Private International Law

Topic: Conflict of Laws and the Role of Courts as Parent Patriae in child custody matters

Submitted to: Professor Bhumika Nanda

Designation: Asst. Professor, School of Law
Submitted by: Tia Sachdeva
Enrolment No.: L21LLBU0007
INTRODUCTION:
Family matters are more often than not seen to be matters of complexity and sensitivity. Such
matters require the Courts to not only play various roles but also give a judgement that
ultimately looks at the welfare of the family and children that are involved in matters, such
matters include divorce matters, paternity matters, separation, and custody matters. This
article will aim at understanding the role of conflict of law rules of a nation and how Courts
play the role of Parent Patriae to deliver a decision best suited and favourable to all the
parties to the matter.

Private International is a branch of law where civil matters related to individuals are looked
into as subjects, such matters owing to the lack of a uniformly established Court are dealt
with by the domestic courts of the countries. The foundation of Private International Law is
laid down by the principles of comity, justice, and convenience as result to the parties. The
laws that stand applicable in this case are the domestic laws of a nation and it deals with cases
that have a foreign element attached to them. The foreign element means a contact with some
system of law other than that of the forum, the addition of a foreign element to case is what
leads to the determination of the applicability of laws. These are subject to change depending
on whether the nation is a common law nation or a nation that follows civil laws.

The question on whether the Conflict of Laws take precedence or Private International Law is
answered on a cases-to-cases basis. Early jurist theories preferred using Private International
Law but the criticism it faced was it may be confused with the phenomena of Public
International Law that has States as subjects and there is an established Court of Law – the
International Court of Justice that adjudicates on such matters. Public International Law has
contours that are very well defined when compared with Private International Law. When it
comes to deciding which law to apply, the branch of Private International Law makes use of
“connecting factors” – these are factors that are present help in determining whether to apply
the law of the forum or the law of the foreign country.
BODY:
The laws are applied to civil matters like contracts, torts, marriage related matters and one of
such are the matters of child custody. Child custody relates to the right of parent(s) to make
decisions for the child and includes an element of physical custody i.e., who the child is
going to live with ultimately. The problem starts when the custody matters have a foreign
element to it. Suppose there is a situation wherein the parents of a child do not reside in the
same country, and as per the routine setting the child resides with both parents, it can be
tough to determine which country should have jurisdiction over a case to determine custody
of the child because then there comes in the element of two legal systems. If one of the
parents of the child is in country A and has filed a child custody case in the same country and
the other parent does not believe it is the proper venue for the action, the parent seeking to
transfer the case will most likely have to file an action in the original court, Country B for
example. Whether the action of transfer is successful or not depends on the laws of the
country and the court determining the issue, which will vary greatly depending on what
country is involved.1 A common law/civil law, anything is possible.

When it comes to determining the jurisdiction, the convention that one can turn to is the
‘Uniform Child Jurisdiction and Enforcement Act’ (UCCJEA), the Act has been adopted by
many states and it is this Act that gives custody jurisdiction to the home state of a child. Or,
when it comes to the matter, it shall be heard in the home state of the child or in the state
where the child has resided for a total of six months prior to the filing or any of the parent
that is filing for the action should have been living in that state for the past six months in that
state. If in case it happens that the child has not completed six months, it is for the Court to
analyse whether the child and one of the parents do have a strong connection to one state to
determine where jurisdiction lies.2 If the Court has established that there is no real/ substantial
connection of the child with that State, then an alternate State can be found out which has
competent jurisdiction.

Suppose there is a case where the child has been taken to another country wrongfully. In such
a case, the “Hague Convention on the Civil Aspects of International Child Abduction or
Hague Abduction Convention” will have a role to play as it was drafted in order to ensure the
prompt return of children wrongfully abducted from their country of habitual residence or has

1
“International Child Custody under the Law” (Justia, October 18, 2023) https://www.justia.com/family/child-
custody-and-support/child-custody/international-child-custody/
2
“International Child Custody under the Law” (Justia, October 18, 2023) https://www.justia.com/family/child-
custody-and-support/child-custody/international-child-custody/
been retained wrongfully in the country that does not qualify as the child’s habitual residence.
Some of the important feature of the Convention include:

 Nations that have ratified the convention and are party to it have to have a Central
Authority or nodal authority which acts as the point of contact between the 2 parents
and other governments involved that would be involved in the cases of abduction.
 This Central Authority, has the responsibility to locate the children abducted, promote
settlement through amicable solution and facilitate safe return of the child.
 The documents that have been submitted to the Central Authority as a part of the
application can be admitted to courts in partner countries without the formalities
meaning thereby, the documents can be submitted as it is in Courts associated with
documents from foreign countries for admission to courts.
 A parent need not show a custody order to prove that his/her custody rights have been
breached when the child was taken from his or her country; the Convention allows
proof according to the laws of the child’s habitual residence, the standard of evidence
is often set by showing proof of parenthood or marriage.
 Whether a child should be returned to his/her habitual residence, or whether
access/visitation rights exist, does not depend on the immigration status/or nationality
of a child or his or her parents, it is independent of these factors.3

The remedies available to a party under this Convention are given under Article 3 4. In
terms of the Indian perspective, the parties can:

 Make use of the Constitutional remedies available to it under Article 32 5 and

Article 2266, by way of Habaes Corpus, it is a very commonly used remedy by the
parent against the spouse allegedly abducting the child to India.
 Another recourse that the parties can use is the provisions of the Hindu Minority
and Guardianship Act 1956. This has extra-territorial operation by seeking
guardianship rights for their own child.

India currently is not a signatory to the Convention as India will have to have the residential
law setup and it was in the 281st Law Commission Report that mention – “Consent to the
“Hague Convention on The Civil Aspects of International Child Abduction 1980” on 30th
3
Admin, “Hague Abduction Convention, International Child Abduction [UPSC Notes for IR]” (BYJUS, January
10, 2023) https://byjus.com/free-ias-prep/hague-abduction-convention/
4
Article 4 of The “Hague Abduction Convention, International Child Abduction”
5
Article 32 of the Constitution of India
6
Article 226 of the Constitution of India
March 2009. A few reasons why India has not signed the convention includes – the fact that
the Convention is referring to the parent as an abductor himself/herself turns out to rather
offensive, under the Indian law, the parents are seen to be the child’s natural guardian and
cannot be equated to an “abductor”, no recognition given to domestic violence as reason for
the mother to return to her country of origin, the term “habitual resident” is considered vague
especially in case of toddlers and infants, the Convention provides equal regard to all
jurisdictions but India has faced a lot of difficulty and prejudice in the first world nations. 7

In terms of the recent developments in India, the National Commission for Protection of
Child Rights (NCPCR) was set up under the Commission for Protection of Child Rights Act,
2005, in 2007 and the commission’s main aim was to ensure all the Laws, the Policies, the
Programmes, and the Administrative Mechanisms go hand in hand with the Child Rights
perspective as enshrined in the Constitution of India and also the UN Convention on the
Rights of the Child (UNCRC). It was in February of 2016 that High Courts of Punjab and
Haryana referred the matter to the Law Commission and Ministry of Women and Child
Development in order to gain clarity on how such matters are to be dealt with. In July 2017,
the committee, comprising two HC judges, a Delhi HC judge, the chairman of the Punjab
NRI Commission, a family law expert, and six representatives of various Ministries released
a concept note for public suggestions which was left open to suggestion from the public and
their opinions on how the matters ought to take shape in future keeping in mind the future of
the child.8

When the suggestions from the public came in, the head Committee went onto setting up a
sub-committee to study the legal provisions pertaining to shared custody in both developed
and developing countries with special focus on the circumstances in which joint custody may
be granted, parenting plans and mediation. The main conclusions after deliberations were: (i)
the principle of welfare that lays the foundation of the Guardians and Wards Act, 1890
requires strengthening and emphasis has to be laid on each aspect of guardianship and
custody related decision-making; (ii) the parents of the child have to be given an equal status
when it comes to guardianship and custody; (iii) by providing detailed guidelines, the best
decision can be made for the child in terms of what custodial and guardianship arrangement
serves the welfare of the child in specific situations; and (iv) keeping the option of awarding

7
“Hague Abduction Convention, International Child Abduction [UPSC Notes for IR]” (BYJUS, January 10,
2023) https://byjus.com/free-ias-prep/hague-abduction-convention/
8
“New Cell to Resolve Child Custody Disputes” (Drishti IAS)
https://www.drishtiias.com/daily-news-analysis/new-cell-to-resolve-child-custody-disputes
joint custody to both parents open, in certain circumstances conducive to the welfare of the
child. 9

The author of article is of the opinion that the reasons cited by India as a nation did not seem
to have a firm ground considering the idea of extra-territorial marriages is increasing. It is
important to note that even though India is still a developing country, the standard when it
comes to such sensitive matters has to be raised primarily because it involves a child and his
future that is dependent on what the Court decides for him/her.

The article basis the analysis of the author will discuss the doctrine of Parens Patriae where
the Court is considered the “parent of the nation” wherein the Court becomes the next best
friend of the child/minor and when deciding for the future of the child, the Court ought to
prioritise the “welfare of the child” and welfare may include better health of the child, best
educational attainment, proper mental and emotional behaviour, bond with the family and
financial status. In India, this doctrine has grown immensely, and it is the Indian Constitution
that enforces the doctrine through the Preamble and the Directive Principles of State Policy –
the Preamble mentions about social and economic justice and also strives to protect the
dignity of the individual meaning thereby that the State comes to the rescue and protects any
individual who is unable to safeguard his/her own dignity and thereby also promoting social
justice in the society. Under the Hindu Minority and Guardianship Act, 1956, Section 13(1) 10
states that when the court appoints or declares a guardian the supreme factor shall be the
“welfare of the child”. Section 13(2) 11 states that guardian will not be appointed by the court
if it’s for the “welfare of the child”. Section 7(1) of the Guardian and Wards Act 12, lays down
that for the “welfare of a minor” the court can make an order for the appointment of a
guardian. The act mentions welfare of the minor all across only to shed light on how serious
it is to secure the future of the child.

9
“Reforms in Guardianship and Custody Laws in India”
(https://highcourtchd.gov.in/sub_pages/left_menu/publish/year_books/Report%20No.257%20Custody
%20Laws.pdf, May 22, 2015)
10
Section 13 (1) of the Hindu Minority and Guardianship Act, 1956.
11
Section 13 (2) of the Hindu Minority and Guardianship Act, 1956.
12
Section 7(1) of the Guardian and Wards Act.
CASE REFERENCES:

In the case of Irfan Ahmad Shaikh v. Mumtaz 13, the Hon’ble High Court of Bombay laid
down the principle of “welfare of a child” and granted the custody of a minor girl child to the
mother even though the mother was remarried as the child desired to live with the mother. In
Rosy Jacob v. Jacob Charmakkal14, the Apex Court stated that “the children are not mere
play things for their parents. Absolute rights of parents over the destinies and lives of their
children have, in the modern changed conditions, yield to the consideration of their welfare
as human beings.” While determining custody disputes, the “positive test” includes factors
which constitute the ‘child’s best interest’ needs to be determined rather than the “negative
test” shedding light on the incompetence of the applicant. In the case of Nil Ratan Kundu v.
Abhijit Kundu, the custody of the child was handed over to the grandparents because the
father of the child had been arrested under Section 498A and 304 of the Indian Penal Code of
1860. Once the father was granted the bail, he filed an application to get the custody of the
child and the Trial Court subsequently issued an Order handing over custody of the child to
the father but later the grandparents appealed against the said Order to be set aside but the
High Court upheld the order of the Trial Court. Ultimately the case reached the Supreme
Court of India, and the application of the father was dismissed – the Court called upon the
child and asked him/her for what he/she wanted. The child stated being happy with the
grandparents and hence they continued to have the custody.

The Apex Court reiterated the idea that the “positive test” i.e., whether such custody would be
in the interest of the child or not is the main focus rather than “negative test” that discusses
the incompetence of the applicant. Thus, the doctrine in India has always looked at the child
being the main character and the conclusion of the custody is always dependent on a case-to-
case basis, simply. 15

In the case of Surinder Kaur Sandhu v. Harbax SinghSandhu and Anr.16, the parents of the
child were Indian citizen and had settled in England after their marriage. The child born out
of the wedlock was a British citizen by birth. The father had taken the child to India and the
mother of the child obtained an order from the English courts, ordering the father to transfer
the custody of the child to her and further by way of writ petition in the Supreme Court of
13
AIR 1999 Bom 25.
14
AIR 1973 SC 2090.
15
Pradhan A, “Evolution of Child Custody Laws from ‘Parens Patriae’ to the ‘Welfare of the Child’” Vol. 11 No.
1 PEOPLE’S MOVEMENT AND SOCIAL CHANGE (https://ir.nbu.ac.in/bitstream/123456789/3998/1/IJLJ
%20-%20Vol.%2011%20No.%201%20%28Part%20II%29%20Article%20No%2011.pdf)
16
1984 3 SCC 698.
India for production and custody of the child. It was seen that ultimately, the English courts
were the ones that had the most substantial and intimate connection with the issue and
jurisdiction in this case. It was held that the custody of the child should be given to the
mother instead of the father, the natural guardian of the child.17

Similarly, in the case of Kuldeep Sidhu v. Chanan Singh & Ors.18, the parents and children
were all Canadian citizens and briefly, the removal of the children by the father from Canada
and bringing them to India was held to be improper. The Supreme Court of Ontario in this
19
case ruled in favour of the mother of the children by granting the custody.

CONCLUSION:

In Conclusion, it is seen that with the advent of cross-border relations, the complexity of such
matters increases. India currently is not a signatory to the international law convention and
hence the best it can do is to apply this doctrine by way of interpretation. Some important
components to be kept in mind as per the author’s understanding includes –

a) Understanding the child – it should be on the top at the priority list. The needs, wants,
thoughts and actions of the child must be given careful consideration before
pronouncing the final judgement.
b) India must ratify the “Hague Convention of 1980” – It is important owing to the
diverse culture and varying personal laws that a uniform and standard law should be
the guiding force and hence be ratified.
c) A legislation is the need of the hour – The complexity of such matters is because of
the lack of proper legislation. Despite the fact that the judiciary is looking into, and
handling matters with a lot of patience, sensitivity, and calmness but a strong
legislation means a way and manner to handle such matter, quicker and better.

17
Kapoor S, “Judgment - Child Custody - Custody of Minor Child to Father” (Shonee Kapoor, April 24, 2023)
https://shoneekapoor.com/aviral-mittal-vs-state-anr/
18
AIR 1989 P&H 103
19
Kapoor S, “Judgment - Child Custody - Custody of Minor Child to Father” (Shonee Kapoor, April 24, 2023)
https://shoneekapoor.com/aviral-mittal-vs-state-anr/