Report No. 218

Access

2.6 The Hague Convention does not give rights of access either the importance or attention but it devotes to rights of custody. It defines "rights of access" as including "the right to take a child for a limited period of time to a place other than the child's habitual residence" [videArticle 5(b)]. The Hague Convention does not impose any specific duty on a court in a Convention country in relation to rights of access and it, therefore, appears that the question of access should therefore be decided with reference to the best interests of the child as a paramount consideration.1

1. Dr. Justice AR. Lakshmanan Child Abduction - Parental Removal, (2008) 48 IJIL 427.

2.7 India is not a signatory to the Hague Convention. The Supreme Court has observed in the case of Sumedha Nagpal v. State of Delhi, JT 2000 (7) SC 450 as under:

= "No decision by any court can restore the broken home or give a child the care and protection of both dutiful parents. No court welcomes such problems or feels at ease in deciding them. But a decision there must be, and it cannot be one repugnant to normal concepts of family and marriage. The basic unit of society is the family and that marriage creates the most important relation in life, which influences morality and civilization of people, than any other institution. During infancy and impressionable age, the care and warmth of both the parents are required for the welfare of the child."3

3. JT 2000 (7) SC 450 (453).

2.8 A case law study will depict a clear picture in this regard. The Supreme Court in Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu, AIR 1984 SC 1224, and Mrs.Elizabeth Dinshaw v. Arvand M. Dinshaw, AIR 1987 SC 3, exercised summary jurisdiction in returning the minor children to the country of their parent.

In a later case of Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, the Supreme Court observed that the order of the foreign court will only be one of the facts which must be taken into consideration while dealing with child custody matters and India being a country which is not a signatory to the Hague Convention, the law is that the Court within whose jurisdiction the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance.

It was in this case the Supreme Court changed the earlier view and did not exercise summary jurisdiction in returning children to its parent and observed that the welfare and best interest of the child or children should be of paramount consideration. This observation by the Supreme Court was followed in a later decision by the Supreme Court in the case of Sarita Sharma v. Sushil Sharma, JT 2000 (2) SC 258.

In 2004, the Supreme Court, in the case of Sahiba Ali v. State of Maharashtra, 2004 (1) HLR 212, declined to grant the custody of her children to the mother but at the same time issued directions for visitation rights in the interest and welfare of the minor children. In another case of Kumar V. Jahgirdar v. Chethana Ramatheertha, 2004 (1) HLR 468, the Supreme 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.

Further, in a recent case of Paul Mohinder Gahun v. State of NCT of Delhi, 2005 (1) HLR 428, the Delhi High Court refused to grant custody of the child to the father and observed that the question of conflict of laws and jurisdictions should take a back seat in preference to what lies in the interest of the minor.

2.9 In a recent decision dated March 3, 2006 of the High Court of Bombay, at Goa, the Court declined to issue a writ of habeas corpus thereby refusing the custody of a girl child to her mother while relegating the parties to normal civil proceedings in Goa for a decision on the point of the custody of the child without disturbing the custody with the father in Goa. The High Court clearly declined the return of the child to Ireland in exercise of its writ jurisdiction and held that this question requires analysis of disputed question of facts.5

5. Mandy Jane Collins v. James Michael Collins, (2006) 2 HLR 446.

2.10 Indian laws that deal with the principles of custody of children are not too many. To name a few:

• The Hindu Marriage Act, 1955
• The Hindu Minority and Guardianship Act, 1956
• The Guardians and Wards Act, 1890

2.11 Section 26 of the Hindu Marriage Act, 1955, states that a court can pass orders and make such provisions in the decree in any proceedings under the Act with respect to the custody, maintenance and education of minor children upon an application for that purpose as expeditiously as possible.

2.12 Section 4(a) of the Hindu Minority and Guardianship Act, 1956 defines "minor" to mean "a person who has not reached the age 18 years". And, under the Act, the custody of a child is given to any person, be it the child's natural parents or guardian (appointed by the court) with the prime importance given to the welfare of the child. A landmark case that decided the same was Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.

2.13 The High Court by way of the writ of habeas corpus can order custody of a minor at the behest of a parent applying for the same, with predominant focus placed on the welfare of the child.1

1. Dr. Justice AR. Lakshmanan Child Abduction - Parental Removal, (2008) 48 IJIL 427.

2.14 In Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, the Supreme Court referred to the Hague Convention on the Civil Aspects of International Child Abduction and observed as follows:

"32. In this connection, it is necessary to refer to the Hague Convention of 1980 on "Civil Aspects of International Child Abduction". As of today, about 45 countries are parties to this Convention. India is not yet a signatory. Under the Convention, any child below 16 years who had been "wrongfully" removed or retained in another contracting State, could be returned back to the country from which the child had been removed, by application to a central authority.

Under Article 16 of the Convention, if in the process, the issue goes before a court, the Convention prohibits the court from going into the merits of the welfare of the child. Article 12 requires the child to be sent back, but if a period of more than one year has lapsed from the date of removal to the date of commencement of the proceedings before the court, the child would still be returned unless it is demonstrated that the child is now settled in its new environment.

Article 12 is subject to Article 13 and a return could be refused if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. In England, these aspects are covered by the Child Abduction and Custody Act, 1985.

33. So far as non-Convention countries are concerned, or where the removal related to a period before adopting the Convention, the law is 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 as stated in McKee v. McKee unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in L., Re.

As recently as 1996-1997, it has been held in P (A minor) (Child Abduction: Non-Convention Country), Re: by Ward, L.J. [1996 Current Law Year Book, pp. 165-166] that in deciding whether to order the return of a child who has been abducted from his or her country of habitual residence - which was not a party to the Hague Convention, 1980, - the courts' overriding consideration must be the child's welfare.

There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the child's return unless a grave risk of harm was established. See also A (A minor) (Abduction: Non-Convention Country) [Re, The Times 3-7-97 by Ward, L.J. (CA) (quoted in Current Law, August 1997, p. 13]. This answers the contention relating to removal of the child from USA."

2.15 From the above, it can be observed that, the Indian Courts while deciding cases pertaining to minor children have not followed a uniform pattern. There also is an absence of progressive development in the subject. If some matters are decided with prime importance placed on the welfare of the child, some are based on the technicalities of various provisions of law and jurisdictional tiffs. The reason cited for this can be the absence of any law that governs this aspect. This only will affect the condition both physical and emotional of the child, who is caught in the fire of shattered relationships.1

2.16 This situation only shows that the time has come for some international perspective in this regard. The fact of India not being a signatory to the Hague Convention on the Civil Aspects of International Child Abduction may have a negative influence on a foreign judge who is deciding on the custody of a child.

Without the guarantee afforded by the Hague Convention to the effect that the child will be swiftly returned to the country of origin, the foreign judge may be reluctant to give permission for the child to travel to India. As a logical upshot, India should become a signatory to the Hague Convention and this will, in turn, bring the prospect of achieving the return to India of children who have their homes in India.1

1. Dr. Justice AR. Lakshmanan Child Abduction - Parental Removal, (2008) 48 IJIL 427.