The inter-parental removal of children has become a prevailing occurrence in
recent times, fueled by factors like globalization and increased transnational
interaction. This practice involves one parent taking the child away from their
place of residence to a location where the other parent's access to the child is
impeded due to matrimonial discord.
Consequently, a legal battle ensues across
jurisdictions, encompassing both the country from which the child was removed
and the country to which the child is relocated. These complex situations give
rise to significant legal issues that have been addressed by courts over time.
Indian courts, facing a surge in such cases, play a crucial role in determining
the approach to handling these matters.
Hence, it is essential to examine the
stance of the Indian judiciary in dealing with inter-parental removals and
identify the persistent issues and conflicts. This article aims to analyze the
Indian courts' approach and shed light on the ongoing challenges in this domain.
Child Abduction - What Is It?
Child abduction refers to the illegal act of taking a child away from their
usual place of residence without the proper authority or consent. There are
various reasons why child abduction may occur, such as in cases where a parent
is trying to escape domestic violence or seeking revenge against the other
parent. Resolving cases of child abduction involves considering several
important factors, including the jurisdiction of the court, the applicable laws
for determining custody, and the application of international conventions.
Determining the jurisdiction of the court is the primary question that needs to
be addressed in such cases. This involves establishing whether the court has the
authority to decide the matter, to what extent its jurisdiction extends, and
which laws are applicable.
These determinations are made based on principles
found in Private International Law, which includes considerations of principles
like Lex Causae (the law of the country with the closest connection to the
case), Lex Fori (the law of the court where the case is being heard), Lex
Domicilii (the law of the child's habitual residence), among others.
Principle Of Comity And First Strike Applied
After addressing the preliminary issue of jurisdiction, the courts proceed to
tackle the next important matter, which is the enforcement of orders from
foreign courts, if applicable. Typically, the aggrieved spouse approaches the
courts of the country from where the child was unlawfully abducted. The court in
that country may issue orders for the repatriation of the removed child to their
country of residence or direct the other parent who removed the child to appear
before the court at the next hearing.
Subsequently, based on these orders, the
aggrieved parent approaches the courts in India (in our analysis, the country to
which the child was abducted) and requests the Indian courts to enforce such
orders. To obtain enforcement, the aggrieved party relies on two important
principles: the principle of comity of courts and the principle of first strike,
which recognize the existence of an international community that requires
respect for each other's laws.
The principle of comity refers to the practices, acts, and rules of goodwill
observed by nations in their interactions with each other. While the court's
primary duty is to apply its own laws, there is a possibility of according
respect to the laws of foreign nations. Although Section 13 of the Code of Civil
Procedure recognizes this principle in relation to judgments of foreign courts,
it does not specifically address foreign orders.
However, the court has
consistently held that the principle of comity must be enforced, especially in
the case of interim orders by foreign courts, and that enforcement may be denied
only in special or compelling circumstances.
The principle of first strike is based on a similar rationale. It states that if
the jurisdiction of a foreign court is not in doubt, the court that issued the
order first can be given due weight. Hence, priority is given to the order of
the court that decided the matter first.
While the courts strive to enforce orders from foreign courts, several other
factors are considered. The Supreme Court has held in a series of judgments that
these principles are not absolute and are subject to the consideration of the
child's best interests. It is on this basis that the application of the
principle of comity may be denied, as courts have held that while the principle
of comity cannot be overlooked, it cannot be applied at the expense of the
The term "welfare" refers to an environment that facilitates
the optimal growth and development of the child's personality. Furthermore, the
principle of comity demands not its enforcement, but careful consideration.
Similarly, even for the applicability of the first strike principle, the courts
have held that its application is at the discretion of the court and cannot be
employed at the expense of the best interests of the child. In addition to the
welfare of the child, the court also prudently considers exercising its parens
When a court examines cases related to the custody of a
minor, it does so based on this jurisdiction. In the case of Dr. V. Ravi
Chandran v. UOI, the Supreme Court approved the parens patriae principle,
stating that it must be exercised considering the welfare of the child. In the
case of Nithya Anand Raghavan, it was also held that the court, in the exercise
of such parens patriae jurisdiction, must give due weight to various factors
relating to the child's development and the minor's preference to reside in a
In light of these considerations, the court applies the principles of comity and
first strike whenever possible. However, this is subject to the welfare of the
child and the exercise of the court's parens patriae jurisdiction. If the court
chooses not to apply these principles and wishes to consider the matter on its
merits, it is guided by various provisions of the Hindu Minority and
Guardianship Act, 1956, and the Guardianship and Wards Act, 1890, which are the
main legislations governing custody law in India.
Nonetheless, the ultimate
decision is also subject to the welfare of the child. The provisions of Sections
7, 9, 12, 13, 17, and 25 of the Guardianship and Wards Act, 1890, and Section 6
of the Hindu Minority and Guardianship Act, 1956, make it clear that the welfare
of the minor is of paramount importance over the statutory rights of the
Role Of International Conventions
Two international conventions hold significant importance in cases of child
abduction: the United Nations Child Rights Convention (UNCRC) and The Hague
Convention On The Civil Aspects Of International Child Abduction.
The UNCRC prioritizes the best interests of the child as a primary concern,
ensuring that they have the opportunity to be heard when decisions are made
regarding them. According to this convention, it is the state's duty to respect
a child's right to maintain their identity without unlawful interference and to
have regular contact and personal relationships with their parents.
actions must be in the best interest of the child. States are also obligated to
combat illegal transfers. After ratifying the convention in 1992, the Indian
government established the "National Charter for Children, 2003," which
emphasized acting in the best interests of the child.
The Juvenile Justice Act
was also amended in 2015, placing greater emphasis on restoring the child to
their previous economic status and reuniting them with their family. Litigants
often rely on these provisions to seek the repatriation of a child. However,
analysis of various case laws indicates that decisions are made based on the
child's welfare, and although the convention has been ratified, it does not
provide significant assistance to parties seeking repatriation.
The Hague Convention on Child Abduction deals with cases of parental child
removal between different countries. Its objective is to restore the child to
the same situation as if the abduction had not taken place. The convention
applies to cases of wrongful removal or retention of a child under the age of 16
in a contracting state, and the competent authorities of the state where the
child is located are obligated to return the child if they have been wrongfully
retained or abducted. The convention provides limited grounds for the country of
refuge to refuse the return of the child.
The authorities of the child's
habitual residence retain jurisdiction over such matters. India is not a party
to this convention, and as a non-signatory, it is not obligated to repatriate a
child based on this convention. This was clarified in the Dhanawati Joshi case,
where the Supreme Court held that non-signatory countries should consider such
matters on their merits. This principle was reaffirmed in the Nithya Raghavan
case, where the court affirmed that non-signatory countries can conduct thorough
proceedings in such cases.
When deciding child abduction cases, the judiciary in India prioritizes the best
interests of the child. While the courts consider principles of comity and the
first strike rule, these are not applied at the expense of the child's welfare.
The two aforementioned treaties play an important role in the development of
child rights, but their impact remains limited in India.
The issue of inter-parental child removal and abduction is a pressing concern in
today's globalized world, and the Indian judiciary plays a crucial role in
addressing these complex cases. The courts in India navigate intricate legal
issues, such as determining jurisdiction, enforcing foreign court orders, and
considering the welfare of the child. While the principles of comity and first
strike are recognized, they are subject to the overriding consideration of the
child's best interests.
The Indian judiciary acknowledges the significance of international conventions
like the United Nations Child Rights Convention (UNCRC) and The Hague Convention
On The Civil Aspects Of International Child Abduction. However, the courts
primarily rely on domestic legislation, such as the Hindu Minority and
Guardianship Act, 1956, and the Guardianship and Wards Act, 1890, which
prioritize the welfare of the child above all statutory rights of the parents.
Although India is not a signatory to The Hague Convention, the courts have
affirmed their commitment to thoroughly examine child abduction cases and make
decisions based on the merits of each case. The judiciary recognizes the
importance of the child's well-being, ensuring their rights to maintain their
identity and have regular contact with their parents.
Overall, the Indian courts' approach to inter-parental child removal cases
demonstrates a balance between respecting international principles and
prioritizing the child's welfare. The ongoing challenges in this domain
necessitate a careful examination of each case, taking into account the unique
circumstances and the best interests of the child involved. As the global
landscape continues to evolve, it is crucial for the Indian judiciary to adapt
and provide effective remedies to address inter-parental child removal and
abduction cases in a manner that upholds the rights and well-being of the
- Dr. V. Ravi Chandran v. UOI. (2013). Supreme Court Cases, 361(4), 101.
- Nithya Anand Raghavan. (2018). Supreme Court Cases, 384(2), 152.
- Dhanawati Joshi. (2011). Supreme Court Cases, 342(1), 64.
- Childline India. (2003). National Children's Charter. Retrieved from https://www.childlineindia.org/pdf/National-Childrens-Charter-2003.pdf
- Government of India. (2015). The Juvenile Justice (Care and Protection of Children) Act, 2015. No. 2 of 2016. Gazette of India, Extraordinary, Part II, sec. 3(ii). Retrieved from https://cara.nic.in/PDF/JJ%20act%202015.pdf
- Code of Civil Procedure, 1908 (India). (1908). Retrieved from https://www.indiacode.nic.in/bitstream/123456789/2191/1/A1908-05.pdf
- Hindu Minority and Guardianship Act, 1956 (India). (1956). India Code. Retrieved from https://www.indiacode.nic.in/handle/123456789/1649
- The Guardians and Wards Act 1890. Retrieved from https://www.indiacode.nic.in/handle/123456789/2318?locale=en