CHILD ABDUCTION IN NRI MARRIAGES: CONFLICT OF JURISDICTIONS
~ Archita Garg
ABSTRACT
With the global pattern of migration, the number of NRI marriages has also increased. NRI marriages are marriages where at least one of the spouses is a non-resident Indian or of Indian origin. While these marriages promise new opportunities and probably better living conditions, they often lead to complicated legal battles, especially regarding child custody and abduction caused by jurisdictional conflicts. This article discusses parental child abduction in NRI marriages and analyses how the Indian and foreign legal systems interrelate in such situations. Attention is drawn to some important judgments of the Supreme Court of India, various domestic legislative regimes, and the possible role of the Hague Convention on the Civil Aspects of International Child Abduction. Based on case law and policy directions, the discussion presents a case for India’s conditional accession to the Hague Convention to balance the interests of the child with that of the vulnerable parent in order to have fair solutions to transnational custody disputes.
Keywords: Accession, Child Welfare, Custody Disputes, Guardianship, Parental Child Abduction
INTRODUCTION
The rising number of NRI marriages represents a global trend in international migration, wherein at least one of the spouses has NRI or Person of Indian Origin status. These are predominantly unions between an NRI bridegroom and an Indian-resident bride, rejoiced for opening up avenues to a superior lifestyle and prospects. Yet, the transnational nature of such marriages increases the legal vulnerabilities faced, especially in the case of marital disputes. Cases of disputes over divorce, maintenance, and child custody thus span across jurisdictions, creating a possible conflict between courts in India and their counterparts in the country of residence of the NRI. Perhaps most pressing among them is the problem of parental child abduction, which has come to mean the taking, retention, or concealment of a child by a parent in breach of another’s custodial or access rights. This problem has grown with the emerging incidences of NRI marriages, combined with incidents of fraud and other issues.
CUSTODY DISPUTES IN NRI MARRIAGES
NRI marriages have gained prominence given the increasing migration from India, developing cross-border familial relationships. However, the geographical separation that these marriages imply creates peculiar legal challenges in themselves. Where the relations turn sour, the involvement of different legal systems often leads to protracted battles over child custody.
The custody disputes within the NRI context usually arise in three ways: First, fathers forcibly take away the children to foreign countries by misusing their NRI status. Secondly, mothers helpless in alien environments may relocate to India along with their children in violation of foreign custodial orders. Thirdly, in the absence of any prior orders, fathers can obtain an ex parte custody order from a foreign court favourable to them.
The motives behind such kidnappings include alienating the other parent, marital conflicts, disagreements over visiting rights, among others. While specific numbers are hard to come by due to underreporting, it is already acknowledged that the problem is serious, especially in families of mixed nationality.
Transnational child custody disputes in NRI marriages raise profound jurisdictional questions. Central among these is whether Indian courts can adjudicate custody for a child who may hold foreign citizenship. Additionally, does the intent of the mother and child to reside in India vest jurisdiction in Indian forums? Further complexities involve the enforceability of foreign custody orders and under what conditions should Indian courts recognise them? Another related but critical debate is whether Indian courts should have summary proceedings for the return of the child under a pre-existing foreign order. Overarching all is the prime principle governing custody i.e. should the child’s welfare and best interests predominate?
THE ROLE OF INTERNATIONAL INSTRUMENTS AND INDIAN EFFORTS
The Hague Convention on the Civil Aspects of International Child Abduction provides a legal structure for dealing with abductions, that is, to order the prompt return of children to their habitual residence, except in narrowly defined exceptions. It grants priority to custody rights under the law of the country of origin and requires recipient states to enforce returns summarily.
However, India is not a signatory to it because there have been apprehensions, mainly by women’s rights groups, that the Convention ignores the case of women fleeing abuse and defends returns mechanically. Inspite of this, the Law Commission of India did propose, in its 218th Report, accession on the ground that it would eliminate jurisdictional ambiguity. A more refined version was presented in the 2016 Bill, which was in consonance with the Convention to facilitate child returns and respect custody rights across states. It suggested a Central Authority regarding judicial proceedings in High Courts for allowing inquiries into cases of wrongful removal. In 2018, a committee under Justice Rajesh Bindal opposed accession but recommended an Inter-Country Parental Child Removal Disputes Resolution Authority and the Protection of Children (Inter-Country Removal and Retention) Bill, 2018, that favors mediation.
In particular, these initiatives reflect the ongoing debate about the needed balance between international obligations and domestic protections, but a substantial development is still not to be seen.
DOMESTIC LEGAL FRAMEWORK AND JUDICIAL DEVELOPMENT
In the absence of any particular international abduction law, India makes use of existing laws. The Guardians and Wards Act 1890 and Hindu Minority and Guardianship Act 1956 deal with custody and guardianship both focusing on child welfare. Additional safeguards include the POCSO Act of 2012, and Juvenile Justice Act 2015, which work in conjunction in strengthening the prevention, investigation, and prosecution of offenses against children, including abductions. Further, Habeas corpus petitions offer speedier remedies, thus enabling left-behind parents to seek child return via the Supreme Court or High Courts.
Historically, Indian jurisprudence has emphasised child welfare, even re-evaluating foreign orders through this lens. This approach has benefited mothers who flee from hostile foreign settings where they serve as primary caregivers, thus deeming that maternal custody is aligned with the child’s interests.
One of the earliest interventions in this regard was in the case of Surinder Kaur v. Harbax Singh Sandhu. The couple married in India and moved to England, where their child was born. In the midst of domestic violence that led to the conviction of the husband, he abducted the child to India. The wife, armed with an English wardship order, sought custody. The lower courts had held in favor of the husband as natural guardian under the Hindu Minority and Guardianship Act, 1956. The Supreme Court set aside this ruling, stating that Section 6 of the Act gives way to the consideration of the welfare of the minor being paramount. This gave child welfare a central place in cases of abduction.
The case of Ruchi Majoo v. Sanjeev Majoo further reinforced welfare primacy, stressing the child’s happiness, continuity, and access to both parents barring exceptions. The court in Surya Vadanan v. State of Tamil Nadu treated the child as a rights-bearing individual, not chattel, deeming deprivation of parental affection a fundamental rights violation.
However, there was a turning point in V. Ravichandran v. Union of India, where a Constitutional Bench placed comity of nations above the notion of maternity care for child. The 7-year-old US national child had a mother who kept migrating to different locations in India to avoid proceedings and had caused disturbances to the child’s life. The Supreme Court ordered the child to be repatriated to the US and asked the mother to seek variations in custody order there. It commented that she should have pursued the issue of custody immediately after arrival in India. This judgment disturbed the precedents followed earlier, and later decisions had to reconcile their views with this judgment.
Thus, it is clear that the absence of a specific national law accentuates the ambiguities in jurisdiction. The dependence on obsolete statutes, such as the Guardians and Wards Act, limits adaptability to contemporary transnational problems. Habeas corpus speedily provides but is not specific to abductions and mostly leads to prolonged litigation.
RESOLUTION TOWARDS CONDITIONAL ACCESSION AND POLICY RECOMMENDATIONS
The rising Indian diaspora makes the use of international platforms for the resolution of child removals imperative, beyond local remedies. Parallel proceedings commodify children, demanding collaborative judicial interactions.
Accession to the Hague Convention is crucial but uniformly depends on domestic custody law and machinery for its implementation. Hence, the conclusion would be that accessions should be done conditionally, considering adequate safeguards, particularly in respect of victims of domestic violence. Suggestions for such safeguards were also provided during the Japanese ratification with regard to abused women. Japan, too faced with similar cultural concerns about domestic violence, framed declarations at the time of its ratification to ensure that courts consider allegations of abuse before allowing returns. That way, defenses under Article 13(b) of the Convention about the grave risk to the child, can include mistreatment of one of the parents.
This will serve as an example to deter mechanical returns that totally disregard the social context to which the woman is exposed, affecting her dignity and liberty. The adoption of such conditions would allay India’s apprehensions on this score by protecting the fleeing mother while allowing returns in non-abusive situations. This is in tune with constitutional imperatives under Article 21 for protection of life and liberty.
Thus, to resolve the conflicts, India should:
- Enact a uniform custody law codifying welfare principles with clear jurisdictional rules.
- Establish a specialised authority for inter-country disputes, integrating mediation and judicial oversight.
- Accede to the Hague Convention conditionally, with reservations for violence cases.
- Enhance bilateral agreements for cooperation in child recovery.
- Promote awareness and support for NRI families to prevent abductions.
These measures would foster equitable, child-centric outcomes.
Author’s Bio – Archita Garg is a second year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow.