by Jeremy D. MorleyThe Supreme Court of India has just issued a final judgment, dated December 6, 2017, in a case entitled Gupta v. Gupta, in which, in my opinion, the Court expressly endorsed international child abduction. Although the child’s left-behind mother had applied for habeas corpus promptly after her husband abducted the child from Virginia, USA, 2½ years then elapsed before the Supreme Court finally ruled on the case. Relying on that passage of time, during which it presumed that the child had become settled in India, it ruled that it was in the best interests of the child to stay in India in the sole custody of his father.
The facts as stated by the Court are as follows: The parties were of Indian origin and had married in India in 2010 but they had lived throughout their marriage in Virginia, USA. Their two children were both born in Virginia and had always lived in Virginia. They were U.S. citizens. The parents separated in 2014 in Virginia, with the children remaining with the mother in the marital residence. The father then employed what the Supreme Court described as “a nefarious strategy” to abduct the older child to India in early 2015.
The mother promptly filed an emergency motion in a Virginia court and obtained a temporary order giving sole custody of the child to her and ordering that the child be returned forthwith to Virginia.
A few days later, the father started a custody case in the High Court in New Delhi. The mother promptly appeared in that case and applied for a writ of habeas corpus to deliver the child to her so that she could return him to the USA. Almost a full year later, the High Court ruled in favor of the mother on the ground that the judicial comity required it to respect the right of the courts in the USA to make decisions concerning the welfare of the child.
The father appealed to the Supreme Court which permitted the child to remain in India pending the determination of the appeal. After more than 1½ years, the Supreme Court of India finally issued its ruling. It held that the child should stay in India in the sole custody of the father.
The basis of its decision was that the child had been in India for the previous 2½ years with his father and that the High Court ruling was not based on a plenary evaluation of the child’s best interests. The Court ruled that since the father was “the biological father” of the child, “his custody of the child can by no means in law be construed as illegal or unlawful” (even though the father’s conduct as described in the judgment was apparently felonious under U.S. federal law (18 U.S.C. 1204)).
The Court determined that “there is no convincing material on record that the continuation of the child in the company and custody of the [father] in India would be irreparably prejudicial to him.”
The child was apparently in a congenial environment in the loving company of his grand-parents and other relatives in India, was in a reputed school “and contrary to the nuclear family environment in US, he is exposed to a natural process of grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive and conducive development of his mental and physical faculties.” While a court has the power to return a child summarily, “immediate restoration of the child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise.” Here, “a child of tender years, with malleable and impressionable mind and delicate and vulnerable physique would suffer serious set-back if subjected to frequent and unnecessary translocation in its formative years.” It was therefore “imperative that unless, the continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated from the environment and setting to which it had got adjusted for its well-being.”
It ultimately ruled that the child ought to continue in the sole custody, charge and care of the father. It made no provision for any sharing of custodial responsibility and no provision for any access by the mother, whether in India or in the USA.
The ruling should serve as an extremely strong warning to potentially left-behind parents around the world that India is a safe haven for international child abduction.