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INDIA
Contribution from the Indian delegation:
Mr Prem Kumar MALHOTRA,
Additional Secretary, Government of India, Ministry of Law & Justice, New Delhi
The Honourable Mr Justice Vikramjit SEN
The Judges Newsletter on International Child Protection, vol. XVI / spring 2010
Special Focus, Theme 1, India
In Surindar Kaur Sandhu v. Harbax Singh Sandhu our Supreme Court held that, the modern
theory of conflict of laws recognises and in any event prefers the jurisdiction of the State
which has the most intimate contact with the issues arising in the case. Jurisdiction is not
retracted by the operation or creation of circumstances such as the circumstances as to
where the child whose custody is in issue is brought or for the time being lodged. Ordinarily
jurisdiction must follow upon functional lines. That is to say, for example, that in matters
relating to matrimony and custody, the law to be applied must be the one most closely
concerned with the wedding of the spouses and the welfare of the off-spring of the marriage.
As for Indian substantive law, the test that is applied for deciding cases of cross-frontier child
custody cases is the best interests of the minor child. In my view, a judge of any country
applying the same test should reach a similar in not identical conclusion.
We in India, especially in the Delhi High Court, encourage the concept of mediation to
resolve child custody and matrimonial disputes. In the Delhi High Court we have a special
mediation unit where lawyers having special experience and training help guide the parties
to amicably resolve their dispute.
Undoubtedly the First and Second Maltese Declarations, and the 1980 and 1996 Hague
Conventions represent giant strides forward in dealing with international family law
problems.
India has taken a few small steps by signing the Conventions referred to above. But these
are steps in the right direction. In my view, baby steps are difficult, but they are always a
precursor to giant strides.
In relation to the 1980 Hague Convention on Child Abduction, India has progressed a lot. We
have draft implementing legislation which is under circulation with all the stakeholders.
However, since there is likely to be a change of government (because elections are due to
take place within the next two months), until the new government takes over the political
decision on the implementing legislation will not be taken. However, that does not mean
that, as of today, foreign decrees are not enforceable; the provisions of law have been
explained by Justice Manmohan.
In addition to that I would just like to add, India recently amended the Code of Civil
Procedure to include the process of mediation. All civil judges, when they try a civil suit
including a suit relating to child custody, are first supposed to explore the possibility of
adopting alternate dispute resolution mechanisms before they actually decide the suit. If,
through alternate dispute resolution an amicable solution can be found, the judge is
competent to pass a decree in terms of the amicable solution.
We have an international centre for alternate dispute resolution which at the moment is
looking into commercial disputes, but we also have the intention of expanding its scope to
other disputes.