A Supreme Court Bench headed by Justice Rohinton Nariman on Tuesday continued the hearing of a petition seeking guidelines on the trend of international parental child abduction over custody disputes.
"Suppose both the mother and the father are happily residing in the US. The mother then decides to come to India to practice Yoga. The child is torn between his two parents and taken away from a happy home. So, just because the child is with the mom, it is supposed to satisfy his best interest?", asked Justice Rohinton Nariman on Tuesday.
Prominent family lawyer Malvika Rajkotia, appearing as an intervenor in her personal capacity, had advanced,
"It is a misrepresentation to say this is not a gender issue. In 99% of the cases, it is the mother who is the primary care-giver. The judgments of this court have been consistent on maternal preference. It is in the interest of the child to be with the mother. The connection which comes from birthing the child is not a random connection, even if it may sound so. The mother gives up agency over her body, her career in carrying and delivering the child! This agency has to be recognised"
Justice Nariman described this as "an extremely extreme argument".
"In all these cases, the mothers are fleeing a bad marriage. Not for career or to do Yoga", responded Ms. Rajkotia.
"Suppose a father flees a bad marriage? Made bad by the woman on facts?", pressed Justice Nariman.
"Fathers are well-entrenched in their ecosystems. broadly speaking, they have jobs...", Ms. Rajkotia sought to submit.
"Not necessarily", interjected Justice Nariman.
"In most cases, these are stay-at-home moms. But there could be exceptions...if she is going to Reykjavík to be the CEO of Pepsi, then it is not good for the child, where I don't know the language, where I am myself lost...Where the fleeing father is the primary care-giver, then the best interest of the child is to be with the father", agreed Ms. Rajkotia.
"What you are saying may have been true 25 years ago. But we can't forget the fact that children are now increasingly becoming tools or instruments over whom spouses start negotiating...", remarked Justice Ravindra Bhat.
In the earlier part of the hearing, reference was made by the petitioners to a 2010 decision of the Superior Court in Ontario, Canada, disallowing the motion by a father to remove the child from its jurisdiction and bring him to India to experience a Hindu festival. In doing so, the court had relied on the opinion of an expert in the field of international family law- "It was his (the expert's) 'very firm opinion' that notwithstanding any order of a court in Ontario, if the father retained the child, 'it would be exceedingly difficult and perhaps impossible for the mother to secure V's return home from India'. Any court proceeding in India to secure the child's return would be exceedingly slow...The mother would have to spend considerable money on legal fees to try and secure the child's return-or even have access to the child in India. India does not comply with international norms concerning the return of internationally abducted children 'and it is a justifiably well-recognised safe haven for international child abductors.' India has chosen not to accede to the Hague Convention. 'India's failure to sign the treaty constitutes a strong signal that it does not consider the abduction of children from other countries to be a serious matter'..."
"The father is not an abductor...the father would be better off if he just abducted the child rather than come to the court", quipped Justice V. Ramasubramanian, even as Justice Nariman exclaimed at the phrase "international child abductors" employed in the decision.
This is a consideration by the Canadian court that if you send the child to India, it is a possibility...", observed Justice Bhat. "Whatever (mechanism) we set up, it will be all in the air...there are delays in courts...we have to instruct the lower court as to a 'summary' inquiry (while considering whether a child should be removed to the jurisdiction of the foreign court or not), otherwise there will be confusion", noted the judge.
Next, on the petitioner's side, the expert evidence rendered in a 2014 British case, in response to the English family court's query 'what is the legal position in India if the mother (who had applied to bring the child to India for a holiday) does not return to the UK', was quoted- "Father would have to file an application for custody of children under the provision of Hindu Minority and Guardianship Act. The proceedings may take from 1 year to 2 year and likelihood of success cannot be predicted as it will be dependent on Court's fact finding to ascertain best interest and welfare of the children in deciding the custody rights."
"In these cases, there is no amicus or independent counsel. The child's best interests are seen by the child's lawyer", remarked Justice Bhat. "'Best interest' of the child is a term of many uses, not just one", he added.
In yet another Australian case that the bench's attention was drawn to, the foreign court had stressed that India is not a signatory to the Hague Convention.
Justice Bhat inquired if there are any bilateral treaties governing the subject at hand. Indicating sections 13 (When foreign judgment not conclusive) and 44A (Execution of decrees passed by Courts in reciprocating territory) of the CPC, ASG Pinky Anand conceded, "India is the only country which is not a signatory".
"The philosophy of the Hague Convention is to fight against the multiplication of international abductions, based always on a wish to protect children by acting as interpreter of their real interests. Accordingly, the objective of prevention and immediate return corresponds to a specific conception of 'the child's best interests'...The same philosophy is inherent in the Hague Convention, which associates this interest with restoration of the status quo by means of a decision ordering the child's immediate return to his or her country of habitual residence in the event of unlawful abduction...", the counsel for the petitioner quoted the Grand Chamber of the ECHR.
Further, the discussion veered to section 25 of the Commissions for Protection of Child Rights Act, 2005 (introduced in pursuance of the UNCRC, to which India had acceded in 1992, and Article 11 of which obligates States Parties to take measures to combat the illicit transfer and non-return of children abroad)- the section provides for special Children's courts in each district of a state, for speedy trial of offences against children or of violation of child rights.
While Justice Ramasubramanian called it a "very important" provision, Justice Nariman commented, "The only thing is that it is criminal, the administration is criminal". Referring to the 1980 Apex Court ruling in Jolly George Verghese, the judge continued, "mens rea was read into the CPC. A mere inability to pay does not mean you go prison".
"Is there any substantive right of children under the (UNCRC) to which 25 would apply? In the absence of 25, can the court say it is driven by the obligation in Article 11?", asked Justice Bhat. "In case of customary law, it is clear. But where there is a convention, I am not sure", mused the judge. "That is the difference between our Article 253 (of the Indian Constitution) and Article 6 of the US Constitution. There, the moment you enter into a treaty, it is supreme law along with the Constitution", reflected Justice Nariman.
Earlier Today, Advocate Shadan Farasat had appealed to the Bench to rope in the Joint Secretary, urging that it is an international issue and requires proper coordination.The Bench agreed with him and asked him to inform a member of any commission for Women and Children.
Justice Nariman even told ASG Anand, appearing for the Centre, that she should not treat this as an adversarial litigation and that she should also provide suggestions.
"You can come up with the legislation whenever you want, he's not praying for that. But you should apply your mind constructively, take proper instructions from the persons who are involved, and tell us." said Justice Nariman to the ASG.
Justice Bhat told Ms. Anand, "While there are extreme cases, but guidelines should be present to govern the shades of grey present"
The Bench, however, did not agree with Farasat's suggestion about filling of forms, even if it's restricted to Indian passport holders. Justice Bhat states that such obligations cannot be imposed- "How many forms should they fill?"
On his suggestion of habeas corpus, ASG Anand objects, "This cannot be done". Justice Bhat counters to say, "Who are we to stop a habeas corpus?"
Justice Nariman says that some of these suggestions might be problematic due to their unenforceable nature- "This is completely unrealistic. How do we ensure these?". The judge stated that it is difficult to enforce such suggestions without any rules or statutes. Farasat advanced, "We are in the absence of a legislation. Which is why we need guidelines to take this forward."
Justice Bhat also questioned, "What are the numbers and where are they concentrated?". "If a matter is under Section 7 of Family Courts Act, then CPC shall not apply", iterated the judge.