Procedural inequity in cross-border custody disputes

We often consider procedural law to be neutral to the outcome of a dispute and to be gender-agnostic. However, a deeper look indicates that procedure is as critical to the outcome of a litigation as substantive law.

In Common Law countries, civil procedure typically determines the jurisdiction of all civil claims and permits a party to file a claim in a jurisdiction where the defendant resides or where the cause of action has occurred. The Criminal Procedure Code (CrPC) has provided the territorial jurisdiction within which the police can investigate an offence and a magistrate can take cognizance.

However, over the years, in recognition of the fact that territorial jurisdiction influences both access to justice and ability to litigate, in many fields of law - including trademark and arbitration - the scope of territorial jurisdiction of the court has been expanded.

The principle of forum non conveniens has always permitted an aggrieved party to urge a court having territorial jurisdiction to not exercise it when an alternative and more convenient forum for both parties exists. This equitable principle is also based on the recognition that the territorial jurisdiction of courts has an impact on the ability of a party to litigate and the outcome of the litigation.

The arena of personal law has also seen a change in both substantive and procedural law starting from the 1950s and corresponding to the adoption of the Indian Constitution. Issues pertaining to divorce, succession, adoption, custody and maintenance issues were governed by uncodified personal law prior to independence.

The First Law Minister of Independent India Dr BR Ambedkar proposed amendments to Hindu personal law, which was uncodified at the time to bring it in conformity with the fundamental rights. A few years thereafter, the Hindu Marriage Act and the Hindu Adoptions and Maintenance Act were passed by the legislature. These two laws gave women the right to divorce and the right to seek custody of the child. The statute introduced the concept of the wishes of the child in determining custody, which was further evolved by the courts into the theory of welfare of the child.

The 1980s in India witnessed the recognition of growing domestic violence and deaths on account of mental and physical cruelty meted out to women. By the Criminal Law (Second Amendment ) Act, 1983, Section 498A came to be inserted in the Indian Penal Code (IPC), criminalising matrimonial cruelty.

During this era, India among many other countries refused to sign the Hague Convention on Civil Aspects of International Child Abduction signed in the 1980s.The said Convention provided for an arrangement between signatory countries for the return of children taken from one country to another by one parent, without or against court orders and without or against the other parent's wishes. The Convention envisaged that after the return of the child, the custody proceedings for the child’s welfare would be heard in the country from where he was so removed. The design of the convention has two inherent presumptions: (a) removal of a child from his habitual residence without consent of the other parent and/or court is wrongful (b) being returned to the jurisdiction of the court from where a child was removed is in the child’s best interest. And because the Convention is gender-neutral, it flattens the asymmetrical realities of gendered violence and power in the institution of marriage in patriarchal societies.

Most Indian women married abroad at the time were homemakers and were on dependant visas. They generally had no independent capacity to approach a court there as they were financially and socially dependent on their husbands. It is in these circumstances of economic and social isolation that they returned to India with their children. In not singing the Hague Convention, the Government of India was well aware that to recognise this as child abduction would be to legally deprive these women their only hope for safety and equal access to justice with the support of their family, in their home country.

This process, which I seek to call feminising Family Law, entered another phase after the Vienna Accord of 1994, the Beijing Declaration and the Platform for Action (1995) that acknowledged that domestic violence is undoubtedly a human rights issue. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women recommended that state parties should act to protect women against violence of any kind, especially the one that occurs within the family. This acknowledgement of violence within the family led to the amendment of the Hindu Marriage Act in 2003, whereby the jurisdiction clause to present a petition for divorce, maintenance and custody was amended to include sub clause iii (a) permitting women to file cases where they are residing on the date of presentation. This was an acknowledgment that the wife/mother ought to be accorded preference to choose a jurisdiction convenient to her.

This jurisdictional expansion from the usual civil law mandate of where the defendant resides and where the cause of action occurs, is also seen in the The Protection of Women from Domestic Violence Act, 2005 (DV Act), which permits a woman to approach the magistrate in the area where the aggrieved person resides even temporarily [Section 2 (i) DV Act].

Sadly, however, when it comes to cross-country custody and guardianship cases, the Hague Convention remains unchanged over the decades. The Hague Convention, ostensibly made for protecting children, seems to be preoccupied with returning them to the jurisdiction from which they were removed and does not explicitly acknowledge domestic violence as an exception to repatriation.

As discussed above, India chose not to be a signatory to this Convention in the 1980s, cognisant of the fact that it is mostly immigrant mothers who return home in situations of domestic violence (irrespective of their educational or economic status). Forcing the repatriation of children to the place of matrimonial residence for the custody case to be tried is virtually denying women access to justice.

In Sarita Sharma v. Sushil Sharma, a mother had returned to India from the Untied States with her two children. Her husband, armed with a foreign court decree, had sought their repatriation/custody. The Supreme Court held that the decree of a foreign court granting custody to the husband/father was only to be treated as one of the factors in determining the custody of the children, which would be determined on the principle of “welfare of the child” by the custody court in India. In the case of Ruchi Majoo v. Sanjeev Majoo (2011), the Supreme Court again held that simply because a foreign court has taken a view on any aspect concerning the welfare of a minor, it is not enough for a court in this country to shut out an independent consideration of the matter.

However, the jurisprudence of the Supreme Court appears to have undergone a change in the past decade, permitting the repatriation of children to the country from where they were removed (without court orders or consent of the other parent) on the principle of comity of courts. In Arathi Bandi v. Bandi Jagadrakshaka Rao & Ors, Surya Vadanan v. State of Tamil Nadu, and Rajeshwari Chandran Shekhar Ganesh v. State of Tamil Nadu, the Supreme Court has directed repatriated of children in the Habeas Corpus jurisdiction with a cursory and summary evaluation of the child’s welfare, based on considerations such as nationality, prior pending litigation and citizenship. These considerations negate the socio-economic realities of immigrant mothers and the gendered nature of mental and physical violence in marriages. The Court has not considered a mother's ability and access to justice as an integral concomitant to the welfare of a child in these cases.

The Court has not even considered the balance of convenience in these cases. The physical and financial mobility of men in society is far more than that of women and their flexibility to access courts and to get competitive counsel is better. Therefore, trying a custody case in a jurisdiction of the mother’s convenience is less likely to impact the father. Forcing the repatriation of children and women to the jurisdiction of courts of countries that they have left would only deny them access to justice.

While the process of feminising procedure to make it sensitive to the needs of the party who is more vulnerable is being reflected across jurisdictions in trademark and arbitration of commercial disputes, it is sad that the Apex Court has reversed this trend in cases related to cross-border child custody cases. It is also surprising that the international community has not reconsidered the Hague Convention on civil aspects of child abduction in light of the evolving understanding of domestic violence and the access to justice being skewed against women in patriarchal societies. The place of convenience to the mother must be allowed to be the place of jurisdiction for child custody litigation in cross border custody cases.

This view would also be in consonance with Indian law as discussed above. Alternate dispute resolution methods including arbitration and mediation, with specialised family law arbitrators/mediators from cross-cultural backgrounds could probably be explored. This could create a space where the parties and the child could be heard more effectively in cross-border custody cases.

Nandita Rao is a Senior Advocate.