Child custody
Image Source - https://rb.gy/dbsjns

This article is written by Yash Sharma, a law student at Vivekananda Institute of Professional Studies, Indraprastha University, New Delhi. This article deals with whether the Indian courts can decide the matters of custody of a foreign national child and also, whether the decree made by such a court is enforceable outside India.

Introduction

There have been many cases in India, where a family of non-Indian nationality approached the court for disputes related to custody of a child. In India, the custody of a child is decided by the court after separation or divorce keeping in mind the welfare and health of the child. Other factors that are important for the welfare of a child is ethical upbringing, safety, proper education and economic well-being. The cases of the child in custody are dealt with under the ‘Guardian and Ward Act, 1890’. This Act is a secular enactment that is applied if the separating couple is from two different religions or foreigners. Other religious enactments that govern cases of custody from a particular religion cannot be applied to the cases, where the custody of a child of foreign nationality is decided.

In this article, a study of the jurisdiction of Indian Courts concerning the case of custody of a foreign national child is prepared. In particular, this article elaborates on the point of enforcing the decree of custody made by a foreign court.

Execution of decree made by a foreign court in India

Execution of a decree made by a foreign Court is possible. The Indian Code of Civil procedure, 1908 (CPC) lays down the provisions that provide for such enforcement. There is a fundamental formula that is followed by the Courts in India to enforce the decree passed by any foreign court or tribunal. The formula requires the decree or ruling to be a conclusive one, one which is granted based on merits and issued by a superior court competent in terms of jurisdiction.

Section 13 of the Code of Civil Procedure, 1908 is essential to the whole assimilation of all the codified laws to deal with these cases. The Section says that the decree or order made by a foreign court shall be enforceable if it is conclusive. Conclusiveness of a decree or order where the parties and claims made by them in such case can be figured if it is not made of such factors-

  1. Court pronouncing the judgment is not competent or lacks the jurisdiction.
  2. If it is not given on the merits of the case i.e. based on the provisions that provide for such cases.
  3. When the international law is not followed or the recognition of Indian law when necessary is not taken into account in the proceedings of the case on the face of it.
  4. If the laws followed or grounds on which the judgement is given is in contravention to the Principle of Natural Justice.
  5. If the case is framed and the decree is obtained by fraud.
  6. If the claim obtained is found to be in contravention of Indian laws.

Similarly, if the custody of a child decree must be made while keeping all these factors into account then only it could be enforced in India. In the case of custody of a child, if the parties are governed under some specific personal religion then the laws and provisions.

Custody of child of Hindu Couple

In the case of Hindu Couple, married under Hindu Law and started residing in foreign. If they subsequently get separated, the decree can be enforced if, firstly, the grounds of divorce mentioned in the Hindu Marriage Act, 1955 are fulfilled. Secondly, the case must be contested and must not be a result of arbitrational order. If all the laws and pieces of evidence taken into account are not in violation of the Hindu Marriage Act, then the decree shall be considered exhaustive and can be enforced.

Comity of court

The Doctrine of Comity states that the decrees made by the courts are to be recognized outside their jurisdiction unless it is against the public policy of that state. It is followed as this doctrine strives to achieve a very basic goal of law that is the orderly, consistent, and final resolution of disputes. This way the Indian Court can decide the cases related to the custody of a child of foreign nationality enforceable in his or her respective nation. The Doctrine works both ways and binds Indian Courts as well to obey the decisions given by the courts of foreign nations. The facts and circumstances are taken into account together with the legal instruments used and their provisions.

As per the definition of Black Law’s Dictionary, “Judicial Comity” also known as “the comity of courts” could be defined as the principle according to which the court of one jurisdiction recognizes the validity of a court of another jurisdiction out of respect and deference of law. Also, it is recognized that this doctrine is upheld in cases where the custody of a child is the subject matter.

Supreme Court in Ruchi Majoo v. Sanjeev Majoo stated that the cases of custody of a child are not barred by the jurisdiction of a court even if the child is not a citizen of the nation of the Court. Similarly, in any case, if the child is taken by the parents from the residential area of the matrimonial home in contravention of the order made by the local court will not bar Indian Courts to rule upon the custody of a child. Although the nationality and residency of the child is an important factor in deciding the custody of the child.

The Supreme Court is of opinion that only because a case has been decided or is pending in some other court does not stop the Indian Courts to formulate their own independent opinion. Also, it says that if a foreign court has a particular opinion regarding some aspect of the welfare of the child can not be considered exhaustive and other courts can also enforce a decree. It accepts that the order or decree given by such a foreign court can be raised as a factor in the decision of the court. However, it does not imply that the foreign court’s order is exhaustive if it is considered as a factor in grounds for the decision.

Ruchi Majoo vs. Sanjeev Majoo

In this case, the respondent Sanjeev Maṣjoo alleged that the appellant, his wife has abducted their child from California and has been residing in India ever since without his consent. He was able to produce the decree made by the Supreme Court of California ordering the custody of the child to him. They were both residents of India but were residing in their matrimonial home in America. She came to India for a vacation but never returned to their home in America. Ruchi was able to obtain an interim custody decree from the additional District Court of New Delhi for the custody of the child. The order was quashed by the High Court on the grounds that the case did not lie in the Court’s jurisdiction. Deciding upon the issue of jurisdiction of the case Section 9(1) of the Guardians and Wards Act, 1890 was invoked. The Section states that the jurisdiction in deciding the case of custody of a child shall be the District Court of the place where the child ordinarily resides. On this point, the jurisdiction of the Additional District Court of New Delhi was denied and the order was quashed.

Obligation of Indian Courts to respect the judgement of Foreign Courts

It is stated by the Supreme Court that the case decided by the Court of a foreign nation can not be set aside solely on the grounds that those laws are inconsistent or in contravention to the laws of India. If the Matrimonial Couple gained the citizenship of some other country and got married in that country as per Hindu rites and custom, the court of that country has complete jurisdiction to decide their case.

Indian Courts have a consistent stance on the matter of child custody that:

  1. If a parent illegally removes the child from that country to India to gain an advantage will not help his or her case.
  2. Jurisdiction or inconsistency with Indian Laws as a ground for non-execution of a decree made by a foreign court shall not be maintainable.
  3. The husband is liable to make necessary travel and accommodation arrangements to get the decree from such a foreign court if the wife is not residing in India.

Arathi Bandi vs. Bandi Jagadrakshaka Rao

In this case, the Supreme Court responded to appeals made in the form of a special leave petition against the order given by the High Court of Andhra Pradesh, Hyderabad. A writ was issued by the Court in the nature of Habeas Corpus directing the petitioner to return and summon in the U.S. Court as they have the jurisdiction over the case.

In this case, the husband and wife obtained USA citizenship and also got married in the USA as per their religious rites and customs. Also, they applied for divorce in USA court as per their national laws. The husband was granted custody of the child by the USA court. The wife took the child and came to India. In India, she applied for custody of the child. On arriving in India the Indian Police took the child from the husband and handed the child over to the wife.

It was observed that the welfare of the child is to be given paramount consideration while deciding upon the case of custody of a child. If in the initial proceedings the custody is given to one spouse until permanent custody is decided, that spouse shall continue to keep the child as to legal and proper custody. Also, considering the welfare and happiness of the child, the act of removing a child from its native country and being taken to the country where his or her native language is not spoken would amount to distress on his mental health. If the child is cut off from his social customs and environment to which he is already customized and interruption to his or her education would be regarded as an act causing psychological disturbance to the child.

Shilpa Aggarwal vs. Aviral Mittal

In this case of 2009, the Supreme Court decided upon the matter of litigation of marital dispute or matter of child custody already pending in a foreign court. It was observed by the court that most NRI mothers wish to return home and seek legal support from local sympathetic courts. As a complete bar on this practice, the Supreme Court said that Indian Courts can not settle the dispute of such subject matter which is already pending in foreign courts and are yet to be decided.

In this case, the custody of a girl was the subject matter, who was born in Britain and also had British citizenship while her parents had Indian citizenship. After this judgment of the Supreme Court, the family has to travel back to Britain and summon in the High Court of the Country, Family Division. They were summoned by the court to decide the custody of the girl on November 26, 2008.

Conclusion

The law in India that provides for the custody of a child is the Guardians and Wards Act, 1890. This is a secular enactment that deals with all the cases where a couple of foreign nationalities contest the case for the custody of a child. Section 13 of the Code of Civil Procedure states the essentials for a foreign decree to be enforced in the courts of India. For it to be executed it has to be exhaustive. Also, in cases of custody of a child or marital disputes, the Supreme court has stated in various cases that the doctrine of “judicial comity” or “comity of the court” shall be applied. The doctrine says that decided cases by the court of some foreign nation shall be respected in Indian Courts as well and can not be overridden. Similarly, the Supreme Court has also stated that if a case is judged while the procedure is defying the principle of natural justice or in contravention of Indian Laws, it can be taken up in Indian Courts as well.

Lastly, the Indian Courts have the power to entertain the case of custody of a child of foreign nationality. The Court although has to comply with the doctrine of judicial comity and legal statutes such as the Code of Civil Procedure, 1908 and the Guardians and Wards Act, 1890. Also, there are some restrictions in some situations where the court can not entertain such cases such as if the case is already pending in a foreign court or if the case doesn’t fall in exceptions mentioned in section 13 of the Code of Civil Procedure.

References

  1. http://www.legalserviceindia.com/legal/article-710-child-custody-laws-in-india.html
  2. https://heinonline.org/HOL/LandingPage?handle=hein.journals/cathl24&div=37& id=& p age=
  3. https://www.legallyindia.com/views/entry/comity-of-courts-jurisdiction-issue-in-child-custody#:~:text=According%20to%20Black’s%20Law%20Dictionary,out%20of%20deference%20and%20respect
  4. https://www.scconline.com/blog/post/2019/02/25/decree-of-divorce-granted-by-a-foreign-court-and-its-maintainability-in-india-a-critical-analysis/
  5. http://www.legalservicesindia.com/law/article/1225/15/Can-Indian-courts-can-decide-the-Child-custody-of-a-Foreign-National-child-#:~:text=The%20Supreme%20co urt %20of%20India,was%20inconsistent%20with%20Indian%20Law.&text=Supreme%20court%20strictly%20ask%20the,obey%20the%20US%20court%20order.
  6. https://economictimes.indiatimes.com/news/politics-and-nation/indian-court-cant-settle-nri-custody-dispute-sc/articleshow/5329231.cms?from=mdr

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here