MALHOTRA & MALHOTRA ASSOCIATES

International Lawyers
ANIL MALHOTRA
L.L.B.(PUNJAB,L.L.M. (LONDON)

BUNGALOW 584,SECTOR 16-D

CHANDIGARH-160015 INDIA
TELEPHONE: 91-172-2771443

RANJIT MALHOTRA
L.L.B.(PUNJAB,L.L.M. (LONDON)

91-172-2542026
91-172-2542443
EMAIL:malhotraranjitindia@rediffmail.com
anilmalhotra1960@gmail.com

PAPER PRESENTED AT THE FOURTH INTERNATIONAL CONFERENCE ON

PRIVATE INTERNATIONAL LAW, ORGANISED BY THE INDIAN SOCIETY OF LAW
AT NEW DELHI ON 2-3 DECEMBER 2006.

CONFLICT OF JURISDICTIONS IN INTERPARENTAL CHILD CUSTODY

DISPUTES THE INDIAN EXPERIENCE
By *Anil Malhotra and Ranjit Malhotra
Malhotra & Malhotra Associates, Chandigarh, India
CONTENTS
I) INTRODUCTION
II) DEFINITION OF CHILD REMOVAL
III) THE INDIAN EXAMPLE
IV) RECENT DECISIONS
V) THE INDIAN PERSPECTIVE
VI) SOLUTIONS AND REMEDIES
VII) CONCLUSION

CONFLICT OF JURISDICTIONS IN INTERPARENTAL CHILD CUSTODY

DISPUTES THE INDIAN EXPERIENCE
By *Anil Malhotra and Ranjit Malhotra
Malhotra & Malhotra Associates, Chandigarh, India
I) INTRODUCTION
The world is a far smaller place now than it was a decade ago. Inter country and
inter continental travel is easier and more affordable than it has ever been. The
corollary to this is an increase in relationships between individuals of different
nationalities and from different cultural backgrounds. Logically, the world in
which we and our children live has grown immensely complex. It is filled with
opportunities and risks. International mobility, opening up of borders, cross
border migration and dismantling of inter cultural taboos have all the positive
traits but are fraught with a new set of risks for children caught up in cross border
situations. Caught in cross fire of broken relationships with ensuing disputes
over custody and relocation, the hazards of international abduction loom large
over the chronic problems of maintaining access or contact internationally with
the uphill struggle of securing cross frontier child support. In a population of
over a billion Indians, 25 million are non-resident Indians who by migrating to
different jurisdictions have generated a new crop of spousal and family disputes.
Migration urges travel and borders divide non-resident Indians who settle in
foreign lands. Foreigners too venture into India for permanent abode. Cross
border family relationships arising from such exchange has carved out a new
niche in the jurisdiction of family law disputes. Such problems have no
readymade solutions in the conventional legislations prevailing within the legal
system in India. The net result : the innovative judicial system in India with its
dynamic jurisprudence when invoked provides a tailor made answer for every
individual case. But then, this does not provide a consistent, uniform and
universal remedy to be adhered to in an international perspective. What then is
the answer in a highly sensitive area of family law disputes involving conflict of
jurisdictions in inter parental child custody cases when children are removed to
India in violation of interparental rights or infringement of foreign court orders.
II) DEFINITION OF CHILD REMOVAL
Families with connections to more than one country face unique problems if their
relationship breaks down. The human reaction in this already difficult time is
often to return to ones family and country of origin with the children of the
relationship. If this is done without the approval of the other parent or permission
from a Court, a parent taking children from one country to another may, whether
inadvertently or not, be committing child removal or inter parental child abduction.
This concept is not clearly defined in any relevant legislation. As a matter of

convention, it has come to mean the removal of a child from the care of the
person with whom the child normally lives.
A broader definition encompasses the removal of a child from his / her
environment, where the removal interferes with parental rights or right to contact.
Removal in this context refers to removal by parents or members of the extended
family. It does not include independent removal by strangers. The Convention on
the Civil Aspects of International Child Abduction signed at the Hague on
October 25, 1980 with 75 contracting countries today as parties from all regions
of the globe, however defines removal or detention wrongful in the following
words.
Article 3
The removal or the retention of a child is to be considered wrongful where:
(a)
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; and
(b)
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.
The rights of custody mentioned in sub-paragraph (a) above, may arise in
particular by operation of law or by reason of a judicial or administrative decision,
or by reason of an agreement having legal effect under the law of that State.
Child removal does not find any specific definition in the Indian statute
books and since India is not a signatory to the Hague Convention, there is no
parallel Indian legislation enacted to give the force of law to the Hague
Convention. Hence, in India all interpretations of the concept of child removal
are based on judicial innovation in precedents of case law decided by Indian
courts in disputes between litigating parents of Indian and / or foreign origin.
III) THE INDIAN EXAMPLE
India not being a signatory to the Hague Convention of 1980 on the Civil Aspects
of International Child Abduction, questions regarding the custody of such children
are now considered by the Indian Courts on the merits of each case bearing the
welfare of the child to be of paramount importance while considering the order
made by the foreign Court to be only one of the relevant factors in such decision.
The High Courts and the Supreme Court in India entertain petitions for issuance
of a writ of habeas corpus for securing the custody of the minor at the behest of a
parent who lands on Indian soil alleging violation of a foreign Court custody order

or seeks the return of children to the country of their parent jurisdiction. Invoking
of this judicial remedy provides the quickest and most effective speedy solution.
A quick summary of Indian law laying down the position is as hereunder :
i)
Surinder Kaur Vs. Harbax Singh Sandhu 1984 HLR 780 SC holding
that the provisions of the Hindu Minority and Guardianship Act, 1956 cannot
supercede the paramount consideration as what is conducive to the welfare of
the child
ii)
Elizabeth Dinshaw Vs. Arvand M. Dinshaw AIR 1987 SC 3 upholding
the right of a foreigner mother to directly invoke the jurisdiction of the Supreme
Court to seek the custody of a minor child from his father on the principle that the
matter is to be decided not on the considerations of the legal rights of the parties
but on the sole and predominant criterion of the best interest of the minor child.
iii)
Kuldeep Sidhu Vs. Chanan Singh AIR 1989 P&H 103 wherein in a
criminal writ petition it was held that the welfare of the children who were
Canadian citizens would override any consented custody arrangement and the
children have a right to be brought up in the culture and environment of the
country of their birth.
iv)
Atya Shamim Vs. Deputy Commissioner / Collector Delhi AIR 1999
J&K 140 wherein a habeas corpus petition by a person who was not a citizen of
India was held to be maintainable to secure the custody of a minor
v)
Dhanwanti Joshi Vs. Madhav Unde 1998 (1) SCC 112 wherein it was
held that the Court in the country to which the child is removed will consider the
question on merits bearing the welfare of the child as of paramount importance
and consider the order of the Foreign Court as only a factor to be taken into
consideration unless the Court thinks it fit to exercise summary jurisdiction in the
interest of the child and that its prompt return is for the childs welfare.
vi)
Paul Mohinder Gahum Vs. State of NCT of Delhi 2005 (1) HLR 428,
upholding the maintainability of a habeas corpus petition, the Honble High Court
held that the orders passed by foreign Courts granting custody take a back seat
in preference to what lies in the best interest of the minor rather than what a
foreign court has directed.
vii)
Eugenia Archetti Abdullah Vs. State of Kerala HLR 2005 (1) (Ker) 34
upholding the right of the US citizen petitioner mother in a habeas corpus
petition, the custody of the children was handed over to the mother after holding
that the High Court can exercise jurisdiction under Article 226.

viii)
Veena Kapoor Vs Varinder Kumar Kapoor AIR 1982 SC 792 holding
that in matters concerning the custody of minor children in a habeas corpus
petition where parents are separated, the paramount consideration is the welfare
of the minor and not the legal rights of the respective parties.
ix)
Poonam Datta Vs. Krishanlal Datta and others AIR 1989 SC 401, the
Apex Court hearing an appeal against a decision by the High Court in a habeas
corpus petition, directed an arrangement to be maintained until either parties
went in for an appropriate guardianship proceeding.
x)
Manju Tiwari Vs. Rajendra Tiwari AIR 1990 SC 1156, the Apex Court
in a habeas corpus petition directed that the custody of the child be given to the
mother with visitation rights to the father who was at liberty to apply for custody of
the child in appropriate guardianship proceeding.
xi)
Kumar V Jahgirdar Vs. Chethana Ramatheertha 2004 (1) HLR SC
468, the Apex Court upholding the decision of the High Court came to the
conclusion that a female child of growing age needs company more of her
mother compared to the father and remarriage of the mother is not a
disqualification in safeguarding interest of the child.
xii)
In Radha @ Parimala Vs. N. Rangappa 2004 (2) HLR 416 Kar., it was
held that in entrusting the custody of a minor child, the Court should take into
account all relevant circumstances including social and religious environment of
the family, the quality of immediate neighbourhood and locality in which a
particular parent resides, financial position of the parties, education facilities for
the minor concerned, the controlling consideration governing the custody of the
minor children is the welfare of the children and not the rights of party as welfare
of the child is the paramount factor.
Therefore, from a overall reading of the above matters decided by different Indian
Courts, it may be said that irrespective of any Foreign Court custody order,
Indian Courts generally adjudicate matters of child removal by considering the
best interest of the child as a paramount consideration for settling such issues.
IV) RECENT DECISIONS
a) In a judgment dated March 3, 2006 of the High Court of Bombay at Goa ,
reported as Mandy Jane Collins Vs James Michael Collins , 2006(2) Hindu
Law Reporter 446, between a 62 years old American father and 39 years old
British mother resident in Ireland and who were litigating over the custody of their
8 year old minor daughter said to be illegally detained in Goa by the father, the
Court declining the issuance of a writ of habeas corpus held that the parties
could pursue their remedies in normal civil proceedings in Goa. The Court
dismissing the mothers plea for custody concluded that the question of

permitting the child to be taken to Ireland without first adjudicating upon the rival
contentions of the parents in normal civil proceedings in Goa is not possible and
directed that status quo be observed. This in effect means that the 8 year old
minor girl continues to live in Goa without her mother or any other female family
member in the fathers house. In a challenge to this decision by the mother
before the Supreme Court of India, the appeal was dismissed on August 21,
2006, leaving it open to the parties to move the appropriate forum for the custody
of the child, which if done, was directed by the Supreme Court to be decided
within a period of three months with earlier visitation rights continuing to the
mother.
b) In another matter reported as Ranbir Singh Vs Satinder Kaur Mann, 2006
(3), Punjab Law Reporter 571, The Punjab and Haryana High Court declined
to issue a Writ of Habeas Corpus to the petitioner father residing in Malaysia who
was seeking release of his five year old son and three year old daughter from
their mothers custody in India . The High Court of Malaya at Kuala Lumpur had
held that the petitioner was entitled to the legal guardianship of the said minor
children. However, The High Court in India declining to enforce the foreign
judgment of the Malaysian High Court, held that the matter can be reagitated
before the appropriate forum with regard to the custody of the children on the
basis of evidence to be adduced by parties. The Habeas Corpus petition was
dismissed with the observation that it would be open to either parties to move for
custody of the minor children under appropriate law before an appropriate forum.
V) THE INDIAN PERSPECTIVE
With increasing cross border migration, the Indian jurisdiction over the years has
witnessed a large number of hotly contested illegal detention petitions filed in
High Courts all over India both by foreign or non resident Indian parents alleging
interparental child removal from foreign jurisdictions. Till a few years ago, as per
the law settled by the Supreme Court of India, the foreign children born to one or
both parents of Indian origin were normally returned to the country of their
nationality and residence before removal. However, recent judgments mentioned
above have shown that the Indian Courts now consider a foreign Court order as
only one of the factors in deciding interparental child custody disputes and
adjudicate upon the matter afresh on the principle of considering the best interest
of the child as of paramount importance. But then, can the best interests of a
foreign child born to foreign or non resident Indian parents be best decided on
local parameters and as per local conditions by an Indian Court in an Indian
jurisdiction. Would this be in the best interest of the removed child. Would it be
appropriate to reward the erring parent with interim custody till the matter is
adjudicated in regular custody proceedings in a Custody Court. Time factor,
which is mostly essence of the matter swings the scale in such decisions.

VI) SOLUTIONS AND REMEDIES

The Hague Convention on Civil Aspects of International Child Abduction came
into force on December 1, 1983 and has now 75 contracting nations to it. The
Convention secures the prompt return of children wrongfully removed to or
retained in any Contracting State and ensures the rights of custody and access
under the laws of such Contracting States. India unfortunately, is not a signatory
to the Hague Convention and from practical experience it can be stated that the
principles laid down in the Convention are not applicable in India.
The above situation promotes and encourages child removal to India by an
offending parent and deprives the childs custody rights to be determined by the
laws of the country where the child was normally resident. It also diverts the best
interest of the child as the litigation in India gets converted into a fight of superior
rights of parents whereas the real issue of the welfare of the child becomes
subservient and subordinate. Practical experience also shows that foreign courts
now largely disallow children from overseas jurisdictions to be brought to India
apprehending that children will not be returned to the country of their residence.
Instances are abound from US and UK where Non Resident Indian parents
desperately seek advice and opinion on what to do as Courts of Law in these
jurisdictions deny permission for children to be brought to India in child custody
dispute. This perspective of conflict of jurisdictions needs immediate resolution.
VII) CONCLUSION
In the totality of the emerging scenario, it is now practically seen that in the
absence of any Indian legislation on the subject, there is no uniform pattern of
decisions to resolve issues of custody and contact which arise when parents are
separated and live in different countries. The recent decisions quoted above and
another child custody dispute agitated in the Supreme Court of India where a US
Court declined the return of children to India despite the Supreme Courts
directions shows that a time has now come for some international perspective in
this regard. Situations also exist that whilst the parent in India moves the Court
and seeks Habeas Corpus relief, the parent with the child abroad moves the
foreign Court there and gets a restraint order. Both parents get equipped with
judicial orders and the bi-continental custody battle picks up in two jurisdictions.
In January 2005, the British government appointed Lord Justice Thorpe as Head
of International Family Law in the UK judicial system for promoting development
of international instruments and conventions in the field of family law with greater
International judicial collaboration. Pakistan has signed a Judicial protocol
between the President of the Family Division of the High Court of London and the
Chief Justice of the Supreme Court of Pakistan for cooperation between judicial
authorities of the two countries on such issues.

The Hague Conference guides are a wealth of information on the subject. India
has neither adapted to the same nor signed the convention. Though the
jurisdiction of the High Court as an exclusive remedy for release from illegal
detention in a writ of habeas corpus is not barred, but for a litigating parent from
a foreign jurisdiction to convince the Indian Court to exercise such an option is an
uphill task. It may be successful at times but now mostly it does not succeed.
Where then is the remedy. What is the solution. Who will resolve it. How will it
be done. Where are the answers. Who would provide them and when.
In the larger interest of children at risk, the conflict of jurisdiction of Courts must
take a back seat. It is therefore, the need of the hour that the Indian legislature
may consider enacting some legislation to protect the rights of the abducted child
to resolve the clash between the rule of domicile and the nationality rule. May
be, till this is done, the Supreme Court of India could well lay down some uniform
guidelines to be consistently followed in interparental child abduction from foreign
jurisdictions. India cannot be promoted as a haven for parking removed children.
*Authors Profiles
Anil Malhotra has been a practising Advocate at the Punjab and Haryana
High Court, Chandigarh, India since September 1983 and regularly appears
as Counsel in the Supreme Court of India at New Delhi and before other
Courts, Commissions, Boards, Tribunals within India.
He holds Bachelor of Science and Bachelor of Laws (Professional) degrees
from the Punjab University, Chandigarh, India. He attained his LLM degree
from the University of London, London in November 1985 and studied
Comparative Family Law at LSE and Law & Society in South Asia at SOAS.
He has also taught civil procedural laws and matrimonial remedies for six
years as a part-time lecturer at the Faculty of Laws, Panjab University,
Chandigarh, India. For over 20 years he has had extensive exposure in
handling civil, matrimonial, criminal and overseas litigation on behalf of
non-resident Indians residing abroad.
He is a principal author in the book titled Acting for Non-resident Indian
Clients, recently published by Jordan Publishing Limited at Bristol in U.K.
The book carries a foreword by Lord Slynn of Hadley and was released at
the House of Lords London, UK, on April 15, 2005.
He is also the Indian family law Correspondent for the International Family
Law journal published by Jordan Publishing Limited, Bristol. The author
has to his credit substantial published work in international legal journals.
He is also the Indian representative for Reunite Child Abduction Agency.

Ranjit Malhotra is a practising Advocate at the Punjab and Haryana High

Court, Chandigarh, India since September 1990. He obtained his LLM with
merit, specialising in immigration law and South Asian Family Law from
SOAS, University of London in 1993. He was the first Indian lawyer to be
awarded the Felix Scholarship to read for the LLM Degree at the School of
Oriental and African Studies, University of London. Mr. Malhotra is a
member of the IBA and regional representative for India of the Migration
and Nationality Law Committee of the IBA. He is also a member of
Immigration Law Practitioners Association, London, American Immigration
Lawyers Association, Reunite Child Abduction Agency in London, Indian
Council of Arbitration, the Inter Pacific Bar Association at Tokyo, and
Lawasia at Australia. The author frequently travels abroad to attend
international legal conferences. He has been appearing as an expert
witness on Indian family law issues in the courts in England.
The author to his credit also has substantial published work in
international legal journals. Their firm, Malhotra & Malhotra Associates, is
on the panel of lawyers for five major embassies in New Delhi, including
the British High Commission, American Embassy and German Embassy at
New Delhi.
They can be contacted at m a l h o t r a s u n i l i n d i a @ y a h o o . c o . i n ,
malhotraranjitindia@rediffmail.com and anilmalhotra1960@gmail.com