Cross-Border Custody Battles: Indian Judicial Perspective On International Parental Child Abduction
- IJLLR Journal
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Utkarsh Rai, Narsee Monjee Institute of Management Studies, Indore.
INTRODUCTION
The phenomenon of International Parental Child Abduction (IPCA) presents unique and complex challenges in private international law. India, being a non-signatory to the Hague Convention on the Civil Aspects of International Child Abduction, 1980, addresses IPCA cases under the domestic framework of constitutional and personal laws. Typically, the parent left behind in another jurisdiction seeks the return of the child through a writ of habeas corpus under Articles 32 and 226 of the Indian Constitution. In such cases, Indian courts do not follow a singular statutory regime but rely upon principles from the Guardians and Wards Act, 1890 (hereinafter "GW Act"), the Hindu Minority and Guardianship Act, 1956 (hereinafter "HMG Act"), and well-established judicial precedents to assess the child's custody.
This article undertakes a judicial analysis of Indian courts' approach in IPCA matters, emphasizing the principles of Child’s best interest, Child Welfare, Comity of Courts, Citizenship and Nationality, and the Doctrine of Closest Concern. Analysing the key judgments, the article illustrates how Indian courts have weighed the best interest of the child in determining whether to repatriate children abducted into India.
CONSTITUTIONAL AND STATUTORY FRAMEWORK
India’s legal system provides a constitutional remedy in the form of a habeas corpus writ petition under Article 32 and 226 before the Supreme Court and the High Courts, respectively, seeking the release of a child allegedly abducted or wrongfully retained by one parent. These petitions are adjudicated with reference to personal laws, particularly the GW Act and HMG Act. While Section 13 of the GW Act, 1890 mandates that the welfare of the minor be the paramount consideration, Section 6 of the HMG Act deals with natural guardianship. However, these provisions are interpreted flexibly as per the case, especially in the context of international custody disputes.
