Introduction of Conflict of Law

INTRODUCTION OF CONFLICT OF LAW

It is proposed to discuss the conflict of laws aspects of the law relating to children. This involves separate but related factors pertaining to parental rights and guardianship, legitimacy and adoption. Foreign legal system also contains rules on legitimation. The rule in England, and most European countries is that an illegitimate child is automatically 'legitimated' if it is natural parents subsequently marry. This question is of little importance in India as such legitimation is only permissible in the State of Goa and the Union Territories of Daman & Diu, where the erstwhile Portuguese Code continues to apply. 1

Each of the three aspects considered, namely, parental rights rights and guardianship, legitimacy and adoption raises two problems particular to conflict of laws: when does a court have jurisdiction over such matters, and whether and when, orders of foreign courts on such matters will be recognised.

There are very few Indian cases on this subject, and it is, therefore proposed to set out, in brief, the effect of international conventions on the subject, and then set out the law in England and some Common law countries before considering Indian decisions. The international conventions are set out even though India has not implemented them as its provisions show how the subject is treated generally, which may offer some guidelines for our courts.

In ch 9, para 9.24 above, the law in India as to when an order of foreign court regarding the custody of a child will be recognized as also the effect of taking away a child from its lawful custody ('child abduction’) has already been considered.

1 1 It could be contended that among Christians in India, legitimation, if permitted by canon Law, would be recognized. However, there seems to

be no decision on the subject

INTERNATIONAL CONVENTIONS

There are several international conventions on the subject; India has not implemented any of them.

1. Hague Convention on the Civil Aspects of International Child Abduction 1980. 2. Hague Convention on Protection of Children and for Co-operation in respect of Inter-

country Adoption 1993. 3. Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-

operation in respect of Parental Responsibility measures for the Protection of Children 1996.

4. Hague Convention on Recognition and Enforcement of Decisions relating to Maintenance Obligations towards Children 1958.

5. Hague Convention on Recognition and Enforcement of Decisions relating to Maintenance Obligations 1973.

6. Hague Convention on the International Recovery of Child Support and other forms of Family Maintenance 2007.

The provisions of the Convention on the Civil Aspects of Child Abduction 1980 , have been briefly noted in para 9.24 above.

The Hague Convention on Protection of Children and for Co-operation Respect of Inter-country Adoption 1993

The provisions of the Convention emphasize the welfare of the child. Its principal features are:

1. It only covers adoptions which create a permanent parent-child relationship.2

2. An adoption can only take place after: (a) the competent authorities of the 'state of origin' have determined that the child is adoptable, that inter-country adoption is in the best interests of the child, and the necessary permissions from the parents and competent authorities have been secured, that such consent has been obtained without the payment of compensation, the consent of the mother has been given only after the birth of the child, that the child, if it is old and mature enough, has been consulted and its opinions considered3 and (b) after the competent authorities of the 'receiving state' have stated that the adoptive parents are eligible to adopt,

3

2 The Hague Convention on Protection of Children and for Co-operation in respect of Inter-country Adoption 1993, art 2(2).

3Ibid, art 4.

have been consulted and that the child will be authorized to enter and reside permanently in that state.4

(3) An adoption can only take place if these formalities have been completed before the child attains the age of 18.5

(a) An adoption in accordance with these rules will be recognized by operation of law in all contracting states,6 unless such recognition is manifestly contrary to its public policy 'taking into account the best interests of the child'?

(b) Recognition of the adoption includes recognition of the legal parent-child relationship, parental responsibility of the adoptive parents for the child, and the termination of the pre-existing legal relationship between the child and its mother and father.8

Australia and the United Kingdom have implemented the Convention and Canada was in the course of doing so in 2004.9 In all, some 76 countries have adopted the Convention.

The Hague Convention on Jurisdiction, Applicable Law; Recognition and Enforcement and Co-operation in Respect of Parental Responsibility and Protection of Children 1996

The principal features of the Convention are:

1. Its object is to determine which state has jurisdiction to t. measures to take protect the person or property of the child, to determine which law is to be applied in exercising jurisdiction a to parental responsibility and to provide for the recognition and enforcement of measures for the protection of children in all states 10

2. The Convention applies to children from birth till they attain the age of 18.

4 The Hague Convention on Protection of Children and for Co-operation in respect of Inter-country Adoption 1993, art 5

5Ibid, art 3.

6 Ibid, art 23.

7 Ibid, art 24.

8 Ibid, art 26.

9 See para 12.6 below.

10 the Hague Convention on Jurisdiction, Applicable Law, Recognition and Enforcement and Co-operation in respect of Parental Responsibility and Protection of Children 1 986 art 1. /

11Ibid, art 2.

3. The measures to be taken include the attribution and termination of parental responsibility, rights of custody, guardianship, placing the child with fosrer parents, ete. 12

4. The Convention does not deal with the establishing or contesting the parent-child relationship, adoption or trusts.13

5. The court having jurisdiction is the court where the child ‘habitually resided’6. Such a court may, however, if it is of the opinion that the courts in another state would be

better placed to assess the best interests of the child, refer the matter to such court,I5 and that court may accept such a reference. 16

7. In certain cases, the court dealing with proceedings for the divorce or annulment of the marriage of parents of a child habitually living in another State may pass orders of custody, etc, of the child. I?

8. Courts have the power to pass interim measures or provisional measures for the protection of the child in cases where the child is in that country18.

9. No court will entertain proceedings for the protection of a child if proceedings for the same purpose have already been adopted in the courts of another contracting state.19

10. Courts will apply their own law in exercising jurisdiction, though in exceptional cases they may take into consideration the law of a state with which the situation has a substantial connection.2o

11. The exercise of parental responsibility is governed by the law of habitual residence of the child.21 In such cases, the law means the law of that country without considering its conflict of laws rules.22 In countries where different territorial units have different systems

12 The Hague Convention on Jurisdiction, Applicable Law, Recognition and Enforcement and Co-operation in respect of Parental Responsibility and Protection of Children 1996, art 3.

13Ibid, art 4.

14 Ibid, art 5.

15 Ibid, art 8.

16 Ibid, art 9.

17 Ibid, art 10.

18 Ibid, arts 11 and 12.

19 Ibid, art ] 3.

20 Ibid, art 15.

21 Ibid, art ] 7.

22 Ibid, art 21.

of law, what has to be considered is the law of the territorial unit where the child habitually resides.23

12. Orders passed by the courts in accordance with the Convention will be recognized in all countries unless: (a) the court did have jurisdiction according to the Convention; or (b) (except in cases of urgency) if the child has not been consulted; (c) except in case of urgency) the parent was not given an opportunity to be heard; or (d) recognition is manifestly contrary to public policy.24

None of the Common Law countries appear to have implemented this Convention; 16 countries have, however, adopted the Convention.

Hague Conventions on Decisions Relating to Maintenance 1958, 1973 and 2007

There are three such Conventions: The 1958 Convention Hague Convention on Recognition and Enforcement of Decisions relating to Maintenance Obligations; the 1973 Hague Convention on Recognition and Enforcement of Decisions relating to Maintenance Obligations towards Children; and the 2007 Convention on the International Recovery of Childs Support and other Forms of Family Maintenance, The 1958 Convention was adopted by 20 countries and the 1973 Convention by 22 countries. The 2007 Convention has so far not been adopted by any country. India has not adopted any of the Conventions. As the 2007 Convention replaces the earlier two Conventions, only the principal provisions of the 2007 Convention are briefly noted with the object of setting out how the subjects treated in other countries.

1) The object of the Convention is to ensure the effective international recovery of child support and other forms of family maintenance25

2) The Convention applies to maintenance obligations arising from a parent-child relationship towards a person under the age of 21 years, and decisions for spousal support when the claim is made along with a claim for the maintenance of persons under 21.26

23 Ibid, art 47. The situation where in the same country, and in the same territorial different persons are governed by different laws depending on their religion does not to have been dealt with specifically but, presumably a reference to the law of a co where the child habitually resides would mean the law that will be applied in such co to that child which would involve considering the religion of its parents.

24 The Hague Convention on Jurisdiction, Applicable Law, Recognition and Enforce and Co-operation in respect of Parental Responsibility and Protection of Children 1 art 23.

25 Article 1, 2007 Convention.

26 Article 2, 2007 Convention. The scope may be limited by countries to persons under

3) The Convention provides for the establishment by each country of a Central administrative Authority to which applications for maintenance can be made and for co-operation between such Authorities in different countries.27

4) When a decision is made in a Contracting State where the creditor is habitually resident, proceedings to modify the decision or to make a new decision cannot be made by the debtor in any other country unless, inter alia: (1) there is an agreement in writing between the parties about the jurisdiction of the latter country; or (2) the creditor submits to the jurisdiction of that latter country.28

5) A decision by a judicial or administrative authority in one contracting state shall be recognised in other contracting states, generally, if: (1) if the respondent was habitually resident in the country of origin when the proceedings were brought; or (2) the respondent had submitted to the jurisdiction either expressly or by defending the proceedings on merits without contesting jurisdiction at the first available opportunity; or (3) the creditor was habitually resident in the country of origin when the proceedings were brought.29

6) A court may refuse to recognise a decision if recognising it would be manifestly incompatible with the public policy (ordre public) of the State concerned, if the decision was obtained by fraud in connection with matters of procedure, proceedings between the same parties and for the same purpose are pending before the State addressed and had been instituted earlier, if it is incompatible with another decision which fulfils the conditions specified in the Convention for recognition the proceedings were contrary to natural justice or the authoriry given the decision did not have jurisdiction to make it within the meaning of what is set out in (5) above.30

POSITION IN ENGLAND

(1) GENERAL RULE; GUARDIANSHIP

English law, as it stands today, is largely statutory; what would be more useful in this work is the position at Common Law as the statutes in force in England are in force only in that country. The position prevalent today is, however, set out as the statutes, in some cases, follow the Common Law rules.

What is considered is the general rule applicable, when English courts exercise jurisdiction to appoint guardians, and the effect of foreign guardianship orders. When, and the extent to which, foreign custody order are noted, has already been discussed.31 What is then considered is the question of when children are legitimate, and the effect of legitimacy under foreign laws, and the question of foreign adoption orders.

General Rule -The basic rule in modern English law is:

The responsibility of a parent as regards the person and upbringing of his minor child is not affected by the domicile or nationality of the parties, but is governed wholly by the law ofEngland.32

The rule is formulated bearing in mind current usage so that 'parental responsibility' replaces the older phrase, the rights and duties of a parent and instead of using the notion of 'custody' what is used is 'upbringing’; 'child' in the rule means a minor under 18.33

English courts will apply English law on questions of parental responsibility even if the child is domiciled abroad or is the national of foreign country, or ordinarily resident outside the country.34

27Articles 4-17, 2007 Convention.

28 Article 18, 2007 Convention.

29Article 20, 2007 Convention. There are also other situations when the decision must be recognized 'Creditor' means the individual to whom the maintenance is owed or alleged to be owed: art 3 (a).

30Article 22, 2007 Convention.

It has been held:

It is quite plain that if the child had been a British subject, the Court of Chancety would have had jurisdiction to make an order as to its custody, maintenance or education, even though the child itself was outside the country and in a foreign land .... So also if the child was physically present here, the Court of Chancery would have had jurisdiction over it (just as the Queen's Bench would on habeas corpus), even though the child was not living here and only passing through on a journey. That happened recently when a child in transit was stopped in England from being taken to Russia and sent back to America.35

31 See para 9.24 above.

32 Dicey, Morris & Collins, Conflict of Laws, fourteenth edn, r 95, p 969.

33Ibid, para 19-003.

34 Ibid, para 19-004.

35 Per Lord DenningMR, in Re P(GE) (An Infant) [1965] Ch 568, p 582, [1964] 3 All E 977(CA).

The paramount consideration in English law is the welfare of the child, and this rule applies in all cases, not only between parents, but between parents and strangers, and between strangers.36

As far as the movables of the child are concerned, this question is governed by the law of the domicile of the child, but subject to the discretion of the court; so, in a case where a child was domiciled in France, an English court what was not obliged to hand over amounts in a fund in court to the father of the child as the legal guardian in accordance with French law; the court was entitled to demand evidence that the amount would be properly applied for the benefit of the child, and if the child was otherwise well provided for whether it would be better to retain the amount in court.37

There appears to be no decision on the point, but it has been suggested that the rights to the immovable property of the child would be governed by the lex situs.38

Jurisdiction of English Courts

The High Court in England has an inherent jurisdiction as to children to make any order, other than an order appointing a guardian, or an order as to the care or education of, or contact with, the child if, when the proceedings are commenced, the child is a British subject or is ordinarily resident or present in England. In these circumstances, the court may also appoint as guardian. 39

The power to appoint a guardian in such cases is discretionary, and the court will exercise it sparingly if the child is not in England, or has h brought here by 'kidnapping it', that is removing it from another jurisdiction by force or stealth.40

[he court will also consider whether it would be more appropriate if a foreign court should decide the issue. In a case where an Italian court had awarded the custody of the child to the father, and the father desired to keep the child in England, and it was shown that the Italian court would apply English law, the court decided to exercise jurisdiction.41

Where the child was in Scotland, and divorce and custody proceedings where pending in Scotland, the court decided that the issue should be tried in Scotland

36 J v C [1970] AC 668, [1969] 1 All ER 788.

37 Re Chatard's Settlement [1899] 1 Ch 712. In fact, as no satisfactory evidence was forthcoming, it was ordered that the amount should be retained in court, and the income accumulated.

38 See Dicey, Morris & Collins, Conflict of Laws, fourteenth edn, para 19-009.

39 Dicey, Morris & Collins, Conflict of Laws, fourteenth edn, rr 97(1) and (3), p 972; See also Re Willoughby (An lnfimt) [1885] 30 Ch D 324 (CA).


41 Re Kernot (An Infant) [1965] Ch 217, [1964] 3 All ER 339.

42 Re S (M) (An Infant) [1971] Ch 621, [1971] 1 All ER 459.

Courts apply the same rules as they apply in civil suits if a question arises as to whether a foreign court should try the matter.43

In all cases, however, English courts apply English domestic law.44

English courts also have the jurisdiction to pass maintenance orders the respondent is duly served.45

Foreign Maintenance and Guardianship Orders

Foreign Maintenance Orders are enforced if they are for the payment of money; the test is that applied to all foreign judgments.4 A fore' maintenance order will not be executed If the foreign court is empowered to vary it as such an order is not a final order.47 A foreign order opposed to public policy will not be enforced such as orders granting permanent maintenance to an illegitimate child, or a posthumous affiliation order.48

Under English law, a foreign court would be regarded as having jurisdiction to appoint a guardian of a child who is a national of that country, or domiciled there, or ordinarily resident there or present there and such orders would be recognized in England, and a guardian appointed in such cases would have the same powers as a foreign parent.49

12.4 POSITION IN ENGLAND: (2) LEGITIMACY AND LEGITIMATION

Legitimacy

The state of illegitimacy was, in the past in the West, a state which not only imposed a social stigma, but deprived a person of rights of succession

43 De Dampiere llDe Dampiere [1988] AC 92, [1987] 2 All ER 1, where the House of lords reversing the courts below, held that whether proceedings for divorce in an English courts should be stayed because proceedings for divorce had been commenced earlier in France was to be decided on the same principles as the rule offorum non conveniens in other cases and if foreign proceedings had been commenced earlier, the proceedings in England should ordinarily be stayed if the court finds that substantial justice would be done in such proceedings even if proceedings in England were financially more beneficial to the wife. For the rule of forum non conveniens generally in England, see para 8.12 above; an n in matrimonial matters, see para 11.18.

44 Dicey, Morris & Collins, Conflict of Laws, fourteenth edn, r 97(10), p 975, and pare 19-051.

45 Ibid, r 102 (1), P 1029. And see Re Dulles'Settlement [1951] Ch 842, [1961] 2 All ER69 (CA).

46 See Dicey, Morris & Collins, Conflict of Laws, fourteenth edn, para 19-146; see also ch 9 above.

47 Harrop v Harrop [1920] 3 KB 386; ReMacartney [1921] 1 Ch 522.

48 ReMacartney [1921] 1 Ch 522.

49 Dicey, Morris & Collins, Conflict of Laws, fourteenth edn, r 983, pp 991-992. The authorities relied upon include Stuart v Bute (1861) 9 HLC 440; Nugent v vetzera (1866) LR 2 Eq704

the estate of the father. This has now changed markedly in England courts can, under the law, declare a person to be legitimate, but an

English court can only do so if the applicant is, when he commences year the Proceedings, domiciled in England, or was, for throughout a period of one year before the commencement of the proceedings, habitually resident England.

A child is, or is presumed to be, legitimate if it is born anywhere in the world in 'lawful wedlock'. In English law, a child conceived before marriage is regarded as legitimate if born after the parents were married, and so also a child conceived before, but born, after, the parents were divorced.

If the parties are judicially separated under an order of a court when the child is born, the presumption of legitimacy cannot be drawn.

Traditionally, in England, neither spouse could give evidence against the other proving either access or non-access; the presumption could, however, be rebutted by other evidence to prove either access or non-access. the evidence that the husband used contraceptives during marital intercourse did not rebut the strong presumption of legitimacy which was protect the interests of the child.

In England, by statute, children born after artificial insemination are legitimate even if the donor is not the husband, unless it is proved that the husband did not consent to the insemination.It was held, however, that this rule only applied if the parties to a marriage were a man and a woman, and did not apply where the woman was married to a transsexual person.

As legitimacy depends on the child having been born when the parents were married, it is also necessary to note another presumption of English law, that a valid marriage can be presumed in certain cases. A valid marriage is presumed if the parents went through a form of marriage and were living

together as man and wife.59 Where parties purported to go through a farm of marriage in France, and lived together as man and wife in England thereafter, it was held that they were validly married as the presumption of legitimacy of marriage was not rebutted by the possibility that the marriage was not valid in France where it was celebrated.60

A child not born in lawful wedlock would, however, be regarded as legitimate in England if, and only if, it is legitimate by the law of the domicile of both the parents at the time it was born.61

Traditionally, the children of polygamous marriages were not regarded, as legitimate as such marriages were not recognised in the Common law but this is no longer the law in England. The children of a polygamous marriage are regarded as legitimate if they are so regarded by the law of the country where the parents were domiciled when the child was born.62 But where the child was not legitimate, the mere fact that the settlor of a deed so regarded him, would not enable him to obtain benefits under the settlement granted to 'sons and grandsons'. 63

In Re Bischoffiheim,64 a single judge has laid down the rule that English courts would recognise the status of legitimacy if the child is regarded as legitimate by the law of the domicile of the parents at the birth of the child. This decision has been severely criticised.65 The rule that a child would be regarded by English courts as legitimate if it was so regarded by the law of the

domicile of the parents may, in some cases, create difficulties and is not easy to apply: what if the father and mother had different domiciles and the rules of law in the two countries differ? Difficulty is also caused as in English Common Law, the domicile of the child was that of the father this test has been described as arbitrary; the Law Commission in England has suggested that the lex domicilii to be adopted should be that which the child was most closely connected.66

59 Satry Velaider Aronegary and his Wift v Sembecutty Vrligalie (1881) 6 App Cas 364, a decsioni of the Privy Council in an appeal from Ceylon where Roman-Dutch law was in force, but the Privy Council observed that the rules of English law were the same.

60 Re Shephmd [1904] 1 Ch 456; and see the criticism of the judgment in Dicey, Morris &

Collins, Conflict of Laws, fourteenth edn, para 17-047.

61 See Dicey, Morris & Collins, Conflict of Laws, fourreenth edn, r 104(2), p 1040.

62 Bamgbose v Daniel [1955] AC 107, [1954] 3 All ER 263.

63 Khoo Hooi Leong v Khoo Hean Kwee [1926] AC 529, a decision of the Privy Council in an appeal from Penang. The child was born of a man and his ts'ip, a secondary wife, anc matter was remanded for additional evidence.

64 [1948] Ch 79, [1947] 2 All ER 830.

65 See Dicey, Morris & Collins, Conflicr of Laws, fourreenth edn, paras 20-019 to 20-024 See also Cheshire, North & Fawcett, PriIJate International Law, fourreenth edn., pp1149- l 1150, and Nygh & Davies, Conflict of Laws in Australia, seventh edri, para 28.5.


under the rule of what have been called 'putative marriages', children of a void marriage are recognised as legitimate if either of the parents believed the marriage was valid. 67 The rule was adopted in English Law by the (English) Legitimacy Act 1959, now the Legitimacy Act 1976, but only applies if the father is domiciled in England. The question might arise as to whether English courts would recognise the rule if the parents were domiciled in a foreign country which adopts the same rule, and it has been suggested that it should.68

Countries such as Australia and New Zealand have abolished the distinction between legitimacy and illegitimacy, and consequently, in the cases of a child born outside wedlock of parents domiciled in those countries, that law cannot regard children as 'legitimate'; it has been suggested that in such cases, the children should be regarded as legitimate in England.69

where a child is regarded as legitimate in accordance with English law, it can succeed to property in all cases as if it was legitimate in cases where the law governing the succession is English law.70 This has been held in the case of rights under a settlement,71 a wilf2 and on intestacy.73 It has been held by the Court of Appeal that status depends on the domicile of the parties, and 'in applying the law of his domicile effect would have to be given to the rights of any children of the Hindu marriage and of his Hindu Widow , and for that purpose English courts would be bound to

recognise the validity of a Hindu marriage so far as it bears on the title to personal property left by an intestate here; one can think of other cases'74

It would appear that if the lex successionis in a given case recognises a child as legitimate, that would be accepted by English courts though there appears to be no decision on the point.75

Legitimation

Legitimation, literally, means making legitimate; in the context in which it is discussed here, it means making a person who was illegitimate,

67 See Black's Law Dictionary, seventh edn, p 994. The rule is based on the Code Napoleon.

68 See Cheshire, North & Fawce[(, Private International Law, fourteenrh edn, p 1149.

69 See Dicey, Morris & Collins, Conflict of Laws, fourteenth edn, para 20-026. The learned editors point out that such a view has been taken in Canada in Re Macdonald [1964] SCR (Can) 317,44 DLR (2d) 208.

70 Dicey, Morris & Collins, Conflict of Laws, fourteenth edn, r 105, p 1050. 1 Re

71Bozzelli's Settlement [1902] 1 Ch 751.

72 Re Bischo./fscheim [1948] Ch 79, [1947] 2 All ER 830.

73Bamgbose v Daniel [1955] AC 107, [1954] 3 All ER 263.

74 Baindail (Otherwise Lawson) v Baindail [1946] P 122, pp 127-8, [1946] 1 All ER 342. 5 See 75Dicey, Morris & Collins, Conflict of Laws, fourteenth edn, para 20-039.

legitimate. This can happen by the parents getting married subsequent to the birth of the child, and, in some cases, by the father acknowledging child as legitimate.

At Common Law, English courts had jurisdiction to entertain proceedings for a declaration that a person was legitimated, or not legitimated, regardless of whether he had any connection with England.

This jurisdiction has been curtailed by statute so that a court in England can only entertain such proceedings if, at the date the proceedings are commenced, the applicant is domiciled in England, or had been habitually resident in England for at least one year.77 It must be noted, however, that the question as to whether a person was legitimated can also arise in other proceedings in English courts, where no declaration has been sought, as when, for instance, the question is whether a person can claim under the Will or intestacy of another.

At Common Law, English courts recognised a foreign legitimation and enforced it only if under the law of the domicile of the father at the time of the child's birth, and when the parents married, such legitimation was recognised by that law.

Legitimation recognised on the Continent, and now by statute in England, and other Common Law countries, is legitimatio subsequens matrimonium; if the parents of an illegitimate child later get married, the child is automatically, as a result of such marriage, regarded as legitimate it is 'legitimated'.

The determining factor at Common Law is the domicile of the father78. Where a father was domiciled in France, and the legitimation was recognised in French law, the child was regarded in England a relation by blood, and therefore, paid a lower rate of legacy duty under the law then in force.79 Such a legitimated child was 'next of kin' under a English statute.80 If a child is regarded as legitimated by the lex domicilii of the father, a power under an English settlement which could be exercised in favour of the child of the settlor had been validly exercised in favour of the legitimated child.81

Legitimation by parental recognition is permissible in some systems of law and it would be recognised in England if it was permissible by the lex

76 Ibid, para 20-044.

77 See Dicey, Morris & Collins, Conflict of Laws, fourteenth edn, r 108, p 1065. 78 Udny v Udny (1869) LR 1 Sc & Div 441 (HL).

79 Skottowe v Young (1871) LR 11 Eq 474.

80 Re Goodman's Trusts [1881] 17 Ch D 266 (CA).

81 ReAskew[1930]2Ch259.

Domicilii both at the time of the birth of the child, and the time when the acknowledgement is made, but not otherwise.82 If the legitimation was recognised by the law of the domicile both at the time of the birth of the child and when the subsequent marriage took place the child would be regarded as legitimate and entitled to rights under a Will even though the tor had died even before the child was born.83

By statute, a foreign legitimation by subsequent marriage is recognised if the lex domicilii of the father when the subsequent marriage took place recognises it.84 The rule is more liberal as compared to the Common Law rule as it abrogates the requirement that the law of the domicile of the father at the time of the biith of the child should also recognise the legitimation, but it only applies to legitimating after 1927, and is confined to only one mode of legitimation, namely, legitimation by subsequent marriage. The old Common Law rules, however, continue to be in force.85

12.5 POSITION IN ENGLAND: (3) ADOPTION

Adoption was unknown at Common Law, and is a creature of statute, the First of which was the Adoption of Children Act 1926, now replaced by The Adoption Act 1976. which English court

only has jurisdiction if the applicant, or, in the case of married couple applying, one of the applicants, is in any part of the united Kingdom, and the child is in England.86

The court applies English domestic law when it decides an application for adoption, and that law lays down the factors to be taken into consideration.87 So the motive for the application has to be considered; if the motive of the applicant was to give the child British nationality, and to safeguard the interests of the applicant in her old age, and not primarily to promote the welfare of the child, the application was refused.88

The rule that courts apply the rules of English law could lead, in some cases, to unfortunate results as a child could be regarded as validly adopted

82 Re Luck's Settlement Trusts [1940] Ch 864, [1940] 3 All ER 307. Re Hurll [1952] Ch 722, [1952] 2 All ER 322.

83 Introduced by the Legitimacy Act 1926, now provided for by the Legitimacy Act 1976.

84 ee Dicey, Morris & Collins, Conflict of Laws, fourteenth edn, para 20-073.

85 ReAskew [1930] 2 Ch 259.

86 Dicey, Morris & Collins, Conflict of Laws, fourteenth edn, r 110, pp 1071-1072.The high court can, however, entertain proceedings even if the child is not in England.

87 Re B (S) (An Infant) [1%8] Ch 204, sub nom Re B {infant} [1%7] 3 All ER 629; See also Dicey, Morris & Collins, Conflict of I.aws, fourteenth edn, para 20-106.

88Re W (A Minor) )(Adoption: Non-Patrial)(l986) Fam 54,[1985] 3 All ER 449 (CA).

in England, and enjoy the status of an adopted child in England but might not enjoy that status in the country where it was 80m; it may,thus, be the child of X, the adoptive father, in England, and that of Y, the natural father, in the place where it was born. Such a result has been criticised89 .A possible solution is that suggested in a case where it was observed that though the court must apply English law, it must consider the law of the domicile of the child to avoid a result where a child has one status in England, and another in another country.90

An adopted child has the same status as a natural child.91 The effect of an adoption order is to make the adoptive parents the parents of the adopted child, and severs the parental responsibility of the natural parents.92

Foreign adoption orders are recognised if the person who adopts is a domiciled in that country.93 This is based both on comity and on principle as explained by Lord Denning MR:

When a court of any country makes an adoption order for an infant child, it does two things: (1) it destroys the legal relationship theretofore existing between the child and its natural parents, be it legitimate or illegitimate; (2) it creates the legal relationship of parent and child between the

child and its adopting parents, making it their legitimate child. It creates a new status in both, namely, the status of parent and child. Now it has long been settled that questions affecting status are to be determined by the law of the domicile. This new status of parent and child, in order to be recognised everywhere, must be validly created by the law of the domicile of the adopting parents. You do not look to the domicile of the child: for that has no separtea domicile of its own. It takes its parents' domicile. 94

The United Kingdom has adopted the Hague Convention on Protection of Children and Cooperation in respect of Inter-country Adoption 1993 by the (English) Adoption (Inter-country Aspects) Act 1999. The Convntion applies if a child habitually resident in a Convention country is brought after adoption to another Convention country. Its provisions have been noted in para 12.2 above.

89 See Cheshire, North & Fawcerr, Private International Law, fourteenrh edn, p 1158.

90 Re B (5) (An Infant) [1968] Ch 204, sub Nom Re B (infant) [1967] 3 All ER 629.

91 See Dicey, Morris & Collins, Conflict of Laws, fourteenrh edn, para 20-114.

92 Ibid.

93 Ibid, r 111(4), pp 1080-1081.

94 Re Valenrine's Serrlemenr [1965] Ch 831, P 842, [1965] 2 All ER 226 (CA).

12.6 CHILDREN: POSITION IN SOME COMMON LAW COUNTRIES

In both Australia and Canada, the courts had applied the Common Law rules, with, in some cases, modifications, but the situation is now governed by statute.

Position in Australia

At Common Law, the courts in Australia exercised jurisdiction in the same manner as in England. Jurisdiction was exercised if the child was physically present in Australia, however fleetingly, 95 and regardless of its nationality or domicile.96 Jurisdiction could be exercised if the child was ordinarily resident within jurisdiction even if temporarily abroad.97 Ordinary residence meant the place where the child resided with its parents if they lived together, and if they were separated, where the parent with whom the child lived, resided.98

English courts also exercised jurisdiction over children who were British subjects. It is doubtful whether Australian courts exercise jurisdiction on this basis over children who are Australian citizens as the decisions are conflicting.99

The position is now regulated by statute, viz, the Family Law Act 1975, under which such jurisdiction can be exercised if the child is present in Australia, or is an Australian citizen, or is ordinarily resident in Australia, or if a parent or a parry to the proceedings is ordinarily resident in, or present in, Australia. 1

The paramount consideration in such matters is the welfare of the child2. An Australian court may decline to exercise jurisdiction on the ground of forum non conveniens, but as the test to be adopted is the welfare of the

95 See A vB (1979) 1 NSWLR 57, cited in Nygh & Davies, Conflict of Laws in Australia, seventh edn, para 27.3.

96 See Re C (an infant) (1981) 8 Fam LR 257, cited in Nygh & Davies, Conflict of Laws in Australia, seventh edn, para 27.3.

97 See McM v C (1980) 5 Fam LR 650; Corin v Corin (1991) 7 SR (WA) 124, both cited in Nygh & Davies, Conflict of Laws in Aum'alia, seventh edn, para 27.3.

98 See Nygh & Davies, Conflict of Laws in Australia, seventh edn, para 27.3.

99 Ibid.

1 See Nygh & Davies, Conflict of Laws in Australia, seventh edn, para 27.1. The provision, s 69E is set our in Tilbury & Ors, Conflict of Laws in Australia, pp 700-701.

2 M v M (1988) 166 Com LR 69.

child, it has been held that an Australian court cannot decline to exercise jurisdiction if the child is within jurisdiction.3

Australian courts will apply Australian domestic law in determining such matters.4

Foreign Guardianship Orders

Foreign guardianship orders are recognised if the guardian is a naturla guardian or appointed by the court where the child is domiciled but such orders are not binding on Australian courts.5

Australia has implemented the Hague Convention on the Civil Aspects of International Child Abduction; this has been briefly noted above.6

Legitimacy

The distinction between legitimate and illegitimate children has been virtually eliminated in Australia by statute7. The presumption of legitimacy as in force in Australia, comes into play to a child born to a woman, during a marriage, or a purported marriage that is void, or within 44 weeks of the termination of the marriage by death or dissolution.8

By statutory provisions, children conceived by artificial insemination or in vitro fertilisation are regarded as legitimate unless it is established that the husband had not consented.9

A child regarded as legitimate by the law of his domicile will be regarded as legitimate in Australia.lO Though the question has not been decided, it has been suggested that if the father and the mother of a child were domiciled in different countries, one must consider the domicile of only the father as legitimacy is primarily a relationship with the father' .11

3 ZP v PS (1991) 181 Com LR 639, extracted in Tilbury & Ors, Conflict of Laws in Australia, p 702, et seq.


5 Ibid, para 27.25.



8 By the Family Law Act 1975, as amended in 1987. See Nygh & Davies, Conflict of Laws inAustralia, seventh edn, para 28.3. Section 91 of the Marriage Act 1961, which applies to a person domiciled in Australia when the child was born, provides that the child of a marriage which is void would be legitimate if either parry to the marriage believed on reasonable grounds that the marriage was valid. See Nygh & Davies, op cit.

9 See Nygh & Davies, Conflict of Laws in Australia, seventh edn, para 28.14; presumptions both rebuttable and irrebuttable are also provided for in the statutes.

10 Attorney-General for Victoria v Commonwealth (1962) 107 Com LR 529, cited in Nygh Davies, Conflict of Laws in Australia, seventh edn, para 28.5. The high court approved fu Bischofficheim (1948) Ch 79, [1947] 2 All ER 830.


Legitimation

Australian law permits, by a statute, legitimation by a subsequent marriage of the parents; the Act applies if the marriage took place in Australia, or in the case of marriages after April 1985, if either party was domiciled in Australia at the date of the marriage. 12

Foreign legitimations would, it has been suggested, be recognised at common Law in Australia if the legitimation is recognised by the father’s domicile at the time. It has been suggested that the requirement in England that the legitimation should be recognised by the father's domicile both when the child was born and when the act of legitimation took place, Is not good law in Australia.13

By statute, a legitimation by subsequent marriage outside Australia is recognised if it is recognised by the law of the domicile of either parent.14

Adoption

Statutes provide for adoption, and permit an adoption order to be made if, at the date of the application, the applicant or in the case of a joint applicant, each of them was domiciled or present within jurisdiction, as was the child to be adopted.15

In all such cases, the courts apply Australian law; and the paramount consideration is the welfare of the child.16

Australia has implemented the Hague Convention on Protection of children and Cooperation in respect of Inter-country Adoption 1993. Its provisions are set out above in brief.17 Australia also has bilateral arrangements with some countries. In other cases, when a foreign adoption will be recognised is governed by statutes which vary from area to area, but broadly, they provide for recognition if:

1) the country where the adoption took place was the usual place of abode of the adopting parents for a continuous period of at least 12 months before the commencement of the proceedings;

12The Marriage Act 1961, s 89. See Nygh & Davies, Conflict of Laws in Australia, seventh edn, para 28.8.

13 See Nygh & Davies, Conflict of Laws in Australia, seventh edn, para 28.10 where the Common Law rule has been described as a 'peculiarly bloody-minded rule' and the decision of a New South Wales Full Court has been referred to: Re the Estate of Taylor (1964-5) NSWLR 695.

14The Marriage Act 1961; see Nygh & Davies, Conflict of Laws in Australia, seventh edn, para 28.9.

15The different statutes in force in different parts of Australia are referred to in Nygh & Davies Conflict of Laws in Australia, seventh edn, para 29.2.


17See para 12.2 above.

2) the adoption is effective under the law of that country; 3) if, under that law, the adoptive parents would have a superior rights to that of a natural

parent regarding custody of the child; and4) if under that law, the adoptive parents would be placed in the position of the natural

parents18.

Position in Canada

The entire subject is now largely regulated by statute.

Jurisdiction of Courts

Courts have, generally, jurisdiction over children residing within the jurisdiction, even if physically outside, but if the child resides outside the jurisdiction, the courts lack power to appoint a guardian.19

The courts apply the lex fori. 20


A guardian of a child appointed in a foreign country will not automatically be recognised in Canada; courts have an inherent discretion, and if monies belonging to a minor are invested in Canada, the court may decline to have them paid over to a foreign guardian if it is not satisfied that it will be used for the benefit of the minor.21

Legitimacy

Child ten are legitimate if they are born out of lawful wedlock, that is, if their parents are legally married, but they may also be legitimate if they are born out of a putative, polygamous or voidable marriage.

Legitimation

An illegitimate child may be legitimated by a subsequent marriage of the parents. The same will happen if the act of legitimation takes place outside the country if it is regarded as valid by the law of the domicile of the father, or by a formal acknowledgement by the father in a manner sufficient to satisfy the applicable law.

18 See Nygh & Davies, Conflict of Laws in AustraLia, seventh edn, para 29.10; the last two requirements are not to be found in the South Australian law but there is a provision which probably has the same effect.

19 See Castel & Walker, Canadian Conflict of Laws, sixth edn, para 18.4, where the various Provincial statutes are referred to, and authorities referred to including Re GaLfagher (1957) OWN 426, and ChiLd and Family Services of Easter Man v M (H) sub nom Child and Family Services of Eastern Man v McKee (1986) 31 DLR (4th) 27l.

20 Castel & ~Talker, Canadian Conflict of Laws, sixth edn, para 18.4.

21 See ibid, and the cases cited there including Re ChishoLm (1913) 13 DLR 811, Re Harding (1929) 2 DLR 623, and Re LLoyd, (1914) 19 DLR 659.

where by Mexican law, the lex domicilii, an illegitimate child had been declared by a Mexican court to have the status of a legitimate child for purposes of succession, the Supreme Court held that though the child was still regarded as illegitimate in Mexico, it would be regarded as legitimate in Canada, as under Mexican law, the child had all the capacities and obligations of a legitimate child.22

A legitimated child has the same rights a legitimate child.23

Adoption

Adoption is a creature of statute and is governed in Canada by the statutes passed by the different provinces. There is no uniform test of when a court Jurisdiction, the rules varying from province to province.24

Provincial statutes lay down when adoptions elsewhere will be recognised, the general rule being that adoptions will be recognised where the parties to the adoption enjoy the same substantive rights as in the province concerned; the Common Law rules, similar to those in England, however, continue to be in force.25

A foreign adoption will not, however, be recognised if recognition would contrary to public policy; an adoption entered into, not with the object of establishing a parent-child relationship, but to enable a man to adopt a woman, with whom he was already living as her husband, so that thereafter the 'father' and 'daughter' could live together as husband and wife was not recognised 26

Canada has signed the Hague Convention on Protection of Children and Cooperation in respect of Inter-country Adoption 1993, and prepared a uniform law to be adopted in the different provinces to implement it. This does not appear to have happened till 2004.27

POSITION IN INDIA: GUARDIANSHIP

As several questions of law in this field are dependent on the religion of the person, it is necessary, where appropriate, to consider the personal law of parties.

22 [19641 SCR 317, 44 DLR (2d) 208, referred to in Castel & Walker, Canadian Conflict of LaUls, sixth edn, para 20.]; and see also other cases referred to in that paragraph.

23 See Castel & Walker, Canadian Conflict of Laws, sixth edn, para 20.3.

24 Ibid, para 20.5 where the tests in different provinces are set out.

25 Ibid, para 20.6.

26 wende v Victoria (County) Ojficia/Administrator (1998) BC] No 570,48 BCLR (.3d) 2] 9, referred in Castel & Walker, Canadian Conflict of Laws, sixth edn, para 20.6.

27 The provisions of the Convention have been btiefly noted in para 12.2 above.

Closely connected with the question of guardianship is the question of custody which usually arises in matrimonial proceedings when the parents have children. That is a question properly belonging to the field of matrimonial law, which is outside the scope of this book.

Ordinarily, the father, or mother, as the natural guardians of a minor are entitled under the law to look after the minor, and no intervention of a court IS necessary.

The natural guardian of a Hindu minor under the Hindu Minority and Guardianship Act 1956, is: in the case of a boy or an unmarried girl, the father, and after him, the mother; in the case of an illegitimate boy or illegitimate unmarried girl, the mother, and in the case of a married girl the husband. A person has May, however, be disqualified if such person has ceased to be a Hindu, or has renounced the world.28 The natural guardian of an adopted son is the adoptive father, and after him, the adopted mother29

The Hindu Minority and Guardianship Act 1956, was enacted before the enactment of the Hindu Adoptions and Maintenance Act 1956, which permits females to adopt, and allows the adoption of females, which was not permissible under customary Hindu Law, but as s.12 of that the provides that an adopted child would for all purposes be deemed to be the child of the adoptive parents, the rules of the Hindu Minority a Guardianship Act 1956 applicable to natural parents would, it is submited30

Though the father is the a natural guardian of a Hindu minor, if a father of a minor in a given case is not taking any interest in the affairs of the minor, he is 'non-existent', as it were, and in such cases the mother can be considered to be the natural guardian of her minor daughter.31

A natural guardian can do all necessary and reasonable acts for the benefit of the minor, and for the realization, protection and benefit of the minor’s estate, except that he cannot, without the permission of the court, mortgage, charge, or transfer by gift, exchange, or otherwise, any immovable property of the minor, or lease it for a period of more than five years or for a term which extends by more than one year the date the minor would attain majority32

28 The Hindu Minority and Guardianship Acr 1956, s 6. The words 'father' and 'mothe.not include a stepfather or a stepmother. The Hindu Minority and Guardianship 1956, is supplemental to the Guardians and Wards Act 1890, s 2.

29 The Hindu Minority and Guardianship Act 1956, s 7.

30 The exceptions to s 12 have no bearing on the question.

31Jijabai Vithalrao Cajre v Pathankhan AIR 1971 se 315, (1970) 2 see 717.

32 The Hindu Minority and Guardianship Act 1956, s 7. The court to be approached is court within the meaning of the Guardians and Wards Act 1890. See below.

the Hindu Minority and Guardianship Act 1956 applies to Hindus in Indian a (except Jammu and Kashmir), and Hindus outside India who are domiciled in India.33

Whether the provisions of the Act would be given effect to in another country where the minor happens to be is a moot point as all Common law countries provide that their courts would have jurisdiction over minors Within their jurisdiction; 34 and corresponding provisions probably exist in countries.

Muslim personal law is not codified and one has to consider customary Mahomedan law as applied in India. Mahomedan Law distinguishes between the custody of the person of a minor which is with the mother for boys till they are seven years old, and with the mother of girls till they attain puberty, and the guardianship of the property of a minor which is with the father or father's father, or the executors of their Wills. A brother is not the natural guardian of a minor. 35

Guardians have powers over the poverty of a minor which are set out in detail. 36

The general law applicable to all communities is the Guardians and Wards Act 1890. The Hindu Minority and Guardianship Act 1956, expressly provides that its provisions are supplemental to, and not in derogation of, the provisions of the Guardians and Wards Act 1890.37 The power to appoint guardians is conferred on the district court within whose , jurisdiction the minor ordinarily resides;38 concurrent jurisdiction is enjoyed by all high courts under their Letters Patent.39

Having regard to the language of s 7(1) of the Family Courts Act 1984, it has been held that only issues of maintenance, guardianship, etc, arising out of matrimonial proceedings is within the jurisdiction of family courts, and guardianship of property under personal law continues to be governed the ordinary law.60

33The Hindu Minority and Guardianship Act 1956, s 1(2) .

34 See paras 12.3 and 12.4 above.

35 Syed Shah Chulam Chouse Mohiuddin v Syed Shah Ahmed Mohiuddin Kamisul Quadri AIR 1971 SC 2184, (1971) 1 SCC 597.

36 See Mulla's Principles ofMahomedan Law, nineteenth edn, ch XVIII.

37 The Guardians and Wards Act 1890, s 2,

38 'District Court' in the Guardians and Wards Act 1890, has the same meaning as in the Code of Civil Procedure 1908, s 4(4). Under s 2(4) of the Code of Civil Procedure 1908, the expression means the principal Court of Civil Jurisdiction in the district, including the high court exercising original jurisdiction.

39 See s 3 of the Guardians and Wards Act 1890; Haidiri Begum (Mt) v JawwadAlis Shah AIR 1934 All 722.

40 Ranjeet Chabra v Savita Chabra AIR 1991 All 98. The same opinion was expressed in KamalAlaudin (VM) v Raja Shaikh AIR 1990 Born 298, which was reversed on a different point in Kanak VinodMehta v VinodDuleraiMehtaAIR 1991 Born 337.

The enactment of the Family Courts Act 1984, does not affect the jurisdiction of the high court in guardianship matters.41 The jurisdiction of the high court is the same jurisdiction which is exercised by courts England. 42 It has been held that the power can be exercised by the high courts on over all infants, whether they reside within jurisdiction or not provided they were 'British subjects'.43 The basic criteria would be, as in England, the welfare of the minor. The

court would consider the wishes of the minor if the minor has reached the age when he can express a preference but such wishes are not decisive.44

The jurisdiction of a district court can only be exercised if the minor ordinarily resident within the district. 'Ordinary residence' me something more than actual residence, and not a mere temporary or residence.45 But if a widow has shifted with her children to a different place after the death of her husband for educating the children, and Iived there for a considerable time, she is ordinarily resident at such place t o confer jurisdiction on a district court, the minor must be ordinarily resident within jurisdiction but the court can appoint a guardian who is ordinary resident elsewhere.47

A court may appoint a guardian if it is satisfied that the appointment necessary for the welfare of the minor.48 In selecting a guardian the court must consider the welfare of the minor as the paramount consideration and also consider the personal law of the minor, its age sex and religion, the character and capacity of the proposed guardian, the nearness of the relationship, the wishes (if any had been expressed) of the deceased parent and if old enough to form an intelligent preference, the preference of the minor.49

41 This is clear from the language of the Act, and it has been so held. See para 11.19 above

42 See cl 17 of the Letters Parent of the High Courts of Bombay, Calcutta and Madras ". Provide that they will have the same power and authority over persons and estate of infants which was versed earlier in the high court. Other high court have similar power

43 Re Tarunchana'ra Ghosh (1929) ILR 57 Ca1533; Rajah ofVizianagaram v Secretary oj AIR 1937 Mad 51; Re Ratanji Ramaji AIR 1941 Bom 397 (rhe court observed, ho". rhar ir would not do so if the order would not be effective); Pamela Williams v Patrick lv/artin AIR 1970 Mad 427. 'British subjects' would now, presumably, mean citi India.

44 Pamela Williams v Patrick Cyril Martin AIR 1970 Mad 427.

45 Lalita Twaif(Mt) v Paramatma PrasadAIR 1940 All 329; In the matter of Lovejoy Paur 1944 Ca1431; Chandra Kishore v Hemlata Gupta AIR 1955 A1l611 ;jarnuna Prasad Panna AIR 1960 AlL 283.

46 fumzla v Bhanu Mal AIR 1956 All 328.

47 Chimanlal Ganpat v Rajaram Magar/chand OswaL AIR 1937 Born 158.

48 The Guardians and Wards Act 1890, s 7.

49 Ibid, s 17.

Goa, Daman and Diu

Neither the Guardian and Wards Act 1890, nor the Hindu Minority and guardianship Act 1956, appear to have been extended to the erstwhile portuguese colony, that is, the State of Goa, and the Union Territories of Daman and Diu, where the Portuguese Civil Code 1867, continues to

apply. Under a Decree of 1880, however, the customary law applicable to Hindus in the colony is preserved, except to the extent modified by the decree. Under chs II and III of the Code, the parents of a minor and especially the father, exercise parental control over the person and property minors. They would be the natural guardians of the minor.50

renoncants of Pondicherry

renoncants are people who opted, after the French Civil Code 1880, was extended to the then French colony of Pondicherry, to be governed by the French Civil Code. When the Guardian and Wards Act, 1890, and the Hindu Minority and Guardianship Act 1956, were extended to Pondicherry, after it became a part of India, by the Pondicherry (Extension of Laws) Act 1968, it was provided that the Acts would not apply to such renoncants, who would, presumably, be governed by the provisions of the French civil Code.5!


There does not seem to be any judgment of an Indian court about the effect of the : foreign guardianship order. The question can arise in a number of situations: if the order has been passed in a matrimonial proceeding; or if after the order was passed, the minor was brought to India; or if the minor owns properties in India and the guardian appointed abroad seeks assistance of the court to realise or deal with the properties.

As far as foreign maintenance and custody orders are concerned, the irion has been noted earlier. 52

50 The provisions of the Code enumerate the powers exercisable by parents and guardians. The Code had fixed the age of majority at 21, but it would now be 18, as the Indian majority Act 1875, has been extended by a Presidential Regulation made under an 240 of the Constitution, Regulation 6 of 1963, and by a Goa Act of 1966.

53 It is unlikely that there are any significant numbers of such r-enoncants today. It is also required to be noted that there were also people called optants who chose to become French nationals when Pondicherry became a part ofIndia; how many did so, and whether they are in Pondicheny today is difficult to say.

52 See paras 9.23 and 9.24, respectively above.

If the minor was brought into India, a court in India would have jurisdiction to deal with the matter, and is likely to adopt the same approach as an English court which is respect the foreign order subject to the overriding power of the court to do what is in the best interests of the minor.53

If, however, the minor is not in India, prima facie, no court would have jurisdiction in guardianship proceedings to pass any orders and it would be necessary for the foreign guardian to approach the appropriate civil court which is likely to pass the order after taking into consideration what is in the best interests of the minor.

12.8 POSITION IN INDIA: LEGITIMACY AND LEGITIMATION

Legitimacy

The question of legitimacy is of considerable importance in India inasmuch as, apart from the social stigma that still attaches to illegitimate children illegitimate children cannot succeed to the estate of the father on an Intestacy.

Hindus are governed by the provisions of the Hindu Succession Act 1956. Though the Act does not expressly exclude illegitimate children from succeeding, the definition of 'related' in s 3(j) of the Act define 'related' to mean 'related by legitimate kinship', the only exception carved out being that illegitimate children are related to their mother, and to each other, and their lineal descendants are deemed to be related to them.

Though there is no decision of the Supreme Court on the point, it has been held that illegitimate children cannot succeed to their father's estate an intestacy, 54 though they can succeed to the estate of their mother55 If the child has born of a marriage which is null and void under s 11 of the Hindu Marriage Act 1955, or a marriage declared void under s 12 of that Act, the child is deemed to be legitimate. 56 Where a child is so deemed


54 Daddo Atmaram Patil v Raghunath Atmaram Patil AIR 1969 Born 176; Ramkali v mahila Shyamwati AIR 2000 MP 288.

55 Rama Ananda Patil v Appa Bhima Redekar AIR 1969 Born 205; Gurbachan Singh v Khichar Singh AIR 1971 P & H 240; Roshan Lal v Dalipa AIR 1985 HP 8.

56 The Hindu Marriage Act 1956, s 16. Section 11 of that Act renders void a marriage which is bigamous, or where the parries are below [he prescribed age or are sapindas of each other (unless [he custom applicable to them permits such a marriage). Section 12 empowers court to grant a decree of nullity principally if a party or a guardian of a party has nor consented to the marriage.

To be legitimate, it can succeed to the estate of the father on an intestacy.57 In goa, Daman & Diu, children born of a void or voidable marriage are legitimate even if the children had been born after the marriage of the parties had been declared void. 58 An adopted son or daughter is, of course, entitled to succeed to the estate of his adoptive parents.59

In Mahomedan Law applicable to Sunnis governed by the Hanafi school, illegitimate children cannot inherit from the father, but can from the mother, while in the case of Shias, illegitimate children cannot inherit at al1.60

Legitimate children cannot also succeed to property on an intestacy under the Indian Succession Act 1925, whose provisions relating to intestate succession govern Christians, Europeans and Parsis.61

When a Will refers to the son, daughter or relative of a person, it refers To the legitimate son, daughter or relative of the person; but if there are no legitimate children or relatives, it would cover an illegitimate child or relative provided that on the date the will was made, such person had acquired the reputation of being a legitimate child or relative. This is provided in s 100of the Indian Succession Act 1925, which applies to the Wills of Christians,

Hindus and Parsis.

In this state of affairs, the rules of law as to when a child is regarded as legitimate are of considerable importance.

Two presumptions are, therefore, pertinent, namely: (1) the presumption of marriage; and (2) if marriage is established, or can be presumed, the presumption of legitimacy

The presumption of Marriage

A marriage can be presumed if the parties have lived or cohabited together for a long time and have been regarded by friends and neighbours as man

57 See Gumam Kaur v Puran Singh (1996) 2 SCC 567, (1996) 5 JT 664; Rameswari Devi v State of Bihar AIR 2000 SC 735, (2000) 2 SCC 43 I (the children of a bigamous marriage entitled (0 pension of father); Shantaram Tukaram Patil v Dagubai Tukaram Patil AIR 1987 Born 182; Nirmalamma (G) v G SeethapathiAIR 2001 AP 104.

58 Shalini Ballikar v Aidem Naique, (2006) 2 Born CR 199.

59 The Hindu Adoptions and Maintenance Act 1956, s 12. See also the General Clauses Act 1897, s 3(57): 'son', in the case of anyone whose personal law permits adoption, shall include an adopted son. In India, no person other than a Hindu can adopt.

60 See Mulla's Principles of Mahomedan Law, nineteenth edn, pp 81 and 99, respectively.

61 Smith v Massey (1906) ILR 30 Born 500, 8 Born LR 322; Re Goods of Sarah Ezra (1931) ILR 58 Cal761, AIR 1931 Cal560. Both are judgments of learned single judges. The decisions related (0 Europeans. The applicable provisions of the Indian Succession Act 1925, is s 37, which applies (0 Christians and Europeans, and s 51, which applies (0 Parsis. Both the use words 'child' or 'children'. There appear (0 be no decisions specifically related to illegitimate Parsi children.

and wife. This was held by the Privy Council in a number of cases,62and has also been held by the Supreme Court,63 and the high courts.64 Where a presumption of marriage can be drawn, the children are legitimate.

Presumption of Legitimacy

The presumption of legitimacy is laid down in s 112 of the Indian Evidence Act 1872, which provides that a child born during the continuance of a valid marriage between his mother and any man, or within 280 days its dissolution (the mother remaining unmarried) shall be conclusive proof that he or she is the legitimate child of that man, unless it can be shall that the parties to the marriage had no access to each other at any time when he could have been begotten.

Illustrations (a) and (b) to s 50 of the Indian Evidence Act 1872.are also relevant. Illustration (a) provides that if a question arises as to when two persons were married, the fact that they were usually received by friends and relatives as husband and wife is relevant. Illustration (b) provision that if the question is whether A was the legitimate son of B, the fact that A was always treated as such by members of the family is relevant. In this context, it is important to bear in mind that illustration which were often

62 Andrahennedige Dinohamy v Wijetunga Liymzapatabenhdige Balahamy AIR 1927 pe (appeal from Ceylon applying Roman-Dutch Law in force there); Mohabbal Ali KJ, Mahomed Ibrahim Khan, (1928-29) LR 56 IA 201, AIR 1929 PC 135; Kashi /vi:

Bhagwan Das AIR 1947 PC 168 (as the parries had gone through a ceremony of mar:· the marriage was presumed valid). In Ma WZm Di v Ma Kin (1907-08) LR 35 IA 41. presumprion was not drawn as it was not shown that persons outside the family re them as husband and wife.

63 Gokal Chand v Parvin Kumari AIR 1952 SC 231, [1952] SeR 825 (principle laid d but found that in the facts of the case, the necessary evidence to enable the presump to be drawn had not been produced); Badri Prasad v Deputy Director of Consolidation. 1978 SC 1557, (1978) 3 see 527 (heavy burden lies on person seeking to rebut presumption as parries had lived together as man and wife for 50 years); Balosubraman: (SPS) v Suruttayan AIR 1992 se 756, (1992) SlIpp 2 see 304; Ranganath Parmes/' Panditrao Mali v tRnath Gajanan Kulkarni AIR 1996 SC 1290, (1996) 7 sce Rameshwari Devi v State of Bihar AIR 2000 se 735, (2000) 2 SCC 431 ;Sobha Hymal Devi v Setti Gangadhara Swamy AIR 2005 SC 800, (2005) 2 SCC 244. And see Se, Ashwani Kumar AIR 2006 SC ' ! 58, (200·~) 2 sce 578.

64 Raghuvir Kumar v Shanmughavidu AIR 1971 Mad 330; Hooyyayya Kanthappa Sh. Renuka S Shetty AIR 1984 Born 229; Ningu Vithu Bamane v Sadashil1 Ningu Baman/'.1987 B0m 27.

65 Balasubramanyam (SPS) v Suruttayan AIR 1992 se 756, (1992) SlIpp 2 see 304. however, Ajarma Bi (S) v S Khurshid Begum AIR 1996 se 1663, (1996) 8 sec 81.

appended to statutory provisions in nineteenth century Indian statutes, e part of (he statute and are regarded as useful guides to the interpretation 66 of the position In question.

section 114 of the Indian Evidence Act 1872, empowers a court to me the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events or human conduct in their relation to the facts of a particular case.

The law is well-settled. The Privy Council had held that the presumption or rebutted merely by showing, in the case of a Muslim wife, that she not a pardanashin woman,67 and that the word 'access' meant an opportunity for marital intercourse.68 The Supreme Court has also so held in a number of cases,69 as have the high courts.70

In India, the husband was competent to give evidence of non-access.7l non-access being a negative fact cannot always be proved by positive evidence, and the court has always to look at all the circumstances in a particular case. The presumption was not drawn when it was established that wife had deserted her husband three months after the marriage, and was thereafter living with her paramour.72

Courts in India cannot compel parties to go through a blood-test to prove or disprove paternity.73 The courts may adopt the same approach towards applications for a DNA test.

A child born more than 280 days after the dissolution of a marriage is necessarily illegitimate, and s 112 does not have the effect of rendering

66 this is well-setrled. See, for example, Jumma Masjid v Kodimaniandra Deviah AIR 1962 SC 847, [1962] Supp 2 SCR 554; Mahesh Chand Sharma (Dr) v Raj Kumari Sharma AIR '996 se 869, (1996) 8 see 128 .

67 mohabbat Ali Khan v Mahomed Ibrahim Khan (1928-29) LR 56 IA 201, AIR 1929 PC 135 .

68 karapayaS{';"vai v Mayandi AIR 1934 PC 49.

69Chilukuri Venkateswarlu v Chilukuri Venkatanarayana AIR 1954 SC 176, [1954] SeR 424 "access' means opportunity for mari tal intercourse); Mahendra Manilal Nanavati v Sushila Mahendra Nanavati AIR 1965 SC 364, [1964] 7 SCR 267; Dukhtar Jahan v Mohammed Farooq AIR 1987 SC 1049, (1987) 1 sec 624; Goutam Kundu v State of West Bengal AIR 1993 SC 2295; (1993) 3 SCC 418.

70 Hidayat Ullah v Mohammad Ali AIR 1937 Lah 266 (can be rebutted only be evidence of non-access, the mere statement of the husband is not enough); Krishnappa (T) v TVenkatappa AIR 1943 Mad 632 (presumption not rebutted merely by establishing that husband and wife were living apart).

71 Chilukuri Venkateswarlu v Chilukuri VenkatanarayanaAIR 1954 SC 176, [1954] SCR 424 (the Common Law rule that this could not be done, abrogated in England by statute in 1950, does not apply in India).

72 SivakumiAmmal v Koolyandi Chettiar (1934) 66 Mad LJ 283; the court relied on Mayandi Asari v Sami Asari (1931) 61 Mad LJ 874.

73 Subayya Gounder v Bhoopala Subramanian AIR 1959 Mad 396; and see Bharti Raj v 'umesh Sachdeo, AIR 1986 All 259.

such a child illegitimate; the court upheld the legitimacy of a child born after either 336 or 351 days.74

Related presumptions are provided for in customary Mahomedan law A presumption of marriage arises from long cohabitation, a presumption of legitimacy arises if the father has acknowledged the child as a legitimate child75 The acknowledgement must be clear, and if it is, the presumption arises, but the acknowledgement must be not merely that it was his hischild but that it was his legitimate child; it is, in effect an acknowledge that the mother was his wife.76

A question has arisen whether in the case of Muslims, s 112 of the Indian Evidence Act 1872, is that applies or whether the applicable rule is Mahomedan Law. It has been held that s 112 being a rule of prom applies,77 and that also seems to have been assumed in some cases.78 decisions have been criticised.79

The Portuguese Civil Code 1867, which was in force in Goa, Dan and Diu, before they became a part of India contained detailed provision as to when legitimacy could be presumed. In 1963, by a Regulation by the President under art 240 of the Constitution, Regulation 1 1963, the Indian Evidence Act 1872, was extended to that area, consequently, it is submitted, those provisions of the Portuguese Civil would not be applicable.8o

There does not seem to be any Indian decision on recognizing a foreign determination of legitimacy. On principle, as the legitimacy of a pers

74 Uttamrao Rajaram Shewale v Sitaram Rajaram Shewale (1962) 64 Born LR 752 (me relied upon works on medical jurisprudence and certain English decisions such as WOod [1947] P 103 (346 days), and Pmton-Jones v Preston-Jones [1951] AC 391, [1 1 All ER 124 (360 days); it also observed that such a presumption would not be dra a case where the child was born after 365 days and there was evidence that the woma;i unchaste, and referred to Tikam Singh v Dhan Kunwar (1902) lLR 24 All 445).

75 See Mulla's Principles of Mahomedan Law, nineteenth edn, paras 268, and 340-341.

76 Muhammed Allahdad Khan v Muhammad Ismail Khan (1899) ILR 10 All 289; Husain Khan v Hashim Ali Khan (1915-16) LR 43 IA 212, (1916) ILR 38 All 62 Imamabandi v Mutsaddi (1917-18) LR 45 IA 73, AIR 1918 PC 11; Habibur Chowdhury v Altaf Ali Chowdhuri (1920-21) LR 48 IA 114; Fatma Binti Ha Administrator-General, Zanzibar AIR 1949 PC 254 (appeal from East Africa).

77 Sibt Mohammed v Mohammad Hameed AIR 1926 All 589, ILR 48 All 723; Rahim (Mt) v Chiragh Din AIR 1930 Lah 97; Sampatia Bibi v Mir Mahboob Ali AIR 1936 All 78 See Ismail Ahmed Peepadi v Momin Bibi AIR 1941 PC 11; Dukhtar Jahan v Moh.

78 Farooq AIR 1987 SC 1049, (1987) 1 SCC 624.

79 See Rashid's Muslim Law, fourth edn, pp 138-141.

80 Under art 240(2) of the Constitution, a Regulation made under that article has me! effect as an Act of Parliament, and would, merefore, prevail in the area which was union territory.

A matter of status, and as status is in Indian law dependent on the law of the domicile of the parties,81 Indian courts should recognize such a determination by a foreign court applying the law of the domicile of the Father of the person; if such recognition is granted, a person so recognised be entitled to succeed as a legitimate child.

legitimation

The concept of legitimation is not known generally in Indian law. In the state of Goa, and the Union Territories of Daman and Diu, the Portuguese civil Code 1867 continues to apply, and under arts 119 to 122 of that Code legitimation by subsequent marriage and acknowledgement are both recognized, provided that the conditions stipulated in the Code are satisfied.

With increasing mobility of persons, the question may arise before an Indian court as to whether X who has been legitimated in a foreign country in that country, the son or daughter of Y (the father), should be so regarded in India. If Y is domiciled in that country, whether X is or is not entitled of Y should, it is submitted, be determined by the law of that cry as the question is a question of status and in our country questions of status are determined by the lex domicili.82

FOREIGN ORDERS RELATING To THE CUSTODY OF CHILDREN

International Conventions

Hague Convention on the Civil Aspects of Child Abduction 1980

The principal international convention on the issue is the Hague Convention on the Civil Aspects of International Child Abduction 1980. Eighty-one countries have adopted the Convention as part of their law, though India has not.

As its title indicates, it is concerned not with recognition of foreign custody orders directly but the prevention of removal of children from the jurisdiction of the court which has passed (he custody order, and their return to that jurisdiction.48

Its principal features are:

1. It applies to the removal of children under 16.49 2. Removal or retention is wrongful if the child is removed from its place of habitual

residence outside the jurisdiction of the court which had passed the order of custody. 50 3. In all cases where the child has been wrongfully removed or is being wrongfully retained,

the judicial authority of the place where the child is, must expeditiously order that the child be returned to its place of habitual residence. 51

4. The only grounds on which the return of the child may be refused are: a) the person who was entrusted with the custody of the child was not exercising the right or

has consented to, or acquiesced in, the removal; or b) there is grave risk that the return of the child would expose the child to physical or

psychological harm, or place the child in an intolerable situation; or c) if the child has reached an age and degree of maturity to express an opinion, the child

objects to being returned;52d) the return of the child is not permitted by 'the fundamental principles of the requested

State relating to the protection of human rights and fundamental freedoms'.53

48 See, for instance, art 12, which makes it clear that an order directing the return of the child shall not be taken to be a determination of the merits of the custody issue.

49 The Hague Convention on the Civil Aspects of International Child Abduction 1980, art 4.

50 Ibid, art 3.

51 See ibid, arts 11 and 12.

52 bid, art 13.

53 Ibid, art 20.

Position in England

In England, the paramount consideration is the welfare of the child. "J earlier custody order, whether English or foreign, is not regarded as the b word on the subject as by their very nature, custody orders are subject review in the light of changed circumstances, and the decisive factor is d welfare of the child. A foreign custody order is, however, entitled to gre weight, and the more recent it is, the greater the weight it will be given.

In a case from Canada, the father of the child took away the child Ontario in Canada though a California court had awarded custody to mother. The judge in Ontario, taking the welfare of the child in consideration, awarded custody to the father; the Supreme Court of Canal reversed the order, but the Privy Council restored the order of ri . I' d 55 tna JU ge.

An instructive case is] v C,56 where a child aged 10 years had been, wi the consent of its natural parents, who were Spanish, brought up in EnglaJ for many years by foster parents. An application by the natural parents i granting them custody was refused as it was established on evidence IT removing the child from the foster parents and foster family where L child was very well integrated would gravely harm the child.

Similarly, when a natural father removed the children from the Unir, States of America after the death of the natural mother in violation of . order of a California court granting interim custody to the stepfather, ( Court of Appeal in England reiterated that the test was the welfare of [ children, and the fact that the father had violated the order of the Califorr court and removed the children from the United States was only one of factors to be taken into consideration. 57

In a somewhat unusual case, two Americans who had been Jllarried the United States were divorced by a court in the State of New Mexi and custody of the child was awarded to the mother. The court in Kl Mexico later varied the custody order and awarded the custody to t father as the mother was found not to be a fit and proper person. T father had executed a document stating that if he died, his sister, living England, should have custody. The father died, and the sister went to ;United States and removed the child to England beftre an order of the K, Mexico court awarding temporary custody to the mother, and restraini the aunt from removing the child outside the United States, was served


55 Mckee v Mckee[1951] AC352, [1951] 1 All ER942.

56 [1970] AC 668, [1969] 1 All ER 788.

57 Re C (Minors) (Wardship:Jurisdiction) (1978) Fam 105, [1978] 2 All ER 230 (CA).

Her.The court made the child a ward of the court in England, and held it would be disastrous to return the child to the mother.58

Courts in England have always treated 'international abduction' cases ely.59 In more than one decision, the courts have deprecated the conduct parent in secretly removing a child from the jurisdiction of the court :h had awarded the custody to the other parent. In In Re H, 60 Wilmer =-ed with approval the observation of Cross J in the court below, that: e sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me it is :e duty of all courts in all countries to do all they can to ensure that :e wrongdoer does not gain an advantage by his wrongdoing.61

The same view was taken in Re T62

After a divorce granted by a Romanian court, custody of the child had : granted to the mother, the father having a right of access; the mother rght the child to England and the father moved an English court that child be retuned to Romania, contending that the removal of the child ':l.Tongful; on a reference made by an English court, a Romanian court that the removal of the child was not wrongful, and that was held to leterminative and binding.63

English courts were reluctant to hold a full inquiry into the matter as would take many months during which the child would take root in bnd, and if that influenced the order of the court, it would strengthen ands of the abducting parent, and threaten grave injustice to the ieved 'left behind' parent.64 This approach was not, however, adopted e the children had not been brought to England by some wrongg but on a visit to their grand parents with the consent of both parties, may well be held to be domiciled in England; in such a case, the court rly decided to determine the issue after going into the merits of 65 case.

A somewhat different approach is now adopted even in such kidnapping S~ whilst the kidnapping was one of the circumstances to be taken into

58Re D (an infant) [1967] Ch 761, [1967] 2 All ER 88l.

59See Dicey, Morris & Collins, Conflict of Laws, fourteenth edn, paras 19-078-19-080. [1966]

60 [1966] 1 WLR 381, p 396. The observation sets out the very rule which the Hague Convention on the Civil Aspects ofInternational Child Abduction 1980, enshrines. )968] Ch 704, [1968] 3 All ER 41l.

61Re D (Abduction: Rights to Custody), [2007] 1 AC 619, [2007] 1 All ER 783.

62Re H (Infants), [1966] 1 WLR 381, [1966] 1 All ER 886 (CA), and see Dicey, Morris & Collins, Conflict of Laws, fourteenth edn, para 19-079.

65ReA (infants), [1970] Ch 665, [1970] 3 All ER 184 (CA).

account, the weight to be attached to that citcumstance depended on facts of the case, and the object in such proceedings was not to· penalise parent for his conduct but pass the most suitable order in the interests the child.66

The Parliament in England has since enacted the Child Abduction aJ Custody Act 1985, which gives statutory force in England to the Hag] Convention on the Civil Aspects of International Child Abduction and 1 European convention containing similar provisions.67

It has been held that the words 'removal' and 'retention' mean remo out of the original jurisdiction, and retention out of the origin jurisdiction.68 There is wrongful retention when the mother, contrary the agreement that the parents would live in England for only one ye< stayed on in England, and did nct return to Israe1.69 Acquiescence by other parent is a question of fact, and must not be inferred merely from attempt to seek reconciliation, or to resort, first, to religious courts.70

A court may refuse to order the return of the child if the return wo expose the child to 'grave risk of psychological harm'; but where the morh had removed the child from Australia, where the child had been bo contrary to a consent order that the child would not be removed frd Australia without the father's consent, the child would be ordered to returned to Australia as any risk of psychological harm arose not from . return of the child to Australia but from the refusal of the mother accompany him.71 A refusal to return the child to the place from where had been wrongfully removed, would only be justified if ordering the ren! would place the child in an intolerable situation, and if this was not case, the court had no discretion; it must order the return of the child.

Return of the child may be refused if the child is of sufficient age of maturity to express its choice, and the choice is based on some ratiol reason other than the reason that it wanted to live with a particular paren

66 Re L (Minors) [1974] 1 WLR 250, [1974] 1 All ER 913 (CA). The Court of ApI affirmed the order of the trial judge ordering that the child be returned to Germany.

67 See Dicey, Morris & Collins, Conflict of Laws, fourteenth edn, para 19-095 et seq.

68 Re H (Abduction: Custody Rights) [1991] 2 AC 476, [1991] 3 All ER 230.

69 Re 5 (Minors: Abduction: WrongfUL Retention) (1994) Fam

70, [1994] 1 All ER 23,. 70 Re Hand ors (Minors) (Abduction: Acquiescence) [1998] AC 72, [1997] 2 All ER 21~

[1998] AC 72, at p 88, Lord Browne-Wilkinson also refers to French and Arneri judgments to the same effect.

71 C v C (Abduction: Rights of Custody) [1989] 1 WLR 654, [1989] 1 All ER 465 (CA. 72 B v B (Abduction: Custody Rights) (1993) Fam 32, [1993] 2 All ER 144 (CA).

73 Re 5 (A Minor) (Abduction: Custody Rights) (1993) Fam 242, [1993] 2 All ER 683 'e The child was nine years old. Her mother tongue was English, and she suffered fii speech impediment and expressed the opinion that her condition had improved after

When a court orders the return of the child, it may first secure suitable rrakings from the parent taking the child out of jurisdiction?4

The principles of the Convention have also been applied where a father ved a child from Israel, where the Convention was not applicable, and e he and his wife had been awarded joint custody, and brought the (0 England; the Court of Appeal ordered the return of the child to as it had been removed from the place of habitual residence.75 The ": issue came up in Osman v Elasha/6 where a Sudanese court had ded custody of the children to the paternal grandmother in accordance with Islamic law. The mother removed the children and brought them to d; the court applied the principles of the Hague Convention, though not applicable to Sudan, and rejected the argument that the family ce system in Sudan was unsatisfactory. It w::ts pointed out by the Court peal that the system had to be looked at in the context of Islamic law ch was acceptable to the parties, and that the system could only be ded as unsatisfactory so as to preclude ordering the return of the en if there were exceptional circumstances, such as persecution, or 'c, sex or other discrimination.

The House of Lords has disapproved of this approach; it pointed out unless a statute compelled otherwise, the court must first and foremost "der the welfare of the child; it refused to order the return of the child audi Arabia which was not a country to which the Convention applied.?? House also referred to art 20 of the Convention that the requested may refuse to return the child if it would not be permitted by the ental principles of the requested State, and pointed out that this e of the Convention would have been incorporated in the English .. ae had the English statute been enacted after Parliament enacted the an Rights Act 1998.78

Position in Australia

Austrialia has implemented the Hague Convention on the Civil Aspects of international Child Abduction 1980, by amending the Family Law Act

in England and speaking in English, while it would deteriorate if she went back to France, trom where the mother had removed her, and went to a French school where she would have to speak in French.

74See, for example, Cv C(Abduction: Rights of Custody) [1989] 1 WLR654, [1989] 1 All ER ...65 (CA).

75 Re F (A Minor) (Abduction: Custody Rights) (1991) Fam 25, [1990] 3 All ER 97. 000) Fam. 62 (CA).

77Re J (A Child) (Custody Rights: Jurisdiction), [2006] 1 AC 80, [2005] 3 All ER 291. The House disapproved of Osman v Elasha

76 [2007] Fam 62 (CA).

78 See [2006] 1 AC 80 at p 96.

1975. Broadly, Australian courts have applied the same rules as in England Wrongful Removal and Retention' has been given the same meaning as England?9 A refusal to return the child wrongfully removed would 01 be justified if there is a grave risk of physical or psychological harm 01 substantial, and not of a trivial nature.80

Position in Canada

The position at Common Law was broadly as in England, so that a forei custody order was not binding on a Canadian court though it would one of the facrors the judge would consider, tue paramount consideraci being the welfare of the child.8l Canada is a party ro the Hague Conven . which has been implemented in all the provinces and territories of CanaeL

'Habitual residence' within the meaning of the Convention meo residing in a place for an appreciable period of time with a 'settled intention Removal of a child with the consent or acquiescence of the parent wh( custody is said to have been infringed means that that parent must b.; agreed, or must be implied to have done so by his words and conduct.

An order refusing the return of the child on the ground of harm to i child would only be justified if the child would be placed in intoleral situation by its return.85 The court may refuse to order the return if i child, having reached an age of maturity, objects, but the wishes of an year old child may not carry much weight in circumstances which doubt on whether the expression of its wishes was voluntary.86

Position in India

There are no special statutory provisions, and India has not implemen: the Hague Convention on Civil Aspects of international Child AbducO 1980. Courts in India have, however, applied the same principle.

79 Re the Marriage of Hanbury Brown (1995) 20 Fam LR 334, following Re H (Abducr Custody Rights) [1991] 2AC476, [1991] 3 All ER230, cited in Nygh & Davies, em; of Laws in Australia, seventh edn, para 27-13.

80 Re the Marriage ofGsponer (1988) 12 Fam LR 755, cited in Nygh & Davies, Confb. Laws in Australia, seventh edn, para 27-17.

81 See Castel & Walker, Canadian Conflict of Laws, sixth edn, para 18.2.

82 Ibid, para 18.3.

83 Chan v Chow (2001) 199 DLR (4th) 478, cited in Castel & Walker, Canadian Conji.. Laws, sixth edn, para 18.3.

84 Castel & Walker, Canadian Conflict of Laws, sixth edn, para 18.3.

85 See, for example, PolLastro v Pollastro (1999) 171 DLR (4th) 32, and other cases ci~ Castel & Walker, Canadian Conflict of Laws, sixth edn, para 18.3, footnote 29.

86 Aulwes v Mai (2002) 220 DLR (4th) 577, cited in Castel & Walker, Canadian Con, Laws, sixth edn, para 18.3. See also the other cases cited in note 35 of that paragrapJ

orders in custody matters would be recognised on functional lines, that - the order is that of a court with the closest concern with the wellg of the spouses, and the welfare of the minors; a custody order of an ish court was, therefore, recognised when the parties, though married ldia, had lived in England and the child had been born there.87

Indian courts have also strongly deprecated the behaviour of a parent in defiance of custody orders of foreign courts, has removed the child the jurisdiction of that court, and brought the child to India. The it has been held, must not permit a person who commits a wrong :nefit; in all custody cases, the paramount consideration is the welfare le child.88

s India has not implemented the Hague Convention on Child "ction, it is not bound by its terms. The Supreme Court, while eca.ting the practice of a parent removing a child from a country contrary :stody orders in force there, held that faced with such a situation, a t in India must adopt one of two courses of action: it can, at its erion, hold a summary inquiry, and direct the return of the child to country unless such return would be harmful to the child, or it can an elaborate inquiry and determine on merits as to which parent has awarded the custody of the child. It may be proper to hold a summary inquiry if the child had been removed from its natural habitat.89

The paramount consideration in all such cases is the welfare of the child; if a parent has removed the children from the United States contrary 1 interim order of a Texas court, the high court ought not to have Led that the child be returned to Texas; the court should have held a md thorough inquiry before deciding the issue.90

In a case where an American court had passed an ex parte interlocutory Kiy order in favour of the father; the court decided that the welfare of hild was the paramount consideration and the court refused to order erurn of the child to the United States until the high court had finally ed the matter.91

87 Surinder Kaur Sindhu v Harbax Singh SindhuAIR 1984 SC 1224, (1984) 3 SCC 698.

88 E1izabeth Dinshaw v Arvand Dinshaw AIR 1987 SC 3, (1987) 1 SCC 42; Margarate Maria~:darampil nee Feldman v Dr Chacko Pularmpil, AIR 1970 Ker 1; Marilynn Anita Dhillon J1argaret Nijjar (1984) ILR P& HI; Kuldip Sidhu v Chanan Singh AIR 1989 P & H 03; Jacqueline Kapoor v Surinder Pal Kapoor AIR 1994 P & H 309. Indian courts have derred to English decisions.

89 Dnanwanti Joshi v Madhav Unde (1998) 1SCC l12..1:'nt <:O"\:m. R"tQ on McKee v Mckee [1951] AC 352, [1951] 1 All ER 942;J v C [1970] AC 668, [1969] 1 All ER 788; Re L "vfinors) [1974] 1 WLR 250, [1974] 1 All ER 913 (CA).

90 Sarita Sharma v Sushil Sharma AIR 2000 SC 1019, (2000) 3 SCC 14. Hamakrishna Subramanian v Priya Ganesan AIR 2007 Mad 210.

Introduction of Conflict of Law

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