Private International Law

PRIVATE INTERNATIONAL LAW – CUSTODY OF CHILDREN/VISITATION RIGHTS, ENFORCEMENT OF FOREIGN DECREE THROUGH WRIT JURISDICTION

Jurisdictional issues and applicability of the correct domestic law and conflict of legal remedies in Indian courts viz-a-viz foreign courts have assumed greater importance in the recent past in view of the world becoming a global village.  The realm of Private International Law has assumed greater significance and dimensions with the spread of the Indian community across the globe in large numbers. Young and enterprising men and women desirous of career opportunities abroad, move on and relocate themselves for permanent settlement in foreign countries without any hesitation to satisfy their financial needs apart from enhancing their technical skills and intellectual content.  We, Indians are being appreciated across the globe for our adaptability to new language, community living and altogether new lifestyles.  While all these positives have come with the economic growth and the pursuit for excellence abroad in our younger generation, the most important aspects of our culture and value systems have received a true and genuine beating.  As a result in many cases pertaining to Indian spouses/couples settled abroad, we can notice incompatibility of temperament (not at an acceptable marginal level but at a very high level), intolerance to accept the changed life style of either of the partners and constant stress in the marital relationship of spouses/couples living abroad with or without children.  Constant stress and matrimonial discord, invariably leads one of the parties to seek redress within the legal system of the country which they have chosen to pursue their dreams.

In very many cases it is not uncommon to find either the husband or the wife or the live in partner or the spouse, to abscond from the foreign soil in order to escape from the legal clutches of the country where they chose to pursue their dreams.  While absconding from the foreign court’s jurisdiction in most cases we can observe that either one or more children of the couple are taken by the parent who absconds and a whole lot of proceedings are initiated in our country i.e. in India relying on the Guardian and Wards Act and other laws relating to family disputes in India.  The aggrieved person domiciled in the foreign country also resorts to getting remedies legally through such courts having jurisdiction to decide issues like custody, child care, protection of children etc. from the courts of the country of domicile.  Resultant outcome is passing of orders of different nature in both countries favoring either of them.  Most of the times both the spouses decide to remain ex-parte in the foreign jurisdiction and orders are being passed in the absence of either of them. 

The following case laws from the Hon’ble Supreme Court and other High Courts has stressed the need to redirect the party approaching Indian courts to their respective country of domicile for pursuing legal remedies such as custody of minor children in the absence of any orders being passed by foreign courts.  However if orders have already been passed by foreign courts the party residing in India where the wife or the husband with or without children are directed to pursue, contest and bring to finality the orders regarding custody of children in the foreign court which is the court of the country where the parties had domiciled foregoing their Indian citizenship.

1) Mrs. Isabell Singh V. Ram Sing and Anr, reported in AIR 1985 Raj 30, -  “I am thus satisfied that it would be in the welfare of both Joanna and Lisa if their custody is restored to the petitioner and she is allowed to take them to the United States of America. I would accordingly direct that the Respondent Ram Singh shall handover the custody of both Joanna and Lisa to the petitioner forthwith. The petitioner is entitled and is hereby authorized to take the children to the United States of America.”

2) Mrs. Elizabeth Dinsha -Vs- Arvand M. Dinshaw & Anr, reported in1987 (1) SCC 42 –   “As already observed by us, quite independently of this consideration, we have come to the firm conclusion that it will be in the best interests of the minor child that he should go back with his mother to the United States of America and continue there as a ward of the concerned court having jurisdiction in the State of Michigan.”

3) Dr. V. Ravi Chandran –Vs- Union of India & Ors., (2010) 1 SCC 174 – “However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the Jurisdiction of the Court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspect relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interest if the child.”

4) Mrs. Elizabeth Packiam & Another –Vs- State of Tamil Nadu,. CDJ 2013 MHC 3660,  - “Finding the petitioners have approached this court with utmost promptitude, that the minors were ordinarily residents of Australia, that no elaborate enquiry into the merits of the rival contentions is called for and it would be appropriate to allow the Courts of the Country of the minors natural habitat to decide upon custody and related issues this court allows this petition.”

“…………as the minors were not ordinarily resident in India and that it would be best to leave issues relating to their custody to Courts in their country of habitat, Australia.”

Both the parents are found to use minor children either one of them or all of them to some practical advantage in order to settle personal scores.  While doing so either of the parents are often involved in character assassination of their counter parts.  Prejudicing the tender mind of the minor children courts could cause havoc in the psyche of the young kids who are in the company of a single parent either the mother or the father.  Children are taught the worst things about their father or mother living in separation due to forced circumstances to tarnish the image of their counterpart and to boost and show that the parent with whom the child is currently living is the best in the world. To satisfy their personal egos, to wreck vengeance on the other partner, unmindful of the agonizing effect that is being etched on the delicate mind of the young child such acts are consciously pursued by none other than the parents.  Winning legal battles and teaching a lesson to the life partner takes centre stage and priority and the spouses are not afraid of cleaning up their savings to achieve the said goal. Some single parents are seen working overtime to make money for budgeting the legal expenses likely to be incurred in prosecuting and defending proceedings. Children also take undue advantage and increase their demands and requirements knowing fully well that certain requirements of theirs will be met if the parent with whom they are residing is made happy even by accusing the other parent.  Lot of emotional undesirable changes affecting the character of the child in the long run gets registered, nurtured and projected unknowingly. The words such as co-parenting, single mother, single father etc., have all gained significance due to the recent globalization and opening of career opportunities throughout the world. Courts have also started to consider foreign judgments as binding on parties and in all the above Supreme Court decisions, we find that due respect for a foreign decree is being canvassed and subscribed with the authority by the Apex Court of our country perhaps to curb malicious prosecution, self serving litigation etc.

Even though prescribed provision of Public International Law requires only signatory countries to the treaty to honour their counterpart judgments and decrees, the Supreme Court is still considering the nuances, and changes in the Private International Law has come to the aid of the spouse who had secured appropriate orders regarding custody of children from the competent court.  The Supreme Court would go on to add a phrase “comity of courts” to bring in a host of other countries who are not signatories to the treaty regarding execution of foreign decrees.

Writ of Habeas Corpus generally considered as a remedy for securing a detenu who is in illegal custody of either the law enforcement agency or individuals, is the writ i.e. being invoked by the aggrieved parent against whose wish and consent the minor child has been withdrawn from the country of their domicile to the country of birth of the other parent. Various guidelines have been framed by the Supreme Court and the High Courts as to when and how the writ jurisdiction can and cannot be invoked and courts have always come to the rescue of the aggrieved parent by directing the return of custody of children along with their passports with a direction to the other parent to participate in any proceedings relating to custody in a competent court in the country of their domicile.  The spheres of 2 courts, the applicability of laws regarding jurisdiction, the management of litigation and the urgent interim measures regarding visitation rights of either of the parents pending litigation and the temporary custody are all aspects for which proper and effective legal remedy can be availed by invoking article 226 of the Constitution of India or Article 32 of the Constitution of India either before the Hon’ble High Courts or before the Apex Court as the case may be.  The above mentioned case laws will give enough insight into the legal topic private international law – custody of children/visitation rights and enforcement of foreign decree.

M.L. Joseph

Chennai Law Associates

(The author is the Managing Partner of M/s. Chennai Law Associates and can be contacted on mljscla@gmail.com)