This article is written by Harshit Bhimrajka currently pursuing B.A.LLB (Hons) from the Rajiv Gandhi National University of Law, Patiala. This is an exhaustive article which talks about the laws, general principles, and guidelines in India on relocation to abroad with the child.
Every parent and child should know the legal position and formality when a parent wishes to relocate to a new country with his/her child. Mostly the reason behind relocating abroad with the child arises from either divorce or separation. The relocation can be in several ways for instance when a parent wants to move abroad with their children to pursue a career opportunity, or to return home with the child from a country in which they have been living with the other parent, or for a new relationship, etc. So, it is pertinent to know what the legal position will be in the proposed new destination. When a situation of divorce or separation arises the person(s) for whom it becomes the most emotionally fraught situation is child or children. Indian Law holds the welfare of the child as the most important factor in these situations. In this article, we will discuss the laws in India concerned about relocating abroad with the child, and also the laws concerning the international child abduction.
Relocation with Child
General Principles and Guidelines
One can understand the concept of relocation with the right to remove the child from the jurisdiction of one parent by another parent. The law related to relocation in India is not featured under family law. Particularly there is no statute concerning the international or domestic relocation with the child in India. However, there is a statute that deals with the guardianship and custody of the children that is the Guardian and Wards Act, 1890. Also, there is no bar against a parent removing the child from the jurisdiction of another parent as in India parents are considered as the natural custodians of their child.
If however, it became necessary for a parent to seek the permission of the court for relocation or removing the child from the jurisdiction in some cases such as in the matter when adjudicating custody of the child is pending in the court, or there is a restraining order of the court, or removing the child from jurisdiction is objected by another parent and even after the relocation happened then, it would amount to contempt of court, or the court has provided exclusive custody of the child to one parent. The relocation and disputes concerning relocation mostly arise when the parent of the child tends to seek divorce or judicial separation. According to Section 26 of the Guardian and Wards Act, a guardian appointed by the court cannot, without the leave of the court by which he was appointed, remove the child from the limits of the jurisdiction except for some purposes such as:
- The guardian appointed by the court is a “collector” (the person looking after the property of the child or minor). “Collector” refers to the chief officer in charge of the revenue administration of a district and it also may be any officer as appointed by the state government to be a collector in any local area or with respect to any class of persons, and
- The guardian is appointed by will or some other instrument.
The penalty prescribed in Section 44 of the Guardian and Wards Act,1890, for removing the child or ward from the jurisdiction of the court as 1000 INR or imprisonment in the civil prison for up to six months.
There is no formal procedure for relocation prescribed in the Indian Law machinery, so the legal principles applicable to cases for determining the custody of the children would also apply to the relocation disputes. As specified before, Indian Law gives the paramount importance for the welfare of the children. In the case of Ratan Kundu & Anr. v. Abhijit Kundu (2008) the Supreme Court observed that the welfare of the child is the paramount consideration and courts must ascertain the child’s wishes while giving the decision and if the minor is matured enough to form an intelligent preference, such preference should also be considered. Similarly in Chandrakala Menon v. Vipin Menon’s (1993) case, it was stated the custody of the child must be determined on the predominant criteria of the welfare of the minor.
Following are the basic principles which are followed:
- Often a mother gets custody of the children especially when the children are under the age of five.
- The age, religion, and sex of the minor are also considered as an important factor.
- The baseless allegation against the mother is rejected and the character and capacity of the proposed guardian are considered.
- If there is more than one child then, courts prefer to keep children united.
- The child’s intellectual, material, health, moral, comfort, and spiritual welfare is also considered.
- Fathers are usually given 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 the parent should be considered, as the child is thought to have gained rationality in decision-making and have sufficient understanding.
The best way to resolve these types of disputes is to prefer Alternate Dispute Resolution (ADR) methods especially mediation and counselling. They are very effective in resolving the family disputes as they are not tedious, and time-consuming rather they are cost-effective.
The cases of disputes related to family issues are usually dealt with family courts in India. According to Section 19 of the Family Courts Act 1984, a statutory appeal is available against all the decisions made by the family courts, and it can be filed within a period of thirty days from the date of the order. It is also mentioned under the section that an appeal can be made against any order or decision of a family court to the High Court except in cases of the exceptions as provided under the section. The right is available regardless of the provisions mentioned in the Code of Criminal Procedure 1973 and Code of Civil Procedure 1908.
In India, there is no statute or legislation regarding the rights of parents in case of international child abduction. The laws governing the nation regarding international child abduction are precedent-based. Even India is not a signatory of any convention or treaty related to the international abduction so there is no obligation to return a child to the country from which it has been wrongly removed. However, the Supreme court held that the principle of comity of nations would apply where the children are wrongly removed from the jurisdiction of foreign countries. The laws laid down by the Supreme Court has changed over time and to understand the principles adjudicating issues of international child abduction some of the landmark cases have to be discussed:
- Elizabeth Dinshaw v. Arvand M Dinshaw & Anr. (1987):
In this case, the Supreme Court of India held that whenever the question of custody of a minor child arises, it should not be decided on consideration of the legal rights of parties but solely and predominantly on the criteria of best interest and welfare of the child.
- Jitender Arora v. Sukriti Arora (2017):
This case is related to a dispute involving a fifteen-year-old girl who was brought to India by her father and the mother seeking custody of the girl filed a writ of habeas corpus in the Supreme Court. The Supreme court considered the welfare of the child and asked the girl about her wishes and on the basis of that it rejected the petition of the mother seeking custody of the girl. It was held that the girl was mature enough to make a decision of herself and she unequivocally and without any reservations expressed to be with her father.
- Prateek Gupta vs Shilpi Gupta (2018):
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 are 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 inquiry and order the 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 inquiry 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 also 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. The State of Delhi (2018):
This case was related with the issue of child abduction in which the Supreme Court of India held that the decision should not be considered on the basis of the rights of the parties claiming the custody of the child but should be predominantly focused on the best interest of the child to return to the native country. The fact that the child will have better prospects in returning to his native country should not be decisive to examine the threshold issues in a petition of habeas corpus even though it would be a relevant aspect in the issue related to custody of the child. The main aspects on which the court will focus are the circumstances of the child who had been removed from the native country and brought to a new place to encounter new culture and environment interfering with the child’s growth, and if it is harmful to continue to live there.
As specified above, India is not a signatory to any convention such as the Hague Child Abduction Convention on the Civil Aspects of International Child Abduction 1980 (HCCH Convention) related to international child abduction so it is not under any obligation to return a child to his/her native country.
In India, there are no laws and guidelines which have to be followed in the cases of relocation with the child or removing the child from the jurisdiction of one parent by another parent and the issues related to international child abduction. The laws governing are precedent-based and the sole criterion on which the decision is made is on the basis of child interest and his/her welfare. India neither a signatory to any convention, is free to make any decision and it is unlikely to sign these conventions as signing these conventions may go against the interest of women who escaped bad marriage. However, the Ministry of Women and Child Development has decided to draft a domestic law to address the civil aspects of international child abduction.
In 2016, the Ministry drafted a bill- the Civil Aspects of International Child Abduction with respect to the Law Commission’s 218th Report concerning the need to accede to the HCCH Convention. In the 263rd report, the Law Commission submitted a draft bill- the Protection of Children (Inter-Country Removal and Retention) Bill 2016 and a committee (Justice Bindal Committee) was formed to examine the drafts and in 2018 it submitted its report which was open for comments and suggestions. The 2016 Bill was broadly in conformity with the HCCH conventions and mirrors its provisions. Still, there is no complete legislation in India however the ministry has constituted a mediation cell to resolve these types of disputes.
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