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The Supreme Court in its latest judgment in Prateek Gupta Vs. Shilpi Gupta rendered on December 6, 2017, following the earlier precedent in Nithya Anand Raghavan (2017) 8 SCC 454, has again authoritatively ruled that the issue of the repatriation of a child removed from its native country will be predominantly based on the welfare of the child principle notwithstanding the doctrines of “intimate contact and closest concern” which have only persuasive relevance. Digressing and distinguishing from earlier precedents in V. Ravi Chandran (2010) 1 SCC 174, Shilpa Aggarwal (2010) 1 SCC 591, Arathi Bandi (2013) 15 SCC 790 and Surya Vadanan (2015) 5 SCC 450, wherein children were directed to return to foreign homes, the Supreme Court as a Court of Record, has now disapproved the primacy accorded to Orders of Foreign Courts on the issue of custody of minor children and the “first strike principle” and principle of “comity of Courts” now finds no application. Foreign Court Orders directing return of children now find no favor. Determination of the welfare of the child now lies with domestic Courts. How far is this a true reflection of the “best interest of child” remains to be seen.

In this crossfire of different interpretations of the Supreme Court, the lost voice of the hapless child is drowned in the parallel litigation being conducted by his warring parents simultaneously before domestic and overseas jurisdictions, where conflicting claims are made over custody issues based on rival parental rights. The Government of India ratified the UN Convention on the Rights of the Child (UNCRC) on December 11, 1992 and which lead to the enactment of the Commission for Protection of Child Rights Act, 2005 (CPCRA) and the enactment of the 2015 amended version of The Juvenile Justice (Care and Protection of Children) Act, 2005 (JJ Act). But, to what end.

The JJ Act now defines “best interest of child” to mean the basis for any decision taken regarding the child, to ensure fulfillment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development. Further, the JJ Act now enshrines the principles of family responsibility, repatriation and restoration, unless it is not in the best interest of the child. This is to accord statutory recognition to the Preamble and Articles 1 to 20 of the UNCRC wherein, every child has rights to a nationality, name, family life, family relations, being cared by both parents and not been separated from his or her parents. The UNCRC also prescribes State Parties an obligation to provide family reunification in a positive, humane and expeditious manner, when children are separated from parents. The National Charter for Children, 2003, of the Government of India, affirms the attendant duties of inculcating in children a sound sense of values directed towards preserving and strengthening the family.

It is in this backdrop in terms of the UNCRC ratified by India, the important determination of ensuring the best interest of the child in a process of adjudication ought not to focus on the contesting rights of parents. The emphasis should be on the right of the child to a family life to enable development to full potential, by being nurtured in the biological family. The child undoubtedly has a inherent right to family life and to be cared by both his parents and not to be separated from them or his siblings. The determination of the child’s place of residence by judicial review ought to be in a “positive, humane and expeditious manner”. In the din and cacophony of a conventional adversary litigation between contesting spouses and claims to establish superior parental rights, the “principle of repatriation and restoration” of a child to be reunited with his family, as enumerated in the JJ Act, is pushed into oblivion. Children are separated and pushed to homes in separate countries. This is not in consonance with the “principle of best interest” ingrained in the JJ Act. The welfare of the child is lost.

Despite 30 million non-resident Indians in 180 countries, of a total population of 1.2 billion, Indians constitute the largest diaspora in the world with immense potential of cross border family disputes. If India is not to be a signatory to the Convention on the Civil Aspects of the International Child Abduction, acceded to by 98 countries, it ought to atleast follow principles of UNCRC endorsed and ratified by it. A favourable interpretation of child rights based on laws of the countries of their family home with emphasis on right to family life ought to be the decisive factor. Preferences to parents choosing jurisdiction for child custody battle grounds ought to be ignored. A clear judicial precedent in this regard is now extremely necessary for consolidating the much needed law and providing a clear path for other Courts to follow.

*The author, a practicing lawyer, has to his credit seven books pertaining to issues of private international law. He is the co-author of, “India, Inter-Country Parental Child Removal and the Law,” (Lexis Nexis 2016). He can be reached at Views express herein are personal. 

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