PROJECT TITLE :- CUSTODY OF CHILD IN UNDER PRIVATE

INTERNATIONAL LAW

Submitted to Dr. (Prof) Hina Kausar

Faculty of Private International Law School Of Law

Submitted by :-

 Samriddhi Kapoor
 Roll no – R760220113
 Sap ID- 500085335
 BBA-LLB Batch-1
 Corporate law
 TABLE OF CONTENT

1. Introduction
2. Understanding “Child Custody”
3. Custody of a Child in case of Overseas Dispute
4. Determination of a jurisdiction
5. Remedies Available when the Child is taken Wrongfully
i. Remedies
ii. Indian Perspective
6. Relocating a Child to a Foreign Country
7. Relevant Provisions and Laws across the Globe
i. The Hague Convention
ii. Highlights of the Convention
iii. Provisions in India
a. Recent Development in India
8. Landmark Judgements
i. Prateek Gupta v. Shilpi Gupta & Ors.
ii. Smt Surindar Kaur Sandhu v. Harbax Singh Sandhu
9. Conclusion
INTRODUCTION
We now live in a global society whereby the world has become a small village and easily
connected over the few years. It is also a far smaller place than it used to be in the past too.. In the
current world, and more so in the developed world, ‘border hopping,’ or even ‘Continent
bouncing,’ has never been as convenient, or as Cheap than it is currently.
Globally speaking, and even locally, we can posit that the environment, in which we live and
even our children live, has become tremendously large. Currently, it is very frequent for individuals
to be transferred and posted to different other foreign countries for employment, etc., because of
globalization and international employment openings.
While the world is now filled up with more opportunity the opposite is also true as risk has
also increased. All these fantastic phenomena have a luster to them but what we do not fully
appreciate is a fact that the globalization, cross-border movement and mobility produce new threats
and adversities to children who are left in cross-border situations.
Now there is higher propensity outlook that living in other country, being married, raising
children all at the same time may lead to complicated problems. People today meet and interact
more within partnerships regarding individuals with different cultural backgrounds and different
nationalities, their mindset cannot be as almost identical.
If we see particularly the contemporary statistic of India, it reveals that, more than one billion
domicile Indians now exist about 25 million are Non-Resident Indian’s those who have shifted to
different legal domain, formed new families, new spousal, that also introduce many new family
disputes. India has of late been experiencing large numbers of people of other countries coming in
and establishing themselves in India. A new area of specialization has therefore arisen due to cross-
border family connections in the territory of family law claims, new problems and new ways of
addressing these problems. Such problems mostly do not have an existing solution as these
problems have resonated only in India for the last decade or the last two decades at best. This leads
to a new Unique Expectation for each of these cases, based on however the case is designed. Child
custody cases may also be some of the most difficult family law cases. Child custody cases may
not be as packed with animosity as those that belong to criminal law, however, when it is held in
the international level it can indeed be very intense and very tiring for both parties and the lawyers
involved.
 Anything that is labeled as Indian is synonymous with innovative and yes the Indian Judicial
system is no exception but remember it even takes years sometimes to provide a verdict for these
cases. Even though these overseas child custody disputes are for the most part controlled by the
state legislation and federal law it is often challenging to understand what country has the authority
over them and what laws must be followed.
Two obvious questions that can be raised here are –
 The next question can arise what country is going to have jurisdiction in the case when one
parent has moved the child to another state?
 But what if an international custody dispute really exists in the picture?
These are very delicate child custody litigations and yet they require strong foundation to address
the issue.
Finally, And this is very terrible when a marriage is dissolved, and the couple separates, the
most affected person is the child of that marriage. In this case, it is has been established that the
Indian Law is different and positive as it takes into consideration of the welfare of the child when
tendering over the responsibility of child custody to either parent.
The elements of a child’s welfare consist of the following:-
 The ethical upbringing of the child
 Good education
 Self-keeping of the child
 The economic well-being of the guardian
The mother and father of the child, both, have an equal right towards the custody of the child. The
question is – who gets the custody of the child. This is decided upon by the court.

UNDERSTANDING CHILD CUSTODY

The term “Child Custody”, in literal terms, refers to the hand-on legal relationship between a parent
and child. Custody includes the parents –
 Right to raise
 Care for the child
 Make all decisions regarding the child involving healthcare, education, and religious
upbringing.
All of these factors become problematic when couples make decisions about separating or
divorcing. In custody and upbringing disputes, the court intervenes, and the court makes a final
determination on where the child will be living, or who will have been granted legal custody of
the child.

LEGAL DEFINITION: A decision by the Court that clearly states which parent will have the
care, control, and custody of the child post-separation of the parents.
The custody may be either assigned to one parent, or to both the parents jointly.

Types of Child Custody arrangements available in India –

1. Physical Custody
2. Joint Custody
3. Legal Custody
Whichever custody is best suited in each case, is given.

CUSTODY OF A CHILD IN CASE OF OVERSEAS DISPUTE

Overseas Child Custody relationship disputes are much more complex due to combined
family laws of different countries. Every country, every continent has its own laws concerning the
same but the most accepted international treaty so far is The Hague Convention, 1980. All remedies
are also stated in the convention. Until now, 96 members are participating signatory countries of
the specified Hague convention.
Any country that is a signee to this convention has to observe all the rules and regulations and
all laws which are provided for in this convention. Normally, when parents separate or divorce,
there is always lasting constant struggle of custody. A custody battle may even be the time that one
of the biological parents attempts to take a child out of their home country, and move/shifting to a
foreign country. In simple terms, under the Convention, one can also say that removal of a child is
also improper if a child was a resident in another signatory country before the removal.
While some other countries will often work under different legal protocols as regards the
same. Sometimes it does, that depends on the requirements of the particular jurisdiction.
 The Indian Courts over the recent past have been hearing a number of cases related to
disagreements surrounding international child custody. These often come about due to global
business and employment chances hence there is a rising trend of these disputes.
After the parents have separated, there are some questions that concern the custody of a
child, and it is more difficult if it is an overseas case. It is, however, for the court to determine
which party should be granted custody for the child, and what kind of custody to be granted.
Overseas disputes are one of the problems that is faced in jurisdiction The jurisdiction is
one major problem that is encountered during Overseas disputes.

DETERMINATION OF JURISDICTION
Child Custody Jurisdiction – This means the legal power of a Court to hear and determine a case.
 The Court must have Child Custody Jurisdiction before it can decide or hear a case relating
to it.
 Child Custody Jurisdiction has been difficult to decide for many years, which has caused
conflicts between many States and sometimes even federal law.
 Today, ‘Uniform Child Jurisdiction and Enforcement Act’ (UCCJEA) has been adopted by
most States now.
 This act was written in order to resolve child custody issues and give custody jurisdiction
to the home state of a child.
But apart from all that I’ve mentioned above, jurisdiction can also shift when it comes to
matters of child custody. As a rule, the first court which hears a child-support case and issues
related to custody makes all custody decisions for the child also later on. However, in some cases,
it may change at some point in time in the future either through the court’s decision or under
pressure from other legal bodies. This could be as a result of other reasons such as the family
relocating to a different state entirely then the home state loses jurisdiction on the family. As a rule,
two states cannot have exclusive jurisdiction of child custody within the same case.
However, if a child is at risk right now, the court of all fifty states can grant a preliminary order.
It’s for the best interest of the child protecting the child and for the wellbeing of the child as well.
The court supervises the care of the child until the case is transferred to a new court, in this case a
court that is in charge of full child custody.
 Jurisdiction issues are in genuinely confusing and problematic, and it is actually only a child
custody lawyer who can really assist and ensure that a case is in proper area.

REMEDIES AVAILABLE WHEN THE CHILD IS TAKEN WRONGFULLY

But as social horizons expanded, and people and cultures, and nationalities started blending,
there are unprecedented troubles as well whenever issues are here. This is one such problem.
Wrongfully Taking a child is legally known as Child Abduction/Child Removal.
In simple terms, this means a parent, or any other member of the child’s family, flees the
country with the child. They are mostly undertaken by either of the parents with a view of reducing
the interaction of the other parent with your child. The parent flees with the child in an attempt
that denies the other parent permission, this is commonly referred to as child removal or
international child abduction.

I. Remedies
 Section 3 of the Hague Convention of 1980
The Section reads that the removal or retention of a child is considered wrongful where –

1. it is in breach of rights of custody attributed to a person, an institution or any other body,

either jointly or alone, under the law of the State in which the child was habitually resident
immediately before the removal or retention
2. at the time of removal or retention those rights were actually exercised, either jointly or
alone, or would have been so exercised but for the removal or retention.

This is a measure available to all countries that are party to the Hague Convention on the Civil
Aspects of International Child Abduction. As India has not ratified this convention, it doesn’t
follow this act.
 II. Indian Perspective
 The Constitutional Writ of Habeas Corpus under Article 2261 as well as Article 322 of the
Constitution of India are very frequently used in India by the parent against the spouse who
allegedly took away the kid to India.
 In India recourse can also be claimed under the provision of the Hindu Minority and
Guardianship Act 1956. This has extra-territorial operation by seeking for custody of their
own child.
In the case Kulwinder Dhaliwal v. In Punjab State vs. Monica (2013),3 which was an international
child abduction case that was exclusively concerning post-separation access to a child, the court
upheld the Ontario Superior Court of Justice on spe Habeas Corpus. The court decreed that custody
of the said minors be with the petitioner and subsequently, the children were ordered to be turned
over to the petitioner and was granted leave to take the children to Canada.

Likewise in Vikram Vir Vohra v. Shalini Bhalla (2010)4 also opined that the child custody orders
can easily be changes for the benefit of the child and the consideration that is given paramount
importance is the best interest of the child. The Supreme Court allowed the mother of the child to
take the son, who was 10 years old, to Australia as the child wanted to stay with the mother. In the
following case the best interest of the child was considered an overriding factor here.

Gurmeet Kaur Batth v. In the case of State of Punjab (2009)5 the High Court found it legal to
exercise the jurisdiction vested in article 226 of the Constitution of India through the Writ of
Habeas Corpus in all matters that related to Inter-parental Child Abduction. This was relied upon
and enforced as well the earlier order of the Canadian Court, which was in favour of the mother
who was the petitioner.

RELOCATING A CHILD TO A FOREIGN COUNTRY

1. Nevertheless, in a number of instances both parents may choose to live in the same country.
2. However, through change in some circumstances, in many times one parent may decide to
move to another country, as a result of one factor or the other.

1
Article 226 Constitution of India 1956
2
Article 32 constitution of India 1956
3
2009 RCR CIVIL 1 224
4
CIVIL APPEAL NO.2704 OF 2010 (Arising out of SLP(C) No.19935/2009)
5
2010 SCC ONLINE P&H 6447
 3. The parent may also want to carry his/her child along whenever they are relocating to a
new place.
4. Of course, the Court, of any country for that matter, has to take into consideration, a number
of factors, necessary for the decision, to allow or not, the parent, to take the child, away
with him or her.
5. Some of other factor that the Court balances include whether or not the country in question
is party to the Hague Convention.
6. One factor also includes whether or not a foreign jurisdiction can even implement any
existing custody orders.
7. Since the issue of custody is very sensitive, the main factor that is likely to prevail with the
Court will be impact that the proposed relocation is likely to have on custody decisions.
8. Finally, the determining criterion whether one parent should be allowed to take the child to
another country is whether or not it will be in the best interest of the child.
9. This quite often occurs in all relocating child custody cases, which involve moving to
another state of the foreign territory.

RELEVEANT PROVISION AND LAWS ACROSS GLOBE

THE HAGUE CONVENSION

There is Hague convention on civil aspects of child abduction which was entered into on 25th
October 1980 which took effect on 1st December 1983. As for now, the Convention has 75
contracting nations to it, however, one must mention that India is not among them. This is the topic
of debate regarding which much has been said on whether India has to be a signatory to it in today’s
world or not. Further from practical experiences, it can be said that no principles of the Convention
are admissible in India.

HIGHLIGHTS OF THE CONVENTION

1. The means by which the wrongly evacuated child or one who is in contracting can arrive fast to
assemble its nation of ‘permanent legal residence’ is assured by the Convention.

2. That it shall be agreed that all laws, that all privileges of care, etc. of all Contracting States, are
regarded and considered in the other Contracting States.
3. The Convention also reconstructs the existing conditions by putting back the child into the nation
of ‘continuing cohabitation’.

4. Article 12 of the Hague Convention clearly spells out the circumstances between the parties of
the Convention in which a request can be made for the return of a minor child.

PROVISIONS IN INDIA

1. India is not party to the Hague Convention as a country cannot become a signatory of the
Convention until it has a residential law in place.
2. As such, there is neither any specific Indian enactment, bearing with it some provisions
regarding the matters relating to abduction or removal of a child to and from or in India.
3. Law Commission of India has also submitted the 218th report on – “The need to consent
to ‘The Hague Convention on The Civil Aspects of International Child Abduction 1980’ on
30-3-2009.
4. Hasty treatment in this instance is to file a Petition for Writ of Habeus Corpus in the High
Court or Supreme Court. J &K Guardian and Wards Act and the Hindu Minority and
Guardianship Act these are also the legal way in any matters pertaining to the child custody
cases.

RECENT DEVELOPMENT IN INDIA

1. On June 22, 2016, the MCWD posted a proposition to introduce the draft of the ‘Civil Aspects
of International Child Abduction Bill, 2016’ at its website. It was considered that this was
constituted in order to have an empowering enactment in India before the up gradation of The
Hague Convention.

2. Besides, the Supreme Court has served a notice to the Central Government that states a request.
The task is to search for rules for preventing IPCA international parental child abduction. It was
issued on the 1st December 2017.

3. Another notice in the said petition was also given by NGO “Bring Your Kids Home” by the
bench comprising Justices Rohinton Fali Nariman & Navin Sinha.
4. In more recent years, there has also emerged many NGO’S and other organizations that have
also begun operations in this line. They believe that through training, activism and support, child
abduction laws etc., will be rock solid changed. A few examples of these associations are – “Cry”:
An organization aimed at making it possible for all the children not to be involved in any unsafe
impacts, mishandle or any such kind of act. Also, ‘’Bring Your Kids Home’ ’ is also an awareness
programe which was initiated by the parents who left in India with their kids having been abducted
to an unknown country by the other parent.

LANDMARK JUDGEMENTS

Prateek Gupta v Shilpi Gupta & ors 6

In this case, the Supreme Court delivered an important judgment relating to custody of a child who
was born in the U.S., but was brought by the father to India. Hearing, the appellant (Father) filed
the following appeal at the Supreme Court of the said High Court order. Because of problems
arising from marital discord, the couple split up, and the father moved back to India although both
the children remained in the United States with the respondent (the mother). The father, however,
used to visit them occasionally to see his sons. On one such occasion, he allegedly took along with
him, one son, Aadvik. This was done by foul play thereafter the father vessels back to India with
the child without even informing let alone getting consent of the mother. Angry by this, the mother
then filed a case in Juvenile and Domestic Relations Court Fairfax County in the US. She then
obtained temporary physical possession of the child and the father was ordered to return the child
to the Commonwealth of Virginia and to the respondent. The respondent then sought to enlist the
aid of the high court of Delhi in this jurisdiction writ pursuant to the entrustment of the high court
of Delhi, he prayed for the grant of the Habeas Corpus to him against the appellant to custody the
little child with the appellant as being unlawful and illegal. Nevertheless, the High Court, besides
ordering the appellant to cease visiting the child, also ordered the appellant to turn over the custody
of the child to the mother.

6
CRIMINAL APPEAL NO. 968 OF 2017
Smt Surindar Kaur Sandhu v. Harbax Singh Sandhu 7

The issue that related in this case was on The Jurisdiction of Court in Child custody case. In this
case the minor son was a British Citizen while the parents were Indian Citizens. Interpretation of
Section 6 of The Hindu Minority and Guardianship Act, 1956 has been dealt by the Court in
relation to custody of the child. The Court found that this Act conferred the status of the natural
guardian of the minor son on the father. However, in the same regard it has been considered that
the said provision cannot dominate the thought process as to what may be in the best of interest of
the minor. In addition, the contemporary conflict of laws acknowledges the fact that, and also
prefers the jurisdiction of the State that has the closest connection to the matter to be in power. The
honorable court also announced that the right Jurisdiction of this case is not India.

CONCLUSION

To sum up we can state that there in no matter a country you have an issue in and whether that
country is a member of the hague convention, time is the essence. From the case of the mother, it
is very important always to consult the lawyer on time or to act on your rights as soon as is possible.
It is now also observed with the emergence of the said scenario that there is no such pattern of
decisions uniform in India to decide the custody issues in relation to international complicity in
dispute resolution of child custody. The area of this particular law is still in its nascent stage in
India. However, a firm law is also necessary, which the judiciary has been performing
withdrawable actions addressing such cases. India has not signed the Hague convention and thus
is also lacking a lot behind. There should be a better and permanent legal regime dealing with
overseas custody cases in India. The first of these can also be the ratification of the Hague
Convention or entering into bilateral treaties with the other countries that are not party to the in
this respect. These actions will some-what give India a strong law in these overseas disputes though
not completely waterproof.

****************************

7
1984 AIR 1224