REVISITING THE LAW RELATING TO INTER PARENTAL CHILD ABDUCTION

IN INDIA

- By Yajush Tripathi and Dhruvil Singh Rathod

Introduction

Inter-parental removal of children has become a common phenomenon in recent times owing
to factors such as Globalisation and increased transnational interaction. 1 It is a practice
generally wherein due to matrimonial discord between a couple, one of the parents takes
away the child from their place of living to a place where the other parent’s right to access the
child is hampered. This tussle between the two parents gives rise to litigation across the
jurisdiction of both countries, the place from where the child was removed from as well as
the place to which the child is moved and raises important legal issues which have been
determined by the courts from time to time. Indian courts are no exception when it comes to
dealing with such issues. In view of the fact that such cases are increasing in India, it
becomes pertinent to examine the approach of Indian courts in dealing with such issues. The
present paper seeks to analyse this approach of the Indian judiciary and enlist the various
issues and conflicts that remain till date.

The paper is divided into many aspects. It starts with introducing the concept of inter-parental
child abduction as it exists in India and as viewed globally. Thereby, the authors discuss the
question of jurisdiction which naturally would crop up in such cases. The authors then
analyse various case laws decided by Indian courts regarding the issue and trace a general
approach adopted by Indian courts in order to adjudicate cases over issues such as jurisdiction
of the court, custody of the child, etc. Moreover, the authors enlist various suggestions and
recommendations which can increase the efficacy of Indian courts in adjudicating cases over
such issues. Finally, an attempt is made to conclude the paper by incorporating the comments
and suggestions of authors on India’s judicial approach.

INTER PARENTAL CHILD ABDUCTION – WHAT IS IT?

1
Ann Laquer Estin, Marriage and Divorce Conflicts in the International Perspective, 27 Duke Journal
of Comparative & International Law 485-517 (2017)
Available at: https://scholarship.law.duke.edu/djcil/vol27/iss3/6.
Child abduction can be defined as the unlawful removal of a child to a jurisdiction other than
that of its habitual residence. A removal decided unilaterally by one parental responsibility
holder, without the other parental responsibility holder’s consent or subsequent approval,
constitutes child abduction2. Retention of a child beyond the agreed terms in a jurisdiction to
which it was lawfully removed is equated to wrongful removal therefore, if a parental
responsibility holder exercises visitation rights abroad and fails to return the child to its state
of habitual residence when such return is due, the parental responsibility holder is also
deemed to have abducted the child.3

If removal of child is done without the approval of the other parent, a parent taking children
from one country to another may, whether inadvertently or not, be committing parental child
abduction.4 The Hague Convention on the Civil Aspects of International Child
Abduction5defines removal or retention as wrongful where: (a) it is in breach of rights of
custody attributed to a person, an institution or any other body, either jointly or alone, under
the law of the State in which the child was habitually resident immediately before the
removal or retention; and (b) at the time of removal or retention those rights were actually
exercised, either jointly or alone, or would have been so exercised but for the removal or
retention.

The child abduction can be on account of various reasons – the mother being subjected to
domestic violence in the child’s home state, one parent seeking revenge from the another etc.
With the increased number of marriages between people from different countries, this issue
has become very common and is subject to much litigation in each country. In determining
such cases, various issues need to be considered- jurisdiction of the court, the law applicable
to determination of custody, application of international conventions etc.

DETERMINING THE JURISCTION OF COURT- THE PRELIMINARY ISSUE?

One of the significant conflicts is the conflict of jurisdiction between the state from which the
child is removed and to which the child has been temporarily resided. The issue of
jurisdiction in the cases of inter-parental removal of child is a much-debated issue, as that is

2
Cristina González Beilfuss , Encyclopedia on Private International law 297 (Elgar,2017).
3
Cristina González Beilfuss , Encyclopedia on Private International law 297 (Elgar,2017).
4
MALHOTRA, ANIL, To Return or Not to Return: Hague Convention vs. Non-Convention Countries vol. 48, Family
Law Quarterly, 297, 298 2014, https://www.jstor.org/stable/44734357?seq=1.
5
Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670,
1343 U.N.T.S. 89.
the first issue or conflict that has to be decided in pursuance of determining whether the inter-
parent removal of child was valid or not and resultantly, whether the custody shall remain
with the parent who abducted the child or not. The matter of jurisdiction not only includes
direct jurisdiction i.e. as to which court or forum shall be the one that should conduct
proceedings and decides the matter, but also includes the indirect jurisdiction i.e. as to
whether the court before which the inter-parental removal of child issue is brought shall
accept the order/decree/judgement of foreign court or not. 6 This issue seems that of legal and
procedural nature, but in the cases of child abduction, it shall not be treated as such, because
herein the growth and development if a minor is concerned, which shall be given primacy
over ant legal and procedural matter and thereby every legal and procedural rule including
conflicts of jurisdiction regarding this shall be interpreted in a manner wherein they do not
purport to a result wherein to maintain the sanctity of the rule, the welfare of child is
thwarted. Therefore, the primary way to determine the conflict of jurisdiction shall also be the
consideration of welfare of child, though the issue of jurisdiction seems very legal and
procedural in nature.

In which country the jurisdiction shall lie?

Jurisdiction is an interlocutory matter, which shall be determined at an early stage of

proceedings i.e., before all the evidence is obtained in discovery. 7 In the cases of inter-
parental removal of child, the matter is no different. Determining jurisdiction precisely means
as to which courts of which country shall appropriately deal with the case of custody of child
which has resulted from inter-parental removal of child. The determination of jurisdiction
also entails indirect jurisdiction, which means the court’s decision to recognise and enforce a
foreign judgement/order. So, it is of paramount importance to determine jurisdiction as early
as possible for early disposal of cases, so that hampering of child’s growth is kept to a
minimum. There are various factors attributable to which the jurisdiction is ascertained,
which are-

 The connection of the forum with the subject-matter of the dispute

 The welfare of the child
 Balancing the favours and interests of the parties involved
 Law governing the parties
6
Drobnig, U. M. , Hay, . Peter and Rheinstein, . Max (2018, April 12). Conflict of laws. Encyclopedia
Britannica. https://www.britannica.com/topic/conflict-of-laws
7
  Litigation costs and expenses bored by the parties

These are some of the many important factors which are considered so as to determine the
jurisdiction of the court which shall deal with the case and whether it would recognise and
enforce foreign judgement or not. Along with these factors, there are multitudes of legal
principles in accordance to which jurisdiction is ascertained such as forum convenience
principle, parens patriae principle, comity of courts principle and first strike principle.
Therefore, the first step to remedy the case of inter-parental removal of child is to ascertain
the jurisdiction of the court, which would deal with the case and decide whether to accept the
judgement of foreign court. Ergo, the conflict of jurisdiction is between the country from
where one of the parents has abducted the child and to which he has taken the child to. The
court wherein the case has been brought has to ascertain their direct jurisdiction as well as the
indirect jurisdiction, which means whether to accept the judgement of the court, which is
situated in the country from where the child has been abducted. Thus, this conflict of
jurisdiction between courts of India and the foreign country needs to be resolved as quickly
as possible, with the help of the above factors and legal principles, so as to that the
ascertained court could then dwell into the merits of the case and determine the custody of the
child. The assistance of the above factors and legal principles is indispensable as there is no
straight-jacket formula in India to determine the jurisdiction in this type of cases. The Apex
Court however, attempted to provide clarity on this aspect in the case of Surinder Kaur 8
wherein it stated that in such cases the law of courts having intimate jurisdiction shall apply.
The same however also depends on the facts of the matter and a consideration of welfare of
the child.

THE PRINCIPLE OF COMITY AND FIRST STRIKE APPLIED

After considering the preliminary issue of jurisdiction, the courts seek to address the next
pertinent issue which is regarding enforcement of orders of the foreign court in any. An
analysis of various case laws decided on this aspect shows generally the aggrieved spouse
approaches the courts of the child’s country of habitual residence which after a consideration
of various factors may pass orders for repatriation of removed child to the country of
residence or direct the other parent who has removed the child to be present before the court
on said hearing. It is pursuant to these orders that the aggrieved parent approaches the Courts
in India and requests the Indian courts for an enforcement of such orders. In order to get the

8
Surinder Kaur Sandhu v. Harbax Singh Sandhu, : (1984) 3 SCC 698.
orders enforced, the aggrieved party relies on two important principles – first, the principle of
comity of courts and second, the principle of first strike which recognise that the existence of
an international community of independent requires respect for each other’s laws9.

The first principle, that is comity denotes acts, practices, and rules of goodwill, amity, and
courteous treatment habitually observed by nation states in their interactions with one
another.10 While insisting on the court’s sole duty to apply its own law, the possibility is
contemplated that respect may be accorded for foreign nation’s laws.11 This concept of
comity cannot be overlooked in toto12 and due regard to such judgment have to be accorded
by another country. 13 While this principle finds a statutory recognition in the Code of Civil
Procedure14 which provides for the presumption regarding conclusiveness of a foreign
judgment if a certified copy of the same is presented before the courts, this is in relation to
judgments of the foreign courts and not orders and since in most cases enforcement of a
foreign order is being sought by the aggrieved, the courts do not consider Section 13 of the
Code. However, the Court has consistently held that the principle of comity must be
enforced except where some special or and compelling reasons, especially when interim or
interlocutory orders have been passed by foreign courts.

The second principle, i.e principle of first strike is also based on the same idea as that of
comity. It states that if the jurisdiction of foreign court is not in doubt, the first strike
principle applies wherein a substantive order given by a court at a prior point of time than
that of other court is given due weight and respect.15 Hence, primacy is given to the order of
court which decided the matter first.

While the courts try to enforce orders of foreign courts, there are several other factors that are
taken into consideration. It has been held by the Apex Court in a catena of judgments16 that
these principles are not absolute in nature and are subservient to considerations of what is in
the best interest of the child.17 It is on the basis of this that Indian Courts have refused to
9
SagiPeari, Savigny's theory of choice-of-law as a principle of 'voluntary submission, 64 The University of Toronto Law
Journal 106, 109 ,2014 https://www.jstor.org/stable/24311926.
10
Peter Macalister-Smith, ‘Comity’ in Encyclopedia of Public International Law, 671 (North-Holland 1992).
11
Joseph Story in his book Commentaries on the Conflict of Laws
12
Surya Vandanam v State of Tamil Nadu, (2015) 5 SCC 450.
13
Padi Trigunsen Reddy v. Jyothi Reddy, AIR 2010 AP 119.
14
Code of Civil Procedure, Section 13, 14.
15
Surya Vadanan v. State of Tamil Nadu (2015) 5 SCC 450.
16
Nithya Anand Raghavan vs .State of NCT of Delhi and Ors AIR 2017 SC 3137; Lozano v. Montoya Alvarez,
134 S.Ct. 1224 (2014).
17
Ruchi Majoo vs. Sanjeev Majoo,AIR 2011 SC 1952.
enforce the orders of foreign courts and observed that the concept of comity cannot be
overlooked in toto and due regard to such judgment have to be accorded by another country,
but certainly not at the cost of welfare of the children.18 The term “welfare” comprehends an
environment which would be most conducive for the optimal growth and development of the
personality of the child.19 Further, the principle of comity demands not its enforcement but a
grave consideration. 20

Even as regards the application of principle of first strike, it has been held that the invocation
of first strike principle as a decisive factor and that it would not apply if it undermines and
whittles down the wholesome principle of the duty of the Court having jurisdiction to
consider the best interests and welfare of the child, which is of paramount importance. If the
Court is convinced in that regard, the fact that there is already an order passed by a foreign
Court in existence may not be so significant as it must yield to the welfare of the child. 21
Besides the welfare of child, the court is also looks at exercising its parens patrie jurisdiction
prudently.

It is stated that the role of the Court in examining the cases of custody of a minor is on the
touchstone of principle of parens patriae jurisdiction, as the minor is within the jurisdiction of
the Court.22In Dr. V. Ravi Chandran v UOI,23 this Court had approved of the above principle
of parens patriae, as regards the welfare of the child being absolutely paramount over that of
the comity of courts. Even in Nithya Anand Raghavan v State of NCT of Delhi,24 the apex
court held that Court while exercising parens patriae jurisdiction is expected to give due
weight to a child's ordinary comfort, contentment, health, education, intellectual development
and favourable surroundings and the Court should also take the wishes of the minor child into
consideration and that this parens patriae jurisdiction of the court within whose jurisdiction
the child is located must be given greater weightage as opposed to a mechanical interpretation
of the principle of comity of courts.

18
Padi Trigunsen Reddy v. Jyothi Reddy, AIR 2010 AP 119.
19
Vivek Singh v. Romani Singh, AIR2017SC 929.
20
Dhanawati Joshi v. Madhav Unde 1997 (6) ALT 12 (SC).
21
Nithya Anand Raghavan vs .State of NCT of Delhi and Ors AIR 2017 SC 3137.
22
Paul Mohinder Gahun v. State of NCT of Delhi and Ors, 2004 (76) DRJ 688.
23
Ravi chandran, supra note 8.
24
Nithya anand, supra note 52.
In light of the same, the court therefore applies principle of comity and first strike whenever
possible. But this is subject to the welfare of child and exercise of parens patrie jurisdiction of
the court. If the court does not apply these and wishes to consider the matter on merits, it is
guided by various provisions of the Hindu Minority and Guardianship Act, 1956 and the
Guardianship and Wards Act 1890. However, the said decision is also subject to welfare of
child. The provisions of Sections 725,926,1227, 1328, 1729 and 2530 of the Guardianship& Wards
Act 1890 and Section 6 of the Hindu Minority and Guardianship Act, 195631, make it
manifestly clear that the paramount consideration is the welfare of the minor child 32 and not
statutory rights of the parents.33

ROLE OF INTERNATIONAL CONVENTIONS

In the cases of Inter parental child abduction, two international conventions have played a
key role- first, United Nations Child Rights Convention and second, The Hague Convention
On The Civil Aspects Of International Child Abduction.

The United Nations Child Rights Convention (UNCRC)34 mandates that in all actions
concerning children, the best interests of the child shall be of primary concern and the child
shall be provided the opportunity to be heard. Article 8 35 of the said Convention puts an
obligation on the state to respect the right of the child to preserve his or her identity,
including nationality, name and family relations as recognized by law without unlawful
interference and provide appropriate assistance and protection to re- establish such identity.
36
Article 9(3) of the said convention also directs the state parties to respect the right of the
child who is separated from one or both parents to maintain personal relations and direct
25
Guardian and Wards Act,1890,§ 7,No. 8, Acts of Parliament,1890 (India).
26
Guardian and Wards Act,1890,§ 9,No. 8, Acts of Parliament,1890 (India).
27
Guardian and Wards Act,1890, § 12, No. 8, Acts of Parliament,1890 (India).
28
Guardian and Wards Act,1890, § 13 ,No. 8, Acts of Parliament,1890 (India).
29
Guardian and Wards Act,1890, § 17,No. 8, Acts of Parliament,1890 (India).
30
Guardian and Wards Act,1890, § 25,No. 8, Acts of Parliament,1890 (India).
31
Hindu Minority & Guardianship Act, 1956,§ 6, No. 32, Acts of Parliament,1956 (India).
32
Nil Ratan Kundu v. Abhijit Kundu, (2008)9 SCC 413.
33
Preetam A. Eklaspur Vs. Vanishree, Writ Petition No.49517/2018, Chandrakala Menon v. Vipin Menon, 1993
(41) BLJR 536; Surinder Kaur v Harbax Singh Sandhu1984 AIR 1224, 1984 SCR (3) 422; Mohini v Virendra
Kumar, AIR 1977 SC 1359; CS Reddy v Yamuna, AIR 1975 Kant 134.
34
Convention on the Rights of the Child, resolution 44/25 , UN Body and OR Designation, 1989,
CRC/C/GC/7/Rev.1, 20 September 2006.
35
Id. At 18.
36
Convention on the Rights of the Child, Supra note 18.
contact with both parents on a regular basis, except if it is contrary to the child's best
37
interests. Article 11 of the said Convention also obliges the state parties to take measures to
combat the illicit transfer and non-return of children abroad. India ratified the said convention
in 1992 and the government also framed “National Charter for Children, 2003” which
emphasized on acting in the “best interests” of the child.

India ratified the convention on 11 December, 1992. and pursuant to the same, The Juvenile
Justice (Protection of Children) Act, 2015 38 has been amended. The Act encourages
restoration of the child to be reunited with his family at the earliest, and to be restored to the
same socio-economic and cultural status that he was in, before being removed from that
environment, unless such restoration or repatriation is not in his best interest. 39 In light of the
same, many times parties have argued that Indian courts must repatriate the child in order to
reunite him/her to the family. However, an analysis of various case laws shows that this
argument is not permitted if the repatriation compromises with the welfare of child and
therefore even if India has ratified the convention, it is not of much help to the parent
requesting for repatriation of child.

The Hague Convention On The Civil Aspects Of International Child Abduction40 deals with
the cases of interparental child removal. The Convention applies when a child under 16 years
is wrongfully removed or retained in a contracting state41. The aim of the convention is not to
resolve the issue but to place the parties back into the position where the child was not
abducted. As per Article 12 of the Convention42, the competent authorities of the state of
refuge are under the obligation to return children who have been wrongfully retained or
abducted, and there are very little grounds for the Country of refuge to refuse the return of
children. Article 743 of the said convention establishes the continuing jurisdiction of the
authorities of the contracting state in which the child was habitually resident immediately
before the unlawful removal or retention.

37
Convention on the Rights of the Child, Supra note 18.
38
The Juvenile Justice (Protection of Children) Act,2015, No. 02, Acts of Parliament, 2016 (India).
39
Kanika goal vs. State of Delhi and Ors, AIR 2018 SC3425.
40
Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670,
1343 U.N.T.S. 89.
41
Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670,
1343 U.N.T.S. 89.
42
Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670,
1343 U.N.T.S. 89.
43
Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670,
1343 U.N.T.S. 89.
 India is still not a party to the convention and the issue of accession to the 1980 Hague
Convention44 on the civil aspects of international child abduction and the matter is still under
consideration of the Government of India. Therefore, as per the general rules of International
law, India being a non-signatory is not bound to repatriate a child based on this convention
and can consider the case on basis of its domestic law45. The Indian Supreme Court clarified
this aspect in Dhanawati Joshi46 case wherein it was held that with regard to the countries that
are not signatories to the Hague Convention, the law is that the Court in the country to which
the child is removed, will consider the question on merits, bearing the welfare of the child as
of paramount importance. This was affirmed in Nithya Raghavan case47 wherein the court
affirmed that non-signatory countries can conduct elaborate proceedings in such case48. These
two conventions, therefore, have a limited impact on the decisions of the court to repatriate
the child.

SUGGESTIONS AND RECOMMENDATIONS

In India, there is no specific law to follow pertaining to determining the jurisdiction of courts
in child abduction cases. But there is a catena of principles of law which various courts of law
of India have adhered such as parens patriae principle, welfare of child is of paramount
importance, ordinary residence of minors, etc, in cases like ‘Minister for immigration and
multicultural and indigenous affairs v. B and Ors’ 49, and ‘Gaurav Nagpal v. Sumedha
Nagpal’50. Apart from these, the principle of law which has been followed the most be Indian
courts is ‘Intimate court’ principle’. Invoking these principles of law could not determine the
jurisdiction in each case, since the cases of inter-parental removal of child are complex
because it involves conflicts of laws and jurisdiction from two countries, a given set of
principles followed by one country cannot in each case ascertain the appropriate jurisdiction,
so to remedy that, there are certain legal mechanisms which India should follow, so as to
increase the possibility of ascertaining the appropriate jurisdiction in each case. The one
discourse from where India should derive its approach is ‘Private International Law’, as this
is the discourse which is resorted whenever there is conflict of laws and jurisdiction between

44
Hague Convention on Civil Aspects of International Child Abduction, 25th October 1980.
45
McKelvey, 2010:67
46
Dhanawati Joshi v Madhavi Unde
47
Nitya anand, supra note 52.
48
Prateek Gupta v. Shilpi Gupta, (2018) 2 SCC 309.
49
Minister for Immigration and Multicultural and Indigenous Affairs v B and Ors, (2004) 219 CLR 365
50
Gaurav Nagpal vs Sumedha Nagpal, (2009) 1 SCC 42 (SC).
two countries and in observance of India’s judicial approach, it is clear that the principles of
private international law has not been paid heed, as they have stuck with the ubiquitious
principle ‘Welfare of the Child is of paramount Importance’ 51. Therefore, below are the
mechanism that can be adopted by India in order to resolve the issue of jurisdiction in child
abduction cases:-

i. Forum Convienence Principle- According to UNDROIT principles of

transactional civil procedure, 2004, a forum would be considered ‘forum
convenience’ only when there would be substantial connection between the forum
state and the party or the transaction or occurrence in dispute’. 52 The substantial
connection could be gauged by various factors such as permanent abode of
parties, place of cause of action, place of living of minors, etc. Morever, in
‘Macshanoon v. Rockware’53, the court laid down a mcshanoon, adherence to
which can help any court to decide which is the convenient forum of the two
forums situated in separate countries. The onus of passing the test is on
respondent, wherein he has to fulfil two conditions according to the test, which
are- (a). He must satisfy the forum court that there exists another forum which has
amenable jurisdiction and can adjudicate the case substantially in a less
convenience manner, that too whilst ensuring justice, (b) The stay on the forum
state shall not deprive the appellant a legitimate personal or juridical advantage
which would be available to him if he would invoke the forum state jurisdiction.
Along with that, the court whilst determining the appropriate forum under ‘forum
convenience’ principle also looks for connecting factor ‘law governing the
relevant dispute’, this is vital as if a court who is not well-versed with the personal
laws of the parties would decide the custody of the child, then that would be
travesty of justice. Therefore, it is clear that according to forum convenience
principle, the burden of the proof is on the defendant that the forum wherein he
would invoke the jurisdiction would not cause any juridical and/or personal
disadvantage to the appellant, as this was reiterated in ‘St pierre v. South
American stores’54. The leading case of Gulf Oil Corp v. Gilbert carved a niche in
this principle, herein it was held that a court determines the appropriate forum

51
Lozano v. Montoya Alvarez, 134 S.Ct. 1224 (2014).
52
UNIDROIT Principles of Transnational Civil Procedure, 2004
53
Macshanoon v. Rockware , [1974] AC 436
54
St pierre v. South American stores Gath & Chaves) Ltd [1936] 1 KB 382
 under forum convenience principle on the basis of two factors- i. Private Interest
factors- This relates to procedural aspect of trial i.e. the jurisdiction shall lie with
that court wherein the witnesses, possibility of view of premises and all other
practical aspects can be easily, inexpensively, and expeditiously accessed and ii.
Public Interest factors- The jurisdiction shall lie with the court wherein congested
judicial dockets and other such logistical problems are avoided. 55So in totality,
forum convenience has turned out to be helpful for numerous countries as it looks
to find the appropriate forum i.e. the jurisdiction based on the fact, which forum is
more convenient and to determine the convenience, plethora of landmark cases
has already carved out a proper judicial approach. In India, this principle has not
been followed by any court whilst dealing with child abduction cases, as India is
not a great proponent of adhering to private international law’s principles, but they
should follow this principle, because this principle directly assist the court in
ascertaining the jurisdiction considering the convenience of parties. Indian
judiciary can consider applying this principle while staying akin to their
paramount principle that ‘Welfare of the child is paramount’.

ii. Comity of Courts principle- This principle urges the domestic courts to give due
consideration to foreign court judgements and law, when deciding a matter which
involves courts of two countries. This means that a court shall apply its own laws
but shall also give due regard and shall consider it to apply their laws as a mark
for respect towards their laws. This principle has not remained completely alien as
far as Indian judiciary approach is concerned. In landmark cases such as, ‘Dr Ravi
Chandran v. U.O.I’56 and ‘Surya Vandhan v. UOI’ 57. In the latter case, it was
extensively laid down that it is a self-restraining principle and is only applicable
when a foreign court is seized of a matter before a domestic court. In the former
one, it was laid down that following comity of courts principle does not mean that
a foreign court judgement has to be mandatorily accepted, the individual interests
of the child and parties have to be considered by the court. The different approach
with which it should be used in the context of judiciary is that the Indian court
shall pay heed to the fact that there exists an international community of

55
Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).
56
Dr. V. Ravi Chandran v UOI, 2009(84)AIC1
57
Surya Vandanan v State of Tamil Nadu, [Criminal Appeal No. 395 of 2015]
 independent states, thereby shall respect each other’s laws and shall also be open
to the possibility that for applying domestic laws may command respect of foreign
laws. Therefore, if this principle is carried out under the aegis of private
international law (Or conflict of laws) then the indirect jurisdiction can be
ascertained without any hassles.

iii. Nationalisation of private international law- This is a need of hour in India to

ascertain jurisdiction. According to it, the national lawmakers shall determine
whether or not a foreign law would be applicable i.e., applicability of it in national
framework. This sort of approach has been followed and resultantly there have
various instances of ‘Nationalisation of private international law’ in countries
i.e.,preleggi of the Italian Civil Code of 1864,58 and the Introductory Act to the
German Civil Code of 1896.59 Similarly, India shall also nationalise the private
international law in the form of accepting the foreign rules or laws in a way which
is akin to their national framework.

iv. Law on Child Abduction- India must also make a law which should lay down
the general principles that need to be followed in cases of child abduction. This
shall reduce the cases of forum shopping and preservation of welfare of the child
without being subject to the traumatic process of long drawn litigation. India can
also consider signing the Hague Convention, 1980 as recommended by the Law
60
Commission of India. This will not only act as a deterrent to malicious
abduction of child but also save the time of Indian courts which have to spend
hours deciding such cases.

Therefore, these are the mechanisms which Indian judiciary could incorporate so as to
determine the appropriate jurisdiction for the disposal of a case of child abduction, wherein
the welfare of the child is maintained. In essence, Indian judiciary shall attempt to find the
appropriate jurisdiction in accordance with forum convenience and forum non-convenience
principle, as by following that jurisdiction is ascertained which is not only beneficial for the
child but also the parents or the parties involved.

CONCLUSION
58
. preleggi of the Italian Civil Code of 1864
59
German Civil Code of 1896.
60
218th Law Commission of India report, 30 March, 2009.
The issue addressed through this paper is pertinent in contemporary times, as these kinds of
cases are prevalent in India wherein due to inter-parental removal of a child, a conflict of
jurisdictions and simultaneously a conflict of laws crop up, attributable to which tenets and
principles of both private international law and family law of India are invoked.

And, based on the arguments weighed, principles of law discussed, cases cited and
conventions elaborated, it can be concluded that in such types of cases, apart from the legal
interpretative approach, the decision in regard to aspects wherein children are concerned,
even remotely, therein too, a humanitarian approach is needed to be adopted and according to
it, the welfare of the child shall be given paramount importance in any circumstance and this
kind of approach shall supersede every legal rule and principle. Thus, this rule in consonance
with the legal principles mentioned above, if adopted by Indian courts, then the legal
framework regarding the child abduction issue can be improved and resultantly, after the
determination of jurisdiction through such an approach, adjudication of such cases will
naturally flow, thereby improving the legal framework of Indian law concerning inter
parental removal of a child in matrimonial disputes or child abduction cases by a single
parent in his/her place of residence whilst keeping the other parent oblivious to this
transmission.