Monday, December 21, 2009

Non-Resident Indians and International Child Abduction

Non-resident Indians always face the risk that, when their marriage breaks down, one spouse will run to India, often with the parties’ child or children, hoping for a better result in the Indian courts than in the American courts. Sometimes the children are used as hostage for a better financial settlement.

It is now reported that, in a case alleging parental abduction of a young child from England to India, the Supreme Court of India has ruled in favor of the left-behind parent. Anurag Mittal v. Rachana Aggarwal, Case No. 20333/2009, Supreme Court of India.

The reason that this is newsworthy is that Indian courts have in the past been reluctant to issue return orders in the case of the abduction of a child to India by an Indian parent. See for example the case of Sharma v. Sharma, Feb. 16, 2000, in which the Supreme Court of India refused to enforce a Texas custody order and required the lower Indian court to exercise custody jurisdiction even though the mother had removed the child from the family’s residence in Texas and had promptly commenced a case in India upon her arrival in that country.

The new case concerns a four-and-a-half year old girl who was born in England of Indian parents. The mother, who had also taken British nationality, took the child to India in September 2008. The mother’s father sought custody in India. The child’s father secured an order from the English High Court of Justice, Family Division in November 2008 requiring the child’s return to England. The Indian Supreme Court has ordered the child’s return to the U.K. It ruled that, “The decision has to be left to the British courts, keeping in mind the nationality of the child and the fact that both the parents had worked for gain in the UK and had also acquired permanent resident status there,'' adding that the English court had not directed handing over of the child to the father.

While the case is helpful it raises very considerable issues:

First, it has now been more than one year and three months since the abduction and the child has still not been returned from India.

Second, it is obvious that the left-behind parent has been compelled to incur very substantial legal expense in at least securing a favorable Indian order.

Third, apparently the left-behind father has not been able to see his child for the entire period of separation.

Fourth, the grounds upon which the decision was reached raise substantial questions as to their applicability to future cases, since the Court seems to leave substantial room for discretion by Indian judges in other international parental abduction cases.