The Judges Newsletter on International Child Protection, vol. XVI / spring 2010 Special Focus, Theme 1, India

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 High Court of Delhi, New Delhi The Honourable Mr Justice MANMOHAN High Court of Delhi, New Delhi India has not entered into any bilateral or regional agreements relating to family law issues. Such disputes have so far been dealt with by courts on the general principles of private international law. However, India has recently become a Member of the Hague Conference on Private International Law with the aim of benefiting from the work done by the Conference in the area of family law and legal co-operation. In 2007 India became a party to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, and also the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, both of which are relevant to cross-frontier family disputes. These Conventions facilitate the service of documents in disputes where one of the parties is in India and also the taking of evidence from witnesses present in one country when the testimony is to be used in legal proceedings in another country. These two Conventions therefore facilitate cross-frontier legal proceedings and ensure that parties have notice of legal proceedings and are in a position to respond and represent their case before the court. The Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance certainly provides for a simplified, effective and integrated procedure for recognition and enforcement of maintenance decisions between parties. However, until a political consensus evolves in India which enables us to sign this Convention and the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, let me inform you what the current Indian law provides, and what has been the approach of Indian courts in cases of child abduction. Indian law provides for the recognition and enforcement of judgments delivered by foreign courts. Section 13 of the Code of Civil Procedure of India provides a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except: (a) Where it has not been pronounced by a court of competent jurisdiction; (b) Where it has not been given on the merits of the case; (c) Where it appears on the face of the proceedings to be founded on an incorrect view of

international law or a refusal to recognise the law of India in cases in which such law is applicable;

(d) Where the proceedings in which judgment was obtained are opposed to natural justice; (e) Where it has been obtained by fraud; (f) Where it sustains the claim founded on breach of any law enforced in India. Further, Section 14 of the Code of Civil Procedure provides that the courts shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a court of competent jurisdiction unless the country appears on the record. But such presumption may be displaced by proving want of jurisdiction. However, it may be noted that it is for the parties to approach the court to get such recognition of foreign judgments. India has also entered into reciprocal arrangements for the execution of decrees passed by courts under Section 44 A of the Code of Civil Procedure.

Edited transcription of the oral presentation given during the Conference.

Copyright 2010 Hague Conference on Private International Law

The Judges Newsletter on International Child Protection, vol. XVI / spring 2010 Special Focus, Theme 1, India

Copyright 2010 Hague Conference on Private International Law

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.