Judicial Trends In International Parental Child Abduction Cases In India

INTRODUCTION

While India remains a non-signatory to the Hague Convention on the Civil Aspects of International Child Abduction, 1980 ("Hague Convention"), Indian courts have developed a evolved a substantial and principled body of jurisprudence governing international parental child abduction disputes. This jurisprudence draws heavily from the equitable doctrine of parens patriae, principles of private international law, and constitutional mandates, while remaining firmly anchored in the paramount consideration of the welfare of the child.

This article examines Indian judicial trends concerning inter country parental child abduction, with a particular focus on cases where Indian courts have ordered repatriation of children to foreign jurisdictions. It analyses how courts balance competing considerations of child welfare, comity of courts, and the risk of physical or psychological harm upon return.

THE PARENS PATRIAE JURISDICTION

A. Nature and Scope

Indian courts exercise inherent parens patriae jurisdiction in matters concerning custody of minor children. This jurisdiction is independent of statute and is rooted in the obligation of the State to protect those who are unable to protect themselves. In child custody matters, habeas corpus is frequently invoked not to adjudicate parental rights, but to determine whether the custody in which a child presently resides serves the child's best interests.

B. Exercise of Jurisdiction

In exercising parens patriae jurisdiction, courts are:

• Neither bound by statutes nor by strict rules of evidence or procedure nor by precedents
• Expected to give due weight to child's ordinary comfort, contentment, health, education, intellectual development
• Required to consider moral and ethical values as equally important as physical well-being
• Bound to solve human problems with human touch rather than mere legal interpretation

WELFARE OF THE CHILD: PARAMOUNT CONSIDERATION

A. Constitutional and Statutory Framework

The consistent thread running through Indian judicial decisions is the paramount importance of the child's welfare. Indian Courts are not inclined to order a mechanical repatriation merely based on the principles of private international law governing international parental child abduction or parental claims. This has led to the welfare of the child becoming the foundation of child custody jurisprudence in India.

This principle finds statutory recognition in Section 17 of the Guardians and Wards Act, 1890¹ ("GW Act"). Similarly, the Hindu Minority and Guardianship Act, 1956² ("HMG Act") is another equally important statute where the welfare principle is enshrined. Section 13(1) of the HMGA mandates that in the appointment or declaration of any person as guardian of a Hindu minor, the welfare of the minor shall be the paramount consideration. The word "welfare" used in Section 13 of HMGA has to be construed literally and must be taken in its widest sense.

B. Comprehensive Assessment of Welfare by Indian Courts

The expression "welfare" has been construed by Indian courts in its widest sense. The Supreme Court in Nil Ratan Kundu v. Abhijit Kundu³, held that courts must give due weight to the child's ordinary comfort, contentment, health, education, intellectual development and favorable surroundings. However, over and above physical comforts, moral and ethical values cannot be ignored which are equally, if not more important, essential and indispensable considerations.

The assessment of welfare is necessarily holistic. Courts consider factors such as:

• Physical and psychological well-being: Health, safety, and emotional security of the child
• Educational prospects: Quality and continuity of education, specialized needs
• Stability and security: Established routines, peer groups, familiar environment
• Cultural and linguistic integration: Acclimatization to social customs, language proficiency
• Emotional bonding: Attachment with primary caregiver and family members
• Developmental roots: Whether child has developed roots in new environment

PRIVATE INTERNATIONAL LAW PRINCIPLES

Although India does not follow a treaty-based regime for international child abduction, Indian courts routinely apply the following principles of private international law as persuasive guides.

A. The Doctrine of Comity of Courts

The doctrine of comity of courts was first observed in Dhanwati Joshi v. Madhav Unde⁴ wherein, the Supreme Court observed the law in relation to non-convention countries and stated 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 the paramount importance and consider the order of the foreign court as only a factor to be considered.⁵

While the principle as observed in Dhanwanti Joshi (supra), still holds good, in recent years, this doctrine has been evolved in a different light. In Yashita Sahu v. State of Rajasthan⁶, the Supreme Court recognized it as "a very healthy doctrine"⁷. It was observed by the Court that if courts in different jurisdictions do not respect the orders passed by each other, it will lead to contradictory orders being passed in different jurisdictions. The Court specifically noted the importance of this doctrine in international parental child abduction cases.

In Surya Vadanan v. State of Tamil Nadu⁸, cited extensively in Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu⁹, the Supreme Court elaborated that the principle of comity of courts is essentially a principle of self-restraint, applicable when a foreign court is seized of the issue of custody of a child prior to the domestic court. In that event, if the domestic court were to pass an effective order prior in time then the foreign court ought to respect that order and exercise self -restraint (or vice versa), unless there are very good reasons not to do so. The Court discussed this principle alongside welfare principle and observed that these are not "contrasting" but are different principles that need to be applied in the facts of a given case.

In Arathi Bandi v. Bandi Jagadrakshaka Rao and Ors.¹⁰, it was held that a violation of an interim or interlocutory order passed by a court of competent jurisdiction ought to be viewed strictly if the rule of law is to be maintained.

Accordingly, the Supreme Court and several High Courts have, on multiple occasions, accorded due weight to the views and determinations of courts in the foreign jurisdiction of the child's nationality or habitual residence, particularly while applying the doctrine of comity of courts.

B. Doctrine of "Most Intimate Contact" and "Closest Concern"

The doctrines of "most intimate contact" and "closest concern" emanate from the idea that a foreign court having the most intimate contact and the closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural milieu in which the child has been brought up. These doctrines assume particular significance where a child is removed from the country of habitual residence and exposed to an unfamiliar environment, language, and customs, a transition that may have an adverse bearing on the child's overall growth and development.

In Surinder Kaur Sandhu v. Harbax Singh Sandhu¹¹, the Supreme Court held that in matters related to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. Accordingly, it was noted that the order of the English Court having most intimate contact with the issue and jurisdiction over the matter, should decide the issue of custody of the child. Such jurisdiction cannot be ousted by continuing to abstain from the proceedings.¹²

The doctrine of most intimate contact, as articulated in Surinder Kaur Sandhu (supra), has been consistently applied by the Supreme Court as a guiding principle in determining the forum best suited to adjudicate issues of child custody. The Court has relied upon this doctrine to assess the best interests of the child by identifying the jurisdiction with the closest and most substantial connection to the child, and which is therefore better equipped to undertake a meaningful inquiry into the child's welfare and long-term interests.

THE FOUNDATIONAL TEST: NO PHYSICAL OR PSYCHOLOGICAL HARM UPON REPATRIATION

Apart from the other considerations, A central safeguard that has emerged in Indian jurisprudence is that the court must be satisfied that the return of the child to their home country must not cause any moral or physical or social or cultural or psychological harm to the child, upon having conducted a summary inquiry into the child's welfare. This principle has become an integral component of the welfare analysis in repatriation cases.

In Nithya Anand Raghavan v. State of NCT of Delhi¹³, the Supreme Court reaffirmed this position and held that courts in India are free to decline the relief of return of the child brought within its jurisdiction if it is satisfied that such return would expose the child to physical or psychological harm or otherwise place the child in an intolerable position, even in spite of a pre-existing order of the foreign court.

This threshold inquiry ensures that repatriation orders are not passed as a matter of course. Courts typically conduct a summary welfare inquiry, sufficient to assess risk and welfare concerns, while leaving substantive custody adjudication to the court of habitual residence where appropriate.

Although these principles are supremely important to be considered by the Courts, the essence is that the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child, etc. cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child.¹⁴

INDIAN JUDICIAL APPROACH: INTER – COUNTRY PARENTAL CHILD ABDUCTION AND RETENTION

Over the years, Indian courts while applying the foregoing principles, have developed certain identifiable trends in dealing with cases of inter-country parental child removal and retention. Notwithstanding the consistent invocation of the welfare principle, custody determinations over the years have displayed considerable variation, reflecting the absence of rigid or uniform judicial parameters. Courts have, depending on the facts of individual cases, awarded custody to fathers, mothers, grandparents, or other relatives following the removal of a child from the custody of the lawful guardian. Parallelly, judicial approaches towards foreign custody orders have evolved through distinct phases, marked by shifting emphases in legal reasoning.

In the initial phase, Courts accorded overriding primacy to the immediate welfare of the child and were often reluctant to direct repatriation or enforce foreign custody orders where such a course was perceived to jeopardize the child's health or well-being. A subsequent phase witnessed a discernible tilt towards the doctrine of comity of courts, with Indian courts exhibiting greater willingness to recognize and give effect to foreign custody determinations, even in circumstances where such enforcement did not fully align with an independent welfare assessment. In the third and more recent phase, Indian courts appear to be attempting a reconciliation between these two principles, striving to balance the child's welfare with international obligations.

Significantly, notwithstanding the crystallization of doctrines such as comity of courts, most intimate contact, the relevance of foreign custody orders, citizenship of the parents and the child, and the potential for harm upon repatriation, Indian courts have repeatedly reaffirmed that none of these considerations can override the paramountcy of the child's welfare. To this extent, the Supreme Court in Nithya Anand Raghavan v. State of NCT of Delhi¹⁵, has emphatically stated that the principle of comity of courts cannot be given primacy or more weightage for deciding the matter of custody or for return of the child to the native state. The overriding consideration must always remain the welfare of the child.

Against this jurisprudential backdrop, the following decisions assume particular significance in tracing and analyzing contemporary judicial trends in international parental child abduction cases..

Yashita Sahu v. State of Rajasthan & Ors.

Factual Matrix

The case involved a couple married in India in 2016, following which the wife joined the husband in the United States, where he was employed. A daughter, Kiyara, was born in 2017 and acquired United States citizenship by birth. Following marital discord, the wife approached the Norfolk Juvenile and Domestic Relations District Court in the United States seeking emergency protection orders, which were granted. Thereafter, she sought sole custody of the minor child. However, by way of a consent order, the foreign court granted joint legal and physical custody to both parents with a shared parenting arrangement.

Within a month of the said order, the wife removed the child to India in violation of the subsisting custody arrangement. The husband approached the Norfolk Court, which directed the return of the wife and child to the United States and granted sole legal and physical custody of the child to the father. The father thereafter filed a petition for habeas corpus before the Rajasthan High Court seeking production and repatriation of the child. The High Court allowed the petition and directed the child's return to the United States. Aggrieved, the mother approached the Supreme Court challenging the High Court's directions.

Principles Established:

The Supreme Court made several seminal observations:

• Maintainability of Habeas Corpus: The Court categorically held that it is no longer open to contend that such a writ is not maintainable merely because the child is in the custody of one parent. The extraordinary writ jurisdiction of constitutional courts can be invoked wherever the welfare of the child so demands.¹⁶
• Comity of Courts: When a child is removed from one country to another, especially in violation of court orders jurisdiction of which had been invoked by the removing parent, the country to which the child is removed must consider whether to conduct an elaborate enquiry or deal with the matter summarily, ordering the parent to return the custody of the child to the jurisdiction from which the child was removed, and all aspects relating to the child's welfare be investigated in a court in his/her own country.¹⁷ In any case, a domestic court cannot sit in appeal over orders of a Foreign Court.¹⁸
• No Direction to Adult Spouse: While custody of a child is important, no direction can be issued in writ jurisdiction to an adult spouse to go and live with the other spouse in a foreign country.¹⁹
• Visitation and Contact Rights: Courts emphasized on the importance of visitation and contact rights and noted that the custodial parent must ensure adequate visitation rights and contact rights including video calling for 5-10 minutes daily to maintain the bond with the non-custodial parent.²⁰

Decision:

While upholding the decision to repatriate the child, the Court issued directions in two parts: if the wife was willing to return to USA, the husband was bound by undertakings to provide accommodation, bear expenses, and not initiate penal action. If she was unwilling, the child was to be handed over to the father with elaborate contact rights provisions ensuring the child speaks to mother daily through video call and bi-annual visits to India.

Vasudha Sethi & Ors. v. Kiran V. Bhaskar & Anr.²¹

Factual Matrix

The parties, both permanent residents of the United States, were married there and had a child who was born in the United States and was a citizen by birth. The child was brought to India by the mother with the father's consent for medical treatment pursuant to an International Travel Consent document, which specified a limited period of stay and was supported by confirmed return tickets.

Upon expiry of the stipulated period, the mother refused to return the child to the United States. The father approached the appropriate court in Arkansas, which took note of the violation of the travel consent and granted custody of the child to the father. The father thereafter filed a habeas corpus petition before the Punjab and Haryana High Court, which directed the mother either to return to the US with the child or to hand over custody to the father for repatriation. The mother challenged these directions before the Supreme Court.

Principles Established:

• Welfare Principle in light of Section 6(a) HMGA: While refuting the mother's contention that Section 6 of the HMGA provides a statutory presumption in her favor under the "doctrine of tender years," asserting maternal preference, the Supreme Court clarified that on a conjoint reading of Section 13(1) read with Section 6(a) of HMGA, if it is found that the welfare of a minor whose age is more than 5 years requires that his custody should be with the mother, the Court is bound to do so. Conversely, if the interest of the minor, which is the paramount consideration, requires that the custody should not be with the mother, the Court will be justified in disturbing the custody of the mother even if the age of the minor is less than five years. Thus, the maternal preference under Section 6 is indeed a rebuttable presumption that yields to the welfare principle.²²
• Rights of litigating parties are irrelevant: The Court clarified that the decision in each case must depend on the totality of facts and circumstances of the case, which have to be tested on the principle of welfare of the minor child. In such complex disputes, the rights of the litigating parties or the welfare of the parents are not a consideration.²³

Decision:

The Supreme Court held a summary inquiry and noted that the child had spent more than three years in USA and two and a half years in India, thus complete integration had not occurred in either jurisdiction.²⁴ The Court found relevant the father's financial stability, flexibility to work remotely, and the availability of extended family support in the United States. Significantly, the Court observed that the natural process of grooming in the environment of the child's native country plays an important role in holistic development. Accordingly, the Court directed repatriation of the child to the United States, with alternative arrangements for the mother in the event she chose to remain in India.²⁵

Lahari Sakhamuri v. Sobhan Kodali ²⁶

Factual Matrix:

The parties, both green card holders, were married in India and subsequently settled permanently in the United States. They were parents to two children, both born in the United States. The mother initiated divorce and custody proceedings before a United States court, which directed the parties not to alter the residence of the children.

Shortly thereafter, the mother travelled to India with the children on return tickets but subsequently filed guardianship proceedings before the Family Court at Hyderabad, seeking an interim injunction against the father. The United States court, upon being informed, granted temporary custody to the father and directed the mother to return with the children.

Despite this, the Family Court passed an ex-parte injunction in favor of the mother. The father challenged these proceedings and also filed a habeas corpus petition before the Telangana High Court seeking repatriation. The High Court ruled in favor of the father, and the matter eventually reached the Supreme Court.

Observations:

Jurisdiction of Indian Family Court: The Supreme Court upheld the High Court's view that the children were not "ordinarily resident" in India under Section 9(1) of the G&W Act, since they were born, brought up and residing in the US and had been in India only for about 20 days when the guardianship petition was filed; therefore, the Family Court at Hyderabad lacked jurisdiction and the guardianship petition was rightly rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908.²⁷

Factors linked to "Best interest": The judgment expressly sets out the core factors for assessing welfare of the child and parents, namely, (1) maturity and judgment, (2) mental stability, (3) ability to provide access to schools, (4) moral character, (5) ability to provide continuing involvement in the community, (6) financial sufficiency, and (7) the nature of the relationship with the child as opposed to mere personal traits of the parent.²⁸

Caution against forum shopping: The Court viewed the mother's concealment of the US proceedings and orders while approaching the Family Court in India, and the removal/retention of the children in India contrary to the US orders, passed at her instance, as conduct that could not be used to create jurisdiction or advantage, warning that jurisdiction cannot be founded on such fortuitous or wrongful circumstances.

Decision:

Applying the doctrines of comity of courts, intimate connect, and the child's "natural environment", the Court held that the US Court had the most intimate contact with and jurisdiction over the children, and that their best interests would be served by returning to the US to resume life with access to both parents, grandparents, school, teachers and peers; accordingly, the mother was directed to return to the US with the children within six weeks and to participate in the US proceedings she herself had initiated.²⁹

CONCLUSION

The jurisprudence evolved by Indian courts in international parental child abduction cases reflects a nuanced and mature balancing of competing considerations. While Indian courts accord due respect to foreign judgments and the doctrine of comity, they refuse to be subservient to these considerations when the welfare of the child demands otherwise.

The cases of Vasudha Sethi, Yashita Sahu and Lahari Sakhamuri demonstrate that successful repatriation is predicated upon:

• Establishing that the child's native country is the foreign jurisdiction where they have habitual residence
• Demonstrating that repatriation serves the child's welfare better than retention in India
• Proving absence of physical or psychological harm upon return
• Providing credible safeguards for the other parent's rights through modern communication and periodic visitation

However, the analysis also reveals a critical gap in remedies available to left-behind parents in foreign jurisdictions. The inapplicability of Section 13 CPC to custody matters, combined with the territorial limitations of the HMGA and the G&W Act, creates significant barriers to enforcement of foreign custody orders in India. Left-behind parents must invoke the constitutional remedy of habeas corpus and establish the child's welfare on merits through de novo proceedings, a process that can take years while the child develops roots in India.

While the absence of accession to the Hague Convention results in non-uniformity, the judiciary has filled this vacuum by crafting a welfare-centric jurisprudence. Indian courts, through their consistent exercise of parens patriae jurisdiction, have developed a humane, child-centric jurisprudence that neither blindly follows foreign judgments nor arbitrarily disregards them, but carefully calibrates each decision to serve the paramount and non-negotiable interest of the child's welfare. This balanced approach continues to evolve, adapting to the complexities of modern transnational families while remaining firmly anchored to the foundational principle that children are not chattels to be bounced between parents, but human beings whose welfare transcends all other considerations.

Nonetheless, the need for India's accession to the Hague Convention, development of bilateral agreements for reciprocal custody enforcement, and enactment of specific legislation addressing international child abduction remains pressing. Until then, such reforms are implemented, the legal landscape will continue to present formidable challenges to left-behind parents seeking to enforce their custody rights, while simultaneously making Indian courts perform a delicate balancing act, guided by constitutional values and the welfare of the child as the cornerstone of their decisions.

Note: This article is part of a series on international child custody and repatriation. The first article addressed the issue in the global context and the magnitude of the problem in India. This article focuses specifically on Indian jurisprudence and successful instances of repatriation by Indian courts, demonstrating how domestic courts balance international comity with child welfare in an increasingly interconnected world.

Footnotes

1 Guardians and Wards Act, 1890, No. 8 of 1890, § 17 (India).

2 Hindu Minority and Guardianship Act, 1956, No. 32 of 1956, § 13 (India).

3 Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 (India).

4 Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112 (India).

5 Id. at ¶ 33.

6 Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67 (India).

7 Id. at ¶ 19.

8 Surya Vadanan v. State of Tamil Nadu, (2015) 5 SSC 450 (India).

9 Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu, 2022 SCC OnLine SC 885 (India).

10 Arathi Bandi v. Bandi Jagadrakshaka Rao and Ors, (2013) 15 SCC 790 (India).

11 Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698 (India).

12 Id. at ¶ 10.

13 Nithya Anand Raghavan v. State of NCT of Delhi, (2017) 8 SCC 454 (India).

14 Lahari Sakhamuri vs Sobhan Kodali, (2019) 7 SCC 311(India), ¶ 41.

15 Nithya Anand Raghavan v. State of NCT of Delhi, (2017) 8 SCC 454 (India).

16 Yashita Sahu v. State of Rajasthan & Ors., 2020 3 SCC 67, ¶ 10 (India).

17 Id at ¶ 14.

18 Id at ¶ 31.

19 Id at ¶ 35.

20 Id at ¶ 25.

21 Vasudha Sethi v Kiran V. Bhaskar & Anr., 2022 SCC Online SC 43 (India).

22 Id. at ¶ 27.

23 Id. at ¶ 28.

24 Id. at ¶ 29.

25 Id. at ¶ 29, 38.

26 Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311 (India).

27 Id. at ¶ 31.

28 Id. at ¶ 49.

29 Id. at ¶ 48.

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