custody, the father is legally bound to provide financial support for the upbringing of the child until the child reaches legal majority.
Custody and access
There is no fixed legal position in relation to custody and access/contact/visitation with respect to a child. Welfare of the minor child is the paramount consideration and the court takes on the role of parens patriae (parent of the nation).
Section 17 of the Guardian and Wards Act lists the following matters that must be considered by the court when appointing a guardian:
In appointing or declaring the guardian of a minor, the court will be guided by the welfare of the minor in the given circumstances.
In considering the welfare of the minor, the courts must have regard to the:
age, sex and religion of the minor;
character and capacity of the proposed guardian and their relationship to the minor,
wishes, if any, of a deceased parent;
any existing or previous relations of the proposed guardian with the minor or his/her property.
If the minor is old enough to express a reasoned preference, the court may consider that preference.
The court cannot appoint or declare any person to be a guardian against their will.
The personal law that the minor is subject to will be relevant in the appointment of the guardian. This personal law is subject to two limitations, that is, the provisions of section 17 and the welfare of the minor. If the consideration of the welfare of the minor or conclusions resulting from section 17 make it impossible to follow the guidance of the personal law, then the personal law may be abandoned and steps most conducive to the welfare of the minor and consistent with the provisions of this section will be taken.
Under section 17(2), the court considering the welfare of the minor the court must have regard to the:
Age, sex and religion of the minor.
The character and capacity of the proposed guardian.
The closeness of relationship between the proposed guardian and the minor.
The wishes, if any, of a deceased parent.
Any existing or previous relations of the proposed guardian with the minor or his/her property.
If the minor is mature enough, their preference should be considered.
Section 19 of the Guardian and Wards Act provides for cases in which a guardian cannot be appointed. A court cannot appoint or declare a guardian of the property of a minor:
Whose property is under the superintendence of the Court of Wards.
Who is a married female and whose husband is not, in the opinion of the court, unfit to be her guardian. This applies to cases where the child was married before attaining the age of majority.
Whose father is living and is not in the opinion of the court, unfit to be the guardian of the minor.
Whose property is under the superintendence of the Court of Wards competent to appoint a guardian of the minor.
In cases regarding determination/regulation of the child's living/care arrangements, the Indian courts are governed by the underlying principle of the best interest and welfare of the child. There is no fixed principle of law and all orders must be issued with this principle and the facts and circumstances of the case in mind. The landmark cases include:
Rosy Jacob v Jacob A Chakramakkal (1973) 1 SCC 840). Orders relating to custody of children are, by their very nature, not final but interlocutory and subject to modification at any future time on proof of change of circumstances, requiring change of custody. However, any such change in custody order must be proven to be of paramount interest to the child.
Thrity Hoshie Dolikuka v Hoshaim Shavaksha Dolikuka (1982) 2 SCC 544. In this case, the Supreme Court while adjudicating the custody of the child, held that, the court has a special responsibility and duty to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody, the court must be guided by the only consideration of the welfare of the minor. The case was filed under section 49 of the Parsi Marriage and Divorce Act 1936, and the court did not ascertain the wishes of the child before adjudicating the custody while observing that the minor was not fit to form an intelligent preference which may be taken into consideration in deciding their welfare.
RV Srinath Prasad v Nandamuri Jayakrishna & Ors (2001) 4 SCC 71. In this case, the Supreme Court held that custody of minor children is a sensitive issue. It is also a matter involving sentimental attachment, and must to be approached and tackled carefully. A balance must be struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors, which is of paramount importance. It was further held that the custody orders by their nature can never be final. However, before a change is made, it must be proved to be of paramount interest to the children. In a sensitive matter like this, no single factor can be taken to be decisive. Neither affluence nor capacity to provide comfortable living should be the consideration of the court.
Rukma Singh and Ors. v Suhaib Ilyasi 2001 (10) SCC 172. This case involved a dispute regarding the custody of a four-year old girl between the father and maternal grandmother and aunt. The Supreme Court held that since the arrangement for custody of the child made by the lower court is an interim arrangement subject to the order in proceedings before the competent court and such proceedings have already been instituted before the Guardianship Court in which a petition for interim custody has been filed. Therefore, the arrangement for custody did not interfere with the order. It was held that the interest of justice will be adequately served if the petition for interim custody of the child is considered by the Guardianship Court expeditiously and the appropriate order is passed.
Keshav R Thakur and Anr v Suchhibai 2005 (9) SCC 424. In this case, the Supreme Court awarded custody of a boy aged 16 to the grandparents over the mother as the child had been living with his grandparents since the age of six.
Premchand Jinrajsa Sahuji v Surendra 2005 (12) SCC 451. In this case, the Supreme Court before deciding the issue of custody of the girl child, directed the High Court to appoint a child psychiatrist to consider adverse psychological impact on the child if the custody of the child was given to the father from the relatives of the dead mother.
Sheila B Das v PR Sugasree 2006 (3) SCC 62. The Supreme Court awarded the custody of a minor girl to the father after speaking to the minor girl, without either of the parents being present, to ascertain her preference in the matter. The 12-year-old child was highly intelligent, having consistently done extremely well in her studies in school, and the court was convinced that despite the dispute between her parents, she would be in a position to make an intelligent choice with regard to her custody. From the discussion with the minor, the Court gathered that although she had no animosity as such towards her mother, she would prefer to be with the father with whom she felt more comfortable. The minor child also informed that she had established a very good relationship with her paternal aunt who was now staying in her father's house and she was able to relate to her aunt in matters which would concern a growing girl during her period of adolescence. In this case, the Court saw no reason to consider the father ineligible to look after the minor. In fact, after having obtained custody of the minor child, the father did not appear to have neglected the minor or her needs. The child appeared to be happy in the father's company and has also been doing consistently well in school. The father appeared to be financially stable and was not disqualified in any way from being the guardian of the minor child. No allegation, other than his purported apathy towards the minor, has been put against the father by the mother. Therefore, it was held that the interest of the minor will be best served if she remains with the father but with sufficient access to the mother to visit the minor at frequent intervals but so as not to disturb and disrupt her normal studies and other activities.
Mousmi Moitra Ganguli v Jayant Ganguli (2008) 7 SCC 673. In this case it was held that it is the welfare and interest of the child and not the rights of the parents which was the determining factor for deciding the question of custody. It was the further view of the Court that the question of welfare of the child had to be considered in the context of the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents. The court gave due weight to the child's ordinary well-being, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also been noted. They are equal if not more important than the others.
Gaurav Nagpal v Sumedha Nagpal (2009) 1 SCC 42. In this case, the principles of English and American law were considered by the Supreme Court, which held that the legal position in India was not in any way different. It was held that when the Court was confronted with conflicting demands made by the parents, each time it must justify the demands. The Court must not only to look at the issue of legal basis, but also on human angles which are particularly relevant in those issues. The Court does not put emphasis on what the parties say, it must focus on the welfare of the minor. It was held that the word "welfare", used in section 13 of the Act, must be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also be considered be the Court as well as its physical well-being. Although the provisions of the special statutes which govern the rights of the parents and guardians may be taken into consideration, there is nothing that can stand in the way of the Court exercising its parens patriae jurisdiction in such cases.
Gaytri Bajaj vs Jiten Bhalla 2012 (12) SCC 471/ 478. In this case, the Court held that the wishes of children are of prime importance in determining the custody. An attempt was made by the Court, even by means of a personal interaction with the children, to bring the issue of custody and visitation rights to a satisfactory conclusion. However, from the materials on record, it was possible to conclude that the children, one of whom was on the verge of attaining majority, did not want to live with their mother. Both children appeared to be happy in the company of their father who was in the position to look after them, provide them with adequate educational facilities and bring them up appropriately. The children were reluctant to live with the mother, even for a short duration of time, and the Court held that any visitation right to the mother would be against the best interests of the children.
It was observed that an order of custody of minor children either under the provisions of the Guardians and Wards Act 1890 or Hindu Minority and Guardianship Act 1956 was required to be made by the Court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of either parent that is considered while deciding their entitlement to custody. The desire of the child coupled with the availability of an appropriate environment for proper upbringing as well as the ability and means of the concerned parent to take care of the child are some of the relevant factors that must be taken into account by the Court while deciding the issue of custody of a minor. While all other factors are relevant, it is the desire, the interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination of the Court.
Dayamanti Hemant Matani v Viren Bhagwandas Asher and Anr (2016 (16) SCC 543). In this dispute between the father and the maternal grandmother, the Supreme Court permitted that the father could take the minor girl abroad for medical treatment and directed that the custody be handed over to the father. It was also directed that the grandmother could stay with the child during the course of the treatment abroad.
Relocation/right to remove
4. Are relocation cases a familiar feature of family law within your jurisdiction?
Relocation cases are not a familiar feature of family law in India. Both parents are assumed to be the natural custodians of their child. Therefore, there is no bar against a parent removing the child from the jurisdiction against the wishes of the other parent. It is only necessary for a parent to seek permission of the court to remove the child from the jurisdiction when any of the following are applicable:
There is a restraining order of the court.
The matter adjudicating child custody is pending in the court.
The court has passed an order granting one parent the exclusive custody of the child.
Such action is objected to by the other parent.
Matters relating to family and custody are considered to be of a civil nature. Therefore, even in the case of child abduction by one parent, the matter is considered to be of civil nature and, unlike in western countries, arrest warrants are not issued. In cases of child abduction, the other parent has a remedy in the form of filing a writ of habeas corpus or by seeking relief of restoration under the Guardian and Wards Act.
5. When do relocation disputes tend to arise and what are the most common reasons for parents seeking to relocate?
In India, relocation of children in family law is not a familiar concept and therefore there is no specific statute that deals with relocation of children. However, there is a statute that custody and guardianship of children: the Guardian and Wards Act. Relocation of children in India takes place on an informal level rather than through a formal procedure. The most common way of informal relocation is by relocating the child within the family, mostly in cases of judicial separation/divorce.
Relocation disputes tend to arise primarily when the parents of the children separate or divorce. Most common reasons for parents seeking to relocate include:
Moving residence due to new jobs.
Settling down in their home town after the divorce.
Cases where one parent returns from a foreign country and now settles down in India.
General principles and guidance
6. What is the legal position of a parent who seeks to relocate a child internationally?
Under Indian law, both parents are natural, legal guardians of their child. Therefore, there are no domestic Indian laws that prohibit a parent from relocating nationally or internationally.
However, if one parent approaches the court and obtains an order restraining the other parent from removing the child from the jurisdiction of the Indian court, the relocation with the child internationally or domestically would amount to the contempt of court.
Under section 26 of the Guardian and Wards Act, a guardian of the person appointed or declared by the court cannot, without the leave of the court by which he was appointed or declared, remove the ward from the limits of its jurisdiction except for such purposes as may be prescribed. The ward can be removed from the jurisdiction of the court if:
The person is the collector (that is, a guardian looking after the property of a minor). “Collector” means the chief officer in charge of the revenue-administration of a district and includes any officer whom the State Government appointed to be a collector in any local area or with respect to any class of persons.
The guardian is appointed by will or another instrument.
The leave granted by the court may be special or general and may be defined by the order granting it.
Section 44 of the Guardian and Wards Act set out the penalties for removing a ward from the jurisdiction of the court. The penalty is a fine up to INR1,000, or imprisonment in the civil prison for up to six months.
7. What are the legal principles applicable to relocation disputes?
Since relocation is not a formal procedure in India, generally speaking, the legal principles applicable to cases for determining custody disputes would apply to relocations disputes. Under Indian law, maximum importance is given to the best interests of the child. Basic principles are as follows:
The age, sex and religion of the minor are important.
In most cases, the mother gets the custody of the minor child specially when the child is under the age of five.
The character and capacity of the proposed guardian is considered very carefully by the courts and they usually reject baseless allegations against the mother.
Fathers are usually given the custody of older male children and mothers are given custody of older female children. However, this is not a strict rule and the decision must be made while keeping the interest of the child in mind.
When the child is above the age of nine, his/her opinion on the choice of parent should be considered, as the child is thought to have gained rationality in decision-making and have sufficient understanding.
Due to the undisputed care and affection of a mother towards her child, she is given custody of the child. However, she may be refused custody due to her neglect or ill treatment of the child.
In cases of siblings, courts prefer to keep children united and award custody of both to either of the parents.
The child's intellectual, health, material, comfort, moral and spiritual welfare should also be considered.
8. Do the principles applicable to relocation disputes differ in cases where the parent is seeking to relocate temporarily rather than permanently?
There is no legal precedence with respect to disputes of relocation in India, whether permanent or temporary.
9. Have the courts in your jurisdiction provided any guidance to help the judges to apply the principles correctly?
There is no legal precedence with respect to disputes of relocation in India, whether permanent or temporary.
10. Have the prospects of being successful on making an application for relocation changed over time?
In India, there are no specific legal provisions with respect to relocation. A request for relocation can be made in an application seeking modification of custody or guardianship order.
Procedure for relocation
11. What is the legal procedure for seeking to relocate?
In India, there is no specific legal procedure with respect to relocation.
Duration of procedure
In India, there is no specific legal procedure with respect to relocation.
12. What steps can be taken to prevent a parent removing the child from the jurisdiction without the agreement of the other parent or the court's permission?
A restraint order can be obtained from the court prohibiting the parent from removing the child from the jurisdiction without the agreement of the other parent or the court's permission. Such orders can be obtained on the ground of serious apprehension and threat.
Once such order is obtained, the local police authorities and other law enforcing authorities are informed. The school authorities of the child and airport authorities are also informed.
Alternative dispute resolution (ADR)
13. Are methods of ADR used to help to resolve relocation disputes in your jurisdiction? How effective are these ADR methods in such cases?
ADR, including mediation and counselling, are the preferred methods of resolving family disputes. They are very effective in resolving family disputes as they are not time consuming, tedious and are cost effective.
Factors in relocation cases
14. What significance do the child's wishes and feelings have in a relocation case and how are these ascertained/presented?
The child's welfare is of paramount importance when deciding custody/relocation matters. Generally, the principles governing custody disputes would apply to relocation disputes. In Ratan Kundu & Anr v Abhijit Kundu (2008) 9SCC 413, the Supreme Court observed that the welfare of the child is the paramount consideration (and not the statutory rights of the parents). It was further explained that courts must ascertain the child's wishes, and if the minor is old enough to form an intelligent preference, such preference must also be considered.
A similar stand has been taken in Chandrakala Menon (Mrs) v Vipin Menon (Capt) (1993) 2 SCC 6, where the courts stated that the custody of a child must be decided on the sole and predominant criterion of the best interest and welfare of the minor.
15. Are there any differences between geographical regions/areas in your jurisdiction in the way in which relocation disputes are determined by the courts?
Laws concerning custody are fairly uniform all over India. The difference is within religions of the parties and not geographical areas. Since India is a diverse country accommodating many cultures, regions and communities, extreme importance is given to personal laws (laws of different communities). Though the primary law dealing with issues of children is the Guardian and Wards Act, the courts can also adjudicate in accordance with the individual's personal laws.
Offers of security
16. Do offers of security for the return of the child to spend time with the other parent feature in relocation disputes in your jurisdiction? What form do these take?
There are no judicial precedents on this issue.
Rights of appeal
17. If a parent is dissatisfied with the decision made by a court in a relocation case, does the parent have a right to appeal?
In India, a family-related case is usually dealt with by the trial court, in particular the family courts. A family court has jurisdiction to adjudicate on the following suits and proceedings:
A suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void, or, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage.
A suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person.
A suit or proceeding between the parties to a marriage with respect to the property of the parties or one of them.
A suit or proceeding for an order or injunction in circumstances arising out of a marital relationship.
A suit or proceeding for a declaration as to the legitimacy of any person.
A suit or proceeding for maintenance.
A suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
A statutory appeal is available under section 19 of the Family Courts Act 1984 against all decisions made by such courts. Any appeal can be filed within a period of 30 days from the date of the order.
Section 19 of the Family Courts Act 1984 provides that an appeal can be made against any judgment or order (provided it is not an interlocutory order) of a family court to the High Court both on facts and on law, except in case of the exceptions as provided in this section.
The right to appeal under section 19 is available regardless of anything contained in the Code of Civil Procedure 1908, the Code of Criminal Procedure 1973 or any other law, which are the parent statutes providing the procedure to be followed in civil and criminal proceedings respectively.
The exceptions provided under section 19 are as follows:
No appeal can be made from a decree or order passed by the family court with the consent of the parties, or from an order passed under Chapter IX of the Code of Criminal Procedure 1973, provided that nothing in this subsection will apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (before the commencement of the Family Courts (Amendment) Act 1991. Chapter IX of the Code of Criminal Procedure contains Section 125 to 128 which deal with order for maintenance of wives, children and parents.
Every appeal under this section must be submitted within a period of 30 days from the date of the judgment or the order of a family court.
The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the family court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure 1973 to satisfy itself as to the correctness, legality or propriety of the order (provided it is not an interlocutory order) and, as to the regularity of such proceeding.
An appeal against the judgment of a family court will be heard by a bench consisting of two or more judges.
18. Is any documentation required by a parent who wishes to leave your jurisdiction including for a holiday with a child when travelling without the other parent? If so what documentation is required?
While travelling with a child, generally a letter of consent seeking permission to take the child must be obtained from the lawful parent(s)/guardian of the child. In cases of separation/divorce, the consent must be obtained by the parent taking the child to travel from the other parent.
Where the battle for custody is ongoing, the parent taking the child to travel must take permission from the court's in whose jurisdiction the dispute is pending, and must provide a complete itinerary to the court.
Where one parent has interim custody of the child, he/she must seek the permission of the court before taking the child out for a trip, if there is an existing order which bars the parent from taking the child out of the country. In such case the parent must then approach the court to seek modifications to that order. Next, the parent must provide a document that provides complete details of the purpose of the trip, destination and duration of the trip.
The document must incorporate the following:
The full name (first, middle and last as shown on the citizenship documentation) of the child.
The child's age at the start of the journey.
The countries that the child will be travelling to.
The start and end date of the travel.
Insurance and consent for medical treatment may also be included.
Overview/domestic and international law
19. What is the position if a parent removes a child from your jurisdiction to another without the consent of the other parent and/or permission from the court?
There is no specific statute/domestic law which provides for rights of parents in case of international child abduction. The law governing this area is precedent-based law.
India is not a signatory to the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) or any other related treaty/convention. Therefore, India is not under any obligation to return a child to the country from which it has been wrongfully removed.
However, the Supreme Court of India recently held that, where children have been wrongfully removed from the jurisdiction of foreign countries to which they belong, the principle of comity of nations would apply and the parties should be sent back to the jurisdiction of the court that had the closest relation to the child. The courts in that country should conclusively adjudicate on the issue of custody.
The law laid down by the Supreme Court of India has changed over time. The landmark cases which help understand the principles followed by Indian courts in adjudicating issues of international child abduction are as follows:
Surinder Kaur Sandhu v Harbax Singh Sandhu (AIR 1984 SC 1224). This is one of the earliest judgments, in which the Supreme Court held that the modern theory of conflict of laws recognises and prefers the jurisdiction of the state which has the most intimate contact with the issues arising in the case. The Supreme Court held that jurisdiction was not decided by incidental factors such as where the child was taken or was for the time being lodged. To allow the assumption of jurisdiction by another state in such circumstances would encourage forum shopping. Ordinarily jurisdiction must follow on functional lines. For example, in matters relating to matrimony and custody, the governing law is that of place which has the closest link with the well-being of the spouses and the welfare of the offspring of the marriage.
Elizabeth Dinshaw v Arvand M Dinshaw & Anr (1987) 1 SCC 42. In this matter, the Supreme Court of India held that, whenever a question arises before a court relating to the custody of a minor child, the matter must be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would serve best the interest and welfare of the minor.
Dr V Ravi Chandran v Union of India & Ors (2010) 1 SCC 174. This was a ground-breaking case in which the mother and father lived in the US and litigated in the US courts, leading to a consent order regarding their child. Subsequently the mother came to India with the child in violation of the US court order and was untraceable. In this case, the Supreme Court directed the Central Bureau of Investigation (CBI) to find the child as the mother fled from the course of justice. The Supreme Court of India held that the US court was the only competent court to adjudicate disputes relating to the child and, if the mother had any grievance, she could seek modification of the consent order in the US court. The Supreme Court explicitly ordered that if the parties did not return to the jurisdiction of the US courts within the stipulated time to settle their disputes regarding child custody, the child would be handed over to the petitioner father. However, the case continued. The mother sought an extension of time to return to the jurisdiction of the US courts to obtain her visa, but afterwards was untraceable. The Honourable Supreme Court again directed the CBI to trace the child. This time after the child was traced, the Supreme Court directed the CBI to hand over the child to the father. The child was recovered by CBI in Chennai and handed over to the father and they returned to the jurisdiction of US courts.
Shilpa Aggarwal v Aviral Mittal (2010) 1 SCC 591 . In this case, both the parties, who were permanent residents of the UK, visited India with their three-year-old daughter. The wife refused to return to her matrimonial home in the UK with the daughter. The husband filed for the custody of his daughter. The Supreme Court of India held that matters of child custody should be adjudicated by the courts that had the most intimate contact with the issue in question. The Supreme Court placed reliance on the principle of comity of courts and the best interest of the child and directed that the final decision with regard to the custody of the child should be taken by the English courts where both the parents permanently resided.
While dealing with a case of custody of a child removed by a parent from one country to another, in contravention of the orders of the court where the parties had set up their matrimonial home, it was held that the court in the country to which child has been removed must first consider the question of whether the court should either:
conduct an elaborate enquiry on the question of custody; or
summarily order a parent to return custody of the child to the country from which the child was removed and that all aspects relating to child's welfare be investigated in a court in their own country.
Ruchi Majoo v Sanjeev Majoo (2011) 6SCC 479. The Supreme Court clarified that the duty of a court exercising its parens patraie jurisdiction in cases involving custody of minor children is onerous. As welfare of the minor is the paramount consideration, the Supreme Court held that where a foreign court has taken a particular view on any aspect concerning the welfare of the minor, it was not enough for the Indian courts to avoid an independent consideration of the matter. Objectivity is key in these cases. This does not, however, mean that the order passed by a foreign court is not a factor to be kept in mind.
Arathi Bandi V Bandi Jagadrakshaka Rao and Ors. 2013(15) SCC 790. In this case, the Supreme Court followed its ratio in the judgment of Dr V Ravichandran. In that case, it was held that no relief could be granted to the parent whose conduct involves removing the child from the foreign country to India in defiance of the orders of the court of competent jurisdiction. The Supreme Court specifically approved the modern theory of conflict of laws, which prefers the jurisdiction of the state which has the closest contact with the issues arising in the case.
Jitender Arora vs Sukriti Arora 2017 (3) SCC 726. In this case, the dispute involved the custody of a 15-year old girl child who was brought to India by her father. The mother seeking custody of the child filed a habeas corpus petition in India seeking the return of the child to the UK. The Supreme Court kept in mind the wishes of the child, rejected the petition of the mother on the ground that the child was a mature girl of 15 years old and that she was competent to take a decision for herself. It was observed that she unequivocally and without any reservations expressed her desire to be with her father and more importantly, she had very categorically said that she did not want to go to the UK.
Nithya Anand Raghavan vs State of NCT (2017) 8 SCC 454. In this case, the Supreme Court dismissed the petition seeking the return of the child back to the foreign country. The Court held that India courts cannot be stripped of their power to decline the return the child to the native state merely because of a pre-existing order of the foreign court of competent jurisdiction. However, such matters must be considered on case-by-case basis, whether in a summary inquiry or an elaborate inquiry. The Supreme Court reiterated that the exposition in the case of Dhanwanti Joshi is a good law and has been quoted with approval by a three-judge bench of this Court in Dr V Ravi Chandran. The Court also approved the view taken in the case of Dhanwanti Joshi, that among other things, as far as non-Hague Child Abduction Convention countries are concerned, the law is that the Court in the country to which the child is removed, while considering the question, must bear in mind the welfare of the child being of paramount importance and treat the order of the foreign court as only one factor to be taken into consideration.
The summary jurisdiction to return the child must be exercised in cases of acts which could psychologically disturb the child, such as where:
the child had been removed from its native land and removed to another country where his/her native language may not be spoken;
the child is taken away from the social customs and contacts to which he/she has been accustomed; or
the child's education is interrupted and the child is being subjected to a foreign system of education.
Again, the summary jurisdiction can be exercised only if the court [of the country] to which the child has been removed acts promptly and quickly. The overriding consideration must be the interests and the welfare of the child.
Prateek Gupta vs Shilpi Gupta (2018) 2 SCC 309. In this case, the Supreme Court held that the invocation of the principle of comity of courts and the doctrines of "intimate contact and closest concern" must be judged on the basis of the facts and circumstances of each case. The doctrines of "intimate contact and closest concern" in cases of child abduction indicate that the courts in whose jurisdiction, the child has been living for many years is the court that has the closest contact with the child and therefore is the place where the issues of child custody and ancillary issues should be determined. The Indian courts, undermining such doctrines have held that the ultimate concern should be the welfare of the child, with other factors being of secondary importance. In the process of adjudication on the issue of repatriation, a court can adopt a summary enquiry and order immediate restoration of the child to its native country. If the applicant/parent is prompt and alert in his/her initiative and the existing circumstances justify such course of action to preserve the welfare of the child, such a course can be approved in law, if the relevant factors testify irreversible, adverse and prejudicial impact on the physical, mental, psychological, social, cultural existence of the child. On the other hand, if the applicant/parent is slack and there is a considerable time lag between the removal of the child from the native country and the steps taken for its repatriation, the court would prefer an elaborate enquiry into all relevant aspects bearing on the child, as with the passage of time, the child would have grown roots in the new country and its environment.
It was held that the doctrines of "intimate contact" and "closest concern" are of persuasive relevance, only when the child is uprooted from its native country and taken to a place to encounter foreign environment, language, and culture, which significantly affects its overall growth and upbringing. It has been consistently held that there is no forum convenience in wardship jurisdiction and the court's main task is to secure the welfare of the child.
Kanika Goel v State (2018) 9SCC 578. This is the latest case dealing with the issue of child abduction, where a three-judge bench held that the issue cannot to be decided on the basis of rights of the parties claiming custody of the minor but the focus should remain on whether it is in the best interest of the minor to return to the native country. The fact that the minor child will have better prospects on return to his/her native country, may be a relevant aspect in substantive proceedings for custody of the minor but will not be decisive to examine the threshold issues in a habeas corpus petition. For the purpose of habeas corpus petition, the court will focus on examining the circumstances of the minor who had been removed from the native country and taken to a place to encounter new environment, language, and culture, interfering with his/her overall growth and upbringing, and whether continuing to live there would be harmful. This has been the consistent view of the court as restated in the recent three-judge bench decision in Nithya Anand Raghavan, and the two-judge bench decision in Prateek Gupta.
20. Is your jurisdiction a signatory to any relevant treaty or convention concerning child abduction? Which regulation/ convention is it best to proceed under? How do they relate to one another?
India is not a signatory to the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) and therefore is not under an obligation to return a child to the country from which he/she had been wrongfully removed.
India is also not a signatory to the:
Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II Regulation).
HCCH Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children 1996 (Child Protection Convention).
The law relating to international child abduction is precedent based law and there is no specific statute/convention governing the courts in India. Repatriation of the child is done on the basis of principles of comity of law (under which states will mutually recognise each other's legislative, executive, and judicial acts). However, precedence is always given to the welfare of the child. In a recent judgment of the Supreme Court, it has been held that the essence of the judicial decision on the issue of repatriation of a child removed from its native country must be clearly founded on the predominant imperative of its overall well-being, the principle of comity of courts, and the doctrines of "intimate contact and closest concern". Though the principle of comity of courts and the above doctrines in a foreign court are factors that deserve notice in deciding the issue of custody and repatriation of the child, it is no longer res integra (a question that has not been examined or undecided) that the overriding determinant would be the welfare and interest of the child.
21. Are there any defences which could be raised by a parent to attempt to avoid the child's return?
The primary defence which could be raised by a parent to attempt to avoid the child's return would be that it is not in the interest of the child to return to the foreign country. Another defence could be that the child has developed "roots" in India and therefore it would be against the interest of the child to uproot him/her.
22. How are the child's wishes/feelings ascertained or presented in an abduction case?
The child's wishes and feelings are ordinarily ascertained by interviewing the child in private chambers by the judge or by appointing a child counsellor.
In Arathi Bandi v Bandi Jagadrakshaka Rao & Ors (2013) 15 SCC 790, the Supreme Court interviewed the child (an eight-year old boy) and ascertained that he had been thoroughly brain washed against the father. The Court then, permitted the father to be alone with the child for about three hours in the Court chambers and after the meeting the child seemed to be not wholly averse to meeting the father again.
23. Are any legal developments in progress or planned in the law which may affect the law or practice in relocation or abduction cases?
According to recent press reports, the government of India is unlikely to sign the Hague Child Abduction Convention, which makes inter-country abduction of children by parents a punishable offence, in the near future. It has been observed that signing the Convention may go against the interests of women who escape bad marriage.
It is a popular sentiment that India needs a compatible domestic law in place before joining the treaty. However, news reports indicate that Ministry of Women and Child Development of the Government of India has decided against drafting a domestic law to address the civil aspects of international child abduction.
It is true that there has been a steady rise in parental abductions as more and more Indians go abroad to work or study, and that children bear the brunt of parents' marital disputes and are often forced to return to India by one of the quarrelling parents. But in most cases, it is the mother who returns with the child and the legislators feel that they need to protect women who return to India after escaping bad marriages.
The solution indicated by the current Government was, instead of framing a domestic law, to implement an internal mechanism to redresses complaints from women who have run away from violent marriages and returned to India with their children.
The Law Commission of India examined the issues involved in the transnational marital discords especially with reference to custody disputes and submitted its 218th Report (The Need to accede to The Hague Convention on the Civil Aspects of International Child Abduction (1980)) on 30 March 2009, which advised the Indian Government to sign the Hague Child Abduction Convention. Afterwards, the Ministry of Women and Child Development (WCD) of the Government of India drafted a bill, the Civil Aspects of International Child Abduction Bill 2016.
The issue of international child removal also came up for consideration before the Punjab and Haryana High Court in the case Seema Kapoor and another v Deepak Kapoor & others, where the matter was referred for consideration by the Law Commission of India. Consequently, the Law Commission of India submitted its 263rd Report containing, which contained a draft Bill: The Protection of Children (Inter-Country Removal and Retention) Bill 2016. On 18 May 2017, a multi-member committee was constituted by the WCD to examine the Civil Aspects of International Child Abduction Bill 2016 and draft suitable legislation. The committee submitted its report on 23 April 2018 along with a draft, The Protection of Children (Inter-Country Removal and Retention) Bill 2018, which was placed on the website of Ministry of Women and Child Development for comments from various organisations and individuals. However, the WCD has still not received comments or suggestions regarding the report from either Ministry of Home Affairs or the Ministry of External Affairs and therefore no further action has been taken.
The Protection of Children (Inter-Country Removal and Retention) Bill 2016 is broadly in conformity with the Hague Child Abduction Convention and mirrors its provisions. Although India is currently still not a signatory to the Convention, the Bill is an attempt to set the stage for India to sign the Convention.
The Hague Child Abduction Convention itself uses the word "abduction". However, this it is not intended as in an ordinary case of abduction under criminal law. As such, the word "abduction" within the Hague Child Abduction Convention, is to be considered as "wrongful removal or retention" which appears throughout in the text of the Convention. Therefore, the Law Commission is of the opinion that the word "abduction" should be dispensed with in the current Bill.
Changes were made by the Law Commission to the bill drafted by the WCD (The Civil Aspects of International Child Abduction Bill 2016) keeping in view the above discussions, the legislative precedents and practices followed in the drafting of bills, and to suitably harmonise its provisions with the Hague Child Abduction Convention.
The revised bill is called "The Protection of Children (Inter-Country Removal and Retention) Bill 2018". The Justice Bindal committee/Chandigarh committee submitted a draft of "The Protection of Children (Inter-Country Removal and Retention) Bill 2018.
Stressing the need for mediation as the first step, the Committee recommended the Government establish an Inter-Country Parental Child Removal Disputes Resolution Authority (Authority). The Authority would provide a one-stop solution in cases of inter-country removal and retention of children.
Justice Bindal Committee has recommended that the Authority is chaired by a retired High Court judge, with members from legal and social sector along with representatives from key Ministries. The Committee has recommended that the Authority examines the inter-country cases of removal and retention of children in the cultural context, merit of the case, and the best interest of the child. Along with its recommendations, the Committee also submitted draft legislation to the Government.
In the Committee's opinion, the concept of habitual residence is not synonymous with the best interests of the child. Returning a child to the place of habitual residence may result in sending the child to an incompatible set-up, and may overlook the fact that a mother is the primary caregiver of the child. The panel has also prepared a draft law to safeguard the interests of children, as well as those of the parents, particularly mothers. The proposed legislation sets out nine exceptions under which a child will not be returned to the country of habitual residence.
Under the revised bill, the circumstances under which a child's return can be refused include:
Best interests of the child.
Domestic violence or mental or physical cruelty or harassment against the parent who fled with the child.
The parent claiming the return of the child was not exercising the custody rights at the time of the removal.
Grave risk that the child would be exposed to physical or psychological harm.
Currently¸ a petition is pending before the Supreme Court of India seeking directions for formation of guidelines and legislation for international parental child abduction. The Ministry of Women and Child Development in its memorandum of 20 December 2017 constituted the Integrated Nodal Agency (INA) for NRI marital disputes. In order of 27 July 2018, the Ministry of Women and Child Development directed the National Commission for Protection of Child Rights to constitute a mediation cell to resolve cases regarding international parental abduction. This mediation cell was set up on 29 August 2018. The Integrated Nodal Agency (INA) refers cases to the mediation cell, that develops a parental plan and submits post- mediation report to the INA. The mediation process must be completed within six months and the final speaking order is passed by the INA on the basis of the report. An interministerial group has been established, co-chaired by the MWCD & MEA to provide conclusions on the Justice Bindal Committee Recommendations.
**Assisted by Natasha Sahrawat and Gauri Goburdhan, Advocates.
Professional qualifications. Senior Advocate, India
Areas of practice. Constitutional law; food and environmental law; power and electricity matters; human rights issues; arbitration; corporate law; environmental matters; mining matters; property matters; public interest law; private international law; family law; intellectual property rights; information technology and telecom; representing financial institutions; coal companies; builders; governments of France and Belgium; multi-national companies; governments and government companies; insurance companies.
Non-professional qualifications. Doctorate of Law (Honoris Causa), KIIT University, 2012; LLM (Inlaks Scholar), Harvard Law School, USA, 1980 to 1981; LLB (All India Postgraduate Scholarship Awardee), University of Delhi, 1977 to 1980; BA (Hons) in Economics, University of Delhi, 1974 to 1977; French National Order of Merit by President of the French Republic(at the level of "Officer").
Constitutional right of freedom and expression for South Indian Actress Khushboo. Supreme Court upheld the rights in a pathbreaking judgment and quashed 21 cases of defamation.
Represented the French Government in the famous case of Clemenceau ship.
Introducing common medical examination NEET in the country.
Upheld the Preconception and Prenatal Diagnostic Technique (Prohibition of Sex Selection) Act1994.
Hiral P. Harsora And Ors vs Kusum Narottamdas Harsora laying down the law that men and women can be prosecuted under the Domestic Violence Act irrespective of gender.
Triple Talaq struck down in Shayara Banu (2017).
Legal battle for BJP Leader Arjun Munda to be made the Chief Minister of Jharkhand.
V. Ravi Chandran vs. Union of India & Ors., on inter country parental abduction.
Landmark case in private International Law of Stephanie Becker in Re adoption.
Led the battle for legalising e-rickshaws & getting drinking water to Dwarka.
Landmark case of limited appeal from Armed Forces Tribunal to Supreme Court.
Amicus in NJAC matter before the Constitution Bench on improving procedure for appointment of Judges.
SL foundation v Union of India & Ors. (Doing away with the evil practise of Devdasi).
Save Life Foundation v Union of India. (Good Samaritan Case in Motor Accident cases).
Devika Biswas v Union of India & Ors. (Against forced Sterilization of women).
Christian Medical College Vellore and Ors. Vs. Union of India and Ors. Famous NEET case.
Ban on Dance Bars in Mumbai.
Ongoing case on Ban of Pornography and Child Pornography in India.
Constitutional case on definition of “Industry” before Constitution Bench.
Represented Government in the Aadhar case before Constitution Bench.
Languages. English, Hindi, Punjabi
Designate Senior Advocate.
Additional Solicitor General of India.
Vice President of the Bar Association of India.
French National Order of Merit by the President of the French Republic.
Professor at Amity Law School (Honorary).
Arbitrator of Indian Council of Arbitration.
Member of IAFL.
BRICS steering committee member.
Alternate Country Councillor of LAW ASIA (The Law Association for Asia and the Pacific).