Justice Markandey Katju-
Justice Markandey Katju is a former Judge, Supreme Court of India, and Ms. Aiman Hashmi, Advocate, law clerk, and legal researcher, Supreme Court of India, Delhi. The views expressed are their own.
When I was in USA some years back several young men of Indian origin met me and related me their predicament.
They had migrated to USA several years ago and settled there with good jobs. They had married a girl living in India, and brought her to USA, and later they had a child. Thereafter, either because the wife was unhappy with the marriage, or because she could not adjust in America, or for some other reason, she one day, without informing her husband, left for India with the child. This was often done surreptitiously when the husband had gone for work.
Since then she was living in India with their child, and refused to join her husband in USA. Sometimes the husband was not even allowed to see his child when he went for a short trip to India. Some such husbands applied to a US Court which ordered a restoration of custody of the child to him, but orders of US Courts are not binding in India.
Such young fathers were crestfallen, and some even wept before me since they could not see their child for years. They have formed an association called Bring Our Kids Home, whose office bearers also approached me as they probably thought that being a former Indian Supreme Court Judge I could be of help.
There is a Hague Convention of 1980 for restoration of custody of such abducted children, but India has not signed it, and so it does not apply to India.
Efforts have been made to remedy this situation, but as yet to no avail.
Since the child was in India, all that such young fathers could do was to approach the appropriate court in India, which is a district court, for custody. However, as is well known, Indian courts are overburdened, and so take many years to decide cases. Thereafter there may be an appeal to the High Court, and later even to the Supreme Court, and that too may take several years.
Also, the law in India is that in custody matters the paramount principle is the welfare of the child, and, especially when the child is of tender years, the courts often think that the child’s welfare requires that he/she should remain with the mother. Even if the father has obtained a decree from a US court that the child should be restored to the father, such a foreign decree is not binding on Indian courts.
The Indian court will of course grant visitation rights to the father, but to what avail will such an order be to a person holding a job in USA ? He surely cannot be expected to come all the way from America to India every week, or even once a month, thus risking loss of his job.
In Yashita Sahu vs State of Rajasthan, 2020, no doubt the Indian Supreme Court directed that even if the wife is unwilling to go back to USA the child had to be sent back to USA.
However, a careful perusal of this judgment shows that it was delivered on its own peculiar facts, and no general principle was laid down that in every case of child abduction the child must be restored to the father or the country from where he/she was abducted. The Court noted that the wife had herself approached a US Court when she was living in USA and had entered into an agreement with her husband that every week for some days the child would be with her, and on other days with her husband. She violated this agreement and took away the child to India, even when proceedings were pending in the US Court. In the circumstances, the US Court ordered the restoration of custody to the father.
In para 10 of its judgment in Yashita Sahu’s case the Indian Supreme Court quoted the earlier observation of the Court in Nithya Anand Raghavan vs State ” Each case must depend on the totality of the facts and circumstances of the case whilst considering the welfare of the child which is of paramount importance ” But that decision went on to add ” The order of the foreign court must yield to the welfare of the child.”
In Yashita Sahu’s case the Court also referred, in pare 11, to its earlier decision in Kanika Goel vs State where it was observed: ” The issue ought not to be decided on the basis of the rights of the parties claiming custody of the minor child, but on the best interest of the child “.
In pare 13 of Yashita Sahu’s case it was also observed, “Though the interest of the child is of paramount importance, the court of one jurisdiction should respect the order of a competent court, even if it is beyond its territories “.
In para 16 the Court went on to observe, “We are of the opinion that the doctrine of comity of courts is a very healthy doctrine. 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.”
However, the court added, “No hard and fast guidelines can be laid down in this regard, and each case has to be decided on its own facts.”
Thus, from its observations in paragraphs 10 and 16 it is evident that the Indian Supreme Court was not laying down any general principle except that the welfare of the child in such cases is of paramount importance.
The law on the issue is therefore still nebulous, and the predicament of young fathers whose child has been abducted by the mother is likely to continue.