Supreme Court Seeks Centre's View On Entering Into Mutual Legal Assistance Agreement With USA On Child Custody Disputes

The Supreme Court, recently, issued notice to the Ministry of External Affairs and Ministry of Home Affairs indicating it to explore possibilities of entering into mutual agreements with the USA as the number of custody matters, wherein one of the parents living in the USA is flouting the orders of the Apex Court to return the child to the other parent residing in India, is on the rise."We also feel that even though India may not be a party to the Hague Convention, there may be possibility of entering into mutual agreements with USA as a number of such cases is increasing on account of Indian residents staying in the USA. We issue notice to the Union of India, Ministry of External Affairs and Ministry of Home Affairs for the said purpose returnable on 6th February, 2023", the Court observed.In such a child custody matter, a Bench comprising Justice S.K. Kaul and Justice A.S. Oka held an NRI father guilty of civil contempt as he had wilfully disobeyed to stick to the timeline recorded by the Supreme Court in returning the child to the mother, who is residing in India. The father would be heard on the question of sentencing on the next date of hearing, i.e., 6.2.2023. While holding him guilty for contempt of court, the Bench noted - “...the respondent (father) has completely betrayed the faith reposed in him by this Court.”The Counsel appearing on behalf of CBI apprised the Bench that a notice was issued to the respondent asking him to appear before it on 31.01.2023. It was submitted that if the respondent does not appear, steps will be taken under the Mutual Legal Assistance Treaty with the USA which is in force since 03.10.2005(which relates to criminal matters). The contempt petitioner (mother) got married to the respondent (father) and their son was born in 2007. The son was a citizen of the United States of America. The mother claims that after the birth of the son, they were sent to Canada to reside with the respondent's mother and sister. It appears that the mother was constrained to return to India in 2013, when she was thrown out of her in-law’s house. The father filed for custody of his son before a Canadian court, which passed an ex-parte order granting sole custody to him. A habeas corpus writ petition was filed before the Rajasthan High Court by the father. During the course of the proceedings, the parties reached a settlement and agreed to live together as per its terms. Subsequently, the father filed a contempt petition before the High Court for breach of consent order. The petitioner was convicted by the High Court. On appeal, the Apex Court set aside the order of conviction and remanded it back. Eventually, the High Court dismissed the habeas corpus as well as the contempt petitions. When the matter came up to the Apex Court, it passed a series of orders, including permission to the father to take his son to Canada from 01.06.2021 to 31.06.2021. He was categorically directed to return the child to the mother on 30.06.2021. The Supreme Court granted permission for the order to be mirrored. Accordingly, the father signed the document and consented to the passing of the mirroring order. When the mother moved the court in Canada to get the order mirrored, the father opposed it on the ground that he had signed the consent document under duress. Thereafter, in May, 2022, the parties entered into a settlement whereby they agreed to pray to the Canadian Court to set aside the orders granting custody to the father. The Supreme Court recorded the settlement and, inter alia, directed the father not to hinder the passing of the mirror order. The Apex Court’s order was mirrored by the court in Canada. The father flouted the terms of the order of the Supreme Court and did not show up to pick up his minor son on the agreed upon date. He came almost a week later, on 07.06.2022 and took his son to Canada. Till date the son has not been returned to his mother. In this backdrop, the contempt petition was filed. It is the father’s case, that his son had disclosed, back in India he was sexually abused by members of the mother’s family. The father had reported it to the authorities in the USA. A complaint has also been filed with the Federal Bureau of Investigation. The respondent submitted that until forensic interview is completed, the son would not be permitted to leave the USA. Moreover, it was contended that the child’ passport has expired and the same would not be renewed unless the forensic interviews are over. The Court noted that the respondent father had neither applied before the Apex Court for extension of time, nor before the authorities seeking renewal of the passport of the child. It inferred that the conduct of the father discloses that he never intended to bring back the child to India. Moreover, he had submitted before a Court in the USA that he had not submitted himself to the jurisdiction of the Supreme Court of India. It noted that at each stage he had defied the orders of the Supreme Court...

Supreme Court Seeks Centre's View On Entering Into Mutual Legal Assistance Agreement With USA On Child Custody Disputes

Sohini Chowdhury

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