a. The rights and responsibilities that each parent would have under the relevant family law in India regarding the Guardianship and Custody of the children, with particular regard to age& sex of each child are as follows:

• The father/mother may apply for sole guardianship or exclusive custody in an Indian Family Court, despite the existing Foreign Court order. Indian Courts have the independent authority to decide on matters involving guardianship/custody of children of former/present Indian nationals of Hindu religion under HMGA read with GWA. A Foreign Court order may be one consideration in such proceedings.
• The law governing custody of children is closely linked with that of guardianship. Guardianship refers to a bundle of rights and powers that an adult has in relation to the person and property of a minor, while custody is a narrower concept relating to the upbringing and day-to-day care and control of the minor. The term ‘custody’ is not defined in any Indian family law, whether secular or religious. The term ‘guardian’ is defined by Section 4(2) of the Guardians and Wards Act, 1890 (hereinafter, GWA) as a “person having the care of the person of a minor or of his property or of both his person and property.” Another term used by the law is ‘natural guardian,’ who is the person legally presumed to be the guardian of a minor and who is presumed to be authorized to take all decisions on behalf of the minor. The legal difference between custody and guardianship (or natural guardianship) can be illustrated by stating that under some religious personal laws, for very young children, the mother is preferred to be the custodian, but the father always remains the natural guardian.
• Under Section 6 HMGA, both parents as natural guardians have equal rights and responsibilities regarding the guardianship and custody of their children, regardless of their age or sex. However, if there is any interim or interlocutory or temporary order of custody passed by the competent Family Court in India under Section 12 GWA, the custody, rights & responsibilities of each parent of the child shall be determined in accordance with such order.

b. The legal principles that would apply in respect of such an application;
The Indian court may apply the “welfare of the child” principle, prioritizing the child’s best interests over other factors. Section 13 HMGA and Section 17 GWA, stipulates that in the appointment of a guardian, the Court shall be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. It further prescribes that in considering what will be for the welfare of the minor, the Court shall have regard to the age, sex, and religion of the minor, the character and capacity of the proposed guardian, and his nearness of kin to the minor and any existing or previous relations of the proposed guardian with the minor. Similar principles will apply in determination of custody as well.

c. The court process that would apply in respect of such an application, including whether there would be any independent welfare assessment of the child and / or evidence obtained by the court and whether the child’s voices would be heard in these proceedings;
• As per Indian procedural law, parties would have to advance pleadings by submitting written petitions, giving written responses/written statements and rejoinders supported by affidavits. Thereafter, issues would be coined by the Family Court and both parties would be required to lead oral and documentary evidence on the issues, as per onus decided by the Family Court. The Family Court will ultimately hear arguments and render a decision.
• Under Section 10 FCA, the Family Court can lay down its own procedures with a view to arrive at a settlement in respect of any matter to decide the truth of the facts alleged by one party and denied by the other.
• Under Section 14 FCA, the Family Court may receive an evidence any report, statement, document, or information, which in its opinion would assist it to deal effectually with a dispute, whether such evidence is relevant or admissible under the Indian Evidence Act, 1872.
• Under Section 12 FCA, the Family Court may secure the services of a Medical Expert or such person professionally engaged in promoting the welfare of the family and under Section 13 FCA, appoint a legal expert as Amicus Curiae for obtaining an independent welfare assessment of the child.
• Under Section 13 HMGA and Section 17 GWA, in appointing or declaring a guardian of a minor by the Family Court, the Court shall be guided by what consistently with the law to which the minor is subject, appears to be in the circumstances for the welfare of the minor. In doing so, the Court shall have due regard to the age, sex and religion of the minor.
• Under Section 17 GWA, if the minor is old enough to form an intelligent preference, the Court may consider that preference. However, the determination by the Court shall be exclusively based on welfare of the child.

d. The timescales involved in the application being determined at first instance;
• Timescales which are impossible to predict both in Family Court and High Court/Supreme Court, may vary widely depending on the complexity of the case and the court’s workload. It may be impossible to predict, identify, lay down or state any definite or defined time scales and likely costs or confirm alleged prospects of success in seeking return of the children removed to India from foreign jurisdictions. Besides the details provided above, relating to the procedure and its effectiveness, the following submissions are made in support of this conclusion which are tabulated for ready reference.
• India is a vast territorial jurisdiction comprising of 29 States and 7 Union Territories spread over 3.28 million sq. kilometers. Every State in India has an individual High Court which governs the internal District Courts in the particular territory of that State. The High Court is free to frame its procedural rules regarding practices and rules to be followed within its jurisdiction. Depending on the location of a Family Court or Trial Court i.e. Guardian Judge, the practices in deciding child custody disputes may vary. Hence, the time frame of deciding an inter-parental inter-country child removal may vary as per local rules, practices and procedures.
• That even though India has enacted a Family Courts Act, 1984, it the discretion of every Individual State to constitute a Family Court in its Districts in the State. Hence, majority of the jurisdictions in States in India do not have Family Courts or Specialist Judges trained to handle only Family Court matters. Therefore, a normal Civil Judge in the Trial Court may in addition to his other duties and judicial functions, also be a Guardian Judge under the Guardian and Wards Act, 1890, upon being so notified and designated by the High Court. Consequently, when a matter is before an ordinary Civil Judge in the Trial Court in his role as a Guardian Judge, the time frame within which he will be able to decide a child custody dispute is impossible to predict since his pre-occupation with other nature of disputes on his board may vary. Therefore, by no stretch of imagination any time frame can be predicted. Even when the Judge presiding is a Family Court, a lot may depend on the pre-occupation of the Court with other matters before the Family Court and the workload of the Family Court which again makes it impossible to predict a time frame.
• That if the matter is taken up in a Habeas Corpus writ petition in the High Court or the Supreme Court, it is the pure discretion of the Court to hold a summary enquiry or a detailed investigation in an individual case. India follows a procedure of detailed bulky written pleadings followed by hearing arguments at length. Depending on the pre-occupation of a Bench with other matters and the workload of the Court, it may be next to impossible to define a time frame for deciding a child custody dispute. Even at the High Court or the Supreme Court, there are no dedicated Family Judges or any Family Division. Therefore, depending on the entire roster of the Court and its pre-occupation with other matters, every individual Bench will take up an inter-parental child custody dispute depending on other important matters before the Court. This again makes the whole situation unpredictable in point of identifying a time frame.
• In so far as to costs are concerned, counsel fees, expenses of various nature, travelling costs and overhead expenditure may vary from place to place in different jurisdictions. Since the time frame within which an inter-parental child custody dispute can be decided is unpredictable, the consequential issue of costs involved is also equally unpredictable. Parties may engage local or outstation counsel depending on the expertise as also the budget of parties. Legal fees of counsel varies from jurisdiction to jurisdiction and considering that the decision of the Guardian Judge may be appealed to the High Court and the Supreme Court, both costs and time may multiply in quantum. The High Court may also remand the matter to a Guardian Judge if the case requires evidence to be led which may further prolong both the time factor and costs involved. Hence, it becomes impossible to predict costs involved in the same.
• That the issue of effectiveness of the procedure is again a very open ended answer. If the petition before the Guardian Judge is favourably decided in a positive decision favouring a foreign aggrieved parent, the matter may not rest there. For enforcing the foreign court order directing return of a child, the aggrieved foreign parent may still have to invoke the writ jurisdiction of the High Court or the Supreme Court seeking a direction for the return of the child. Meanwhile, if the decision of the Guardian Judge is appealed against by the abducting parent, the matter may be further delayed. Ultimately as and when a decision comes by the High Court, the matter may be appealed against in the Supreme Court. This process may take time and thus the effectiveness of the procedure is open ended till the last appeal is exhausted in the Supreme Court. The prospects of success are totally unpredictable.

e. The ability of either party to appeal the decision made at first instance, and if applicable, the appellate process and timescales involved in that process;
• Either party may appeal against the decision of the Family/High Court, with the appellate process and timescales varying based on the specific circumstances.
• The final decision of the Family Court is appealable to the High Court of the concerned jurisdiction under Section 19 FCA within a period of 30 days. Even though, there is no further statutory appeal provided against the appellate decision of the High Court, Articles 133 & 136 of the Constitution of India provide Special Leave to Appeal (SLP) to the Supreme Court of India within 90 days.
• Likewise, if the matter is decided in the parens patriae High Court writ jurisdiction under Article 226 of the Constitution of India, against the High Court decision, either party can appeal to the Supreme Court of India under Articles 133 & 136 of the Constitution of India provide Special Leave to Appeal (SLP) to the Supreme Court of India within 90 days.
• It would be impossible to determine or specify the timeframe for the appellate process, as this would be dependent on the pendency of cases before any Bench of the High Court or Supreme Court, where the appeal is filed.

f. The weight that would be put on the relevant family court in India if any, of the foreign Court proceedings concerning the child, and in particular the any foreign authority report or final foreign Court Order that provides for equal shared care of a child made by consent between the parties;

The Indian court may consider the Foreign Court proceedings and orders, but they are not bound by them. Any Report or final order for shared parenting, may have persuasive evidentiary value before the Indian Family Court. However, there will be no mirroring of such Foreign Court orders by the Indian Family Court, which will make it’s own independent decision based on the welfare of the child principles. Thus, the Family Court may make it’s own judgment and decide the matter on merits afresh, irrespective of any findings given by the Foreign Court.

g. The impact on this application, if any, of the Foreign court having determined that the father/ mother had abducted the child to India and foreign Court having ordered a summary return of the child from India.

• The Foreign Court’s determination that the father /mother abducted the child may be at best considered as one consideration only and the Indian Family Court will ultimately decide based on the child’s best interests and welfare. It may be added here that abduction or wrongful removal of a child by the mother, not being a wrong or an offence under Indian law, the mother as natural guardian cannot be considered to have been an abductor under Indian law.

• Depending on the judicial discretion of the Indian Court, it may or may not make a particular order based on an existing order by a Foreign Court abroad regarding the living arrangements of the minor child abroad. The Indian Court whose jurisdiction is invoked for seeking implementation of the Foreign Court order will examine and evaluate the matter independently on merits and the Foreign Court order will form only one consideration among all other factors to determine the best interest and the welfare of the child which will be the paramount consideration. The Indian Court seized of the matter may thereafter summarily return the minor child to the foreign country or hold a detailed enquiry to arrive at the same conclusion or decide differently in its parens patriae jurisdiction. There is no guarantee, assurance or affirmation that the Indian Court order will in entirety implement a foreign Court order though there may be a persuasive value attached to such foreign Court order.
• The only way to seek an implementation of a Foreign Court order concerning the living arrangements of the minor child is to either file a writ of Habeas Corpus in the High Court/Supreme Court or approach the Guardian Judge as submitted in detail above. However, it is the judicial discretion of the Indian Court to decide the matter on merits based on the principle of best interest and welfare of the minor child. There is no other remedy for direct enforcement of the Foreign Court order in totality.
• As stated above, the enforcement is by instituting a petition for the issuance of a writ of Habeas Corpus before the High Court/Supreme Court or seeking custody from the Guardian Judge on the strength of the Foreign Court order. The matter will be thereafter examined on merits and disposed off by a summary or a detailed enquiry at the judicial discretion of the concerned court in India. No time frame or costs can be predicted. It may also be added that there are remedies of appeal in case of an adverse decision and an aggrieved party can take it up further to the High Court or the Supreme Court in appeal which can further prolong the final outcome. Costs will depend on the standing and expertise of counsel and time factor is totally unpredictable and difficult to spell out.
• As already stated in detail above, the Indian Court would view the matter in its parens patriae jurisdiction to decide the best interest and the welfare of the child. The conflicting interests of the father and the mother will not get emphasis as the welfare of the minor will be the paramount consideration. There is no principle of automatic recognition/approval of the Foreign Court order in India. It is the judicial discretion of the Court to decide to uphold or decline the applicability of the Foreign Court order. Nothing can be predicted and assured in advance and it is not at all possible to commit or confirm that the Foreign Court order will be implemented. The independent enquiry of the Indian Court with the Foreign Court order as one consideration will form the determinative basis.
• As already elaborated in detail above, there is no assurance or iron clad guarantee that the minor child will be returned abroad as a matter of certainty if retained beyond the agreed period. Judicial remedies will have to be invoked in India whose costs and time frame are unpredictable as explained at length in paras above.

a. The court process that would apply in respect of such an application, including whether there would be any independent welfare assessment of the child and / or evidence obtained by the court and whether the child’s voices would be heard in these proceedings;
• In answer to this issue, it may be stated that if the mother retains the child in India, a Habeas Corpus petition may have to be invoked to seek the return of the child back abroad. However, in view of the judgments of the Supreme Court of India, the Foreign court order making return mandatory abroad will be only one consideration before the Indian Court and it would be the discretion of the Court to decline the return of the child, depending on the interpretation drawn by the Indian Court in the best interest and the welfare of the child. The Supreme Court has held that Indian Courts would not be “fixated” by the foreign court order and Indian courts cannot be used as a medium for executing foreign court orders. Alternatively, proceedings may have to be taken out for a elaborate enquiry if necessary before the Family Court /Guardian Judge under proceedings in GWA, if so remanded by the High Court concerned. However, since the child, “ordinarily resides” abroad and does not habitually or permanently reside in India, the very issue of jurisdiction of the Family Court /Guardian Judge may be questionable. Therefore, in the absence of India being a signatory to the Hague Convention on Inter-Parental Child Abduction, 1980, and the judgments of the Supreme Court of India, the remedies available in law are difficult and complicated. Hence, the options as of now seem to be limited and intricate in the present scenario.
• In further answer to this issue, it is submitted that under the provisions of the HMGA, following the tender years rule, the custody of a child under the age of five years may be granted to the mother as a statutory preference. However, Indian Courts may be generally inclined to grant the physical custody of an even older child to the mother, considering that the mother may be in a better position to look after the child on a day to day basis, whilst giving visitation, access and temporary custody rights to the father for short periods, when it is possible for the father to be available to look after the child.
• It may be pertinent to point out that in the judgment of the Supreme Court of India in Nithya Anand Raghavan v. State of NCT of Delhi, 2017 AIR (SC) 3137 has held that, “Ordinarily, the custody of a “girl” child who is around seven years of age, must ideally be with her mother unless there are circumstances to indicate that it would be harmful to the girl child to remain in custody of her mother.”
• This position of law is binding on all courts in India under Article 141 of the Constitution as law laid down by the Supreme Court binds all the courts in India. However, in respect of an older child, the best interest and the welfare of the child will be the determining factor for an Indian Court to adjudicate custody disputes of children. If the child is old enough to make an intelligible preference, the court may ascertain the wishes of the child for making a decision. The superior earning capacity of a parent may however, not be an influencing factor in determining child custody rights.
• The Court may make its own independent welfare assessment of the child and/or obtain evidence through Mediators, Counsellors, or other Medical Experts. It would also be in the discretion of the Court to hear the child for an independent opinion.

b. The timescales involved in the application being determined at first instance;
It is impossible to determine or pin-point any time scale or number of hearings which may be involved in the matter. The facts of the case, issues pleaded, law interpreted and the pendency of cases before a Court may determine the time scale which may vary from Court to Court and thus, impossible to predict.
c. The ability of either party to appeal the decision made at first instance, and if applicable, the appellate process and timescales involved in that process;
• Either party may appeal against the decision of the Family/High Court, with the appellate process and timescales varying based on the specific circumstances.
• If the father’s / mother’s petition is decided in the parens patriae High Court writ jurisdiction under Article 226 of the Constitution of India, against the High Court decision, either party can appeal to the Supreme Court of India under Articles 133 & 136 of the Constitution of India provide Special Leave to Appeal (SLP) to the Supreme Court of India within 90 days.
• It would be impossible to determine or specify the timeframe for the appellate process, as this would be dependent on the pendency of cases before any Bench of the High Court or Supreme Court, where the appeal is filed.

d. The weight that would be put on the relevant family court in India if any, of the foreign Court proceedings concerning the child, and in particular the report of any Authority and the final Foreign Court order that provides for equal shared care of the child between the parties made by consent between the parties, it can be elaborated as hereunder:

The Indian High Court may consider the English proceedings and orders, but they are not bound by them. Any report of any foreign authority and the final order for shared parenting, may have persuasive evidentiary value before the Indian High Court. However, there will be no mirroring of such foreign Court orders by the Indian High Court, which will make it’s own independent decision based on the welfare of the child principles. Thus, the Indian High Court may make it’s own judgment and decide the matter on merits afresh, irrespective of any findings given by the foreign Court.

Since, India does not recognize the Hague Convention on Child Abduction, illegal detention or wrongful removal of a child is not considered a wrong or an offence under Indian law. Under the HMGA and GWA, an independent assessment is made of the welfare of the child as the paramount consideration.

Likewise is the practice when a matter is heard by the writ Court in parens patriae jurisdiction under Article 226 of the Constitution of India. In either case, there will be no mirroring of Foreign Court orders.

Furthermore, undertakings or statements on oath made by the parents in Foreign Courts may have evidentiary or persuasive value, but shall not be conclusive proof. They may form only one consideration before the Indian Court. There will be no automatic enforcement of such statements, undertakings or other submissions made on oath. Determination of welfare of child will be independently done by the Family Court in India in its judicial discretion and findings may or may not be agreeable with Foreign Court orders.

In light of the prevailing child abduction law in India discussed above, it is not possible to obtain mirror orders, as this is a concept not known to Indian law. Hence, it is not possible to approach a Court in India for issuing a mirror order on the strength of a Foreign Court Order whereby a mechanical return of children can be sought back abroad if the foreign court order is violated in India.

An independent judicial remedy will have to be invoked in a Court of competent jurisdiction in India for a fresh adjudication and determination on the basis of the principle of the welfare of the child and the best interest principle. The foreign court order granting custody or visitation will form only one consideration before the Indian Court to determine rights of parties.

The independent opinion of the children concerned too may be heard in such a process. However, simply seeking return of children on the strength of a foreign court order is not possible.

There is no provision in Indian law for mirror orders to be passed in the Indian jurisdiction concerning the minor child’s living arrangements made by the Court abroad. Hence, there is no provision under Indian law for enforcing a foreign Court interim order and/or implementing undertakings of parties.

The father/mother can pursue his remedies by filing a habeas corpus petition in the concerned High Court under the extra-ordinary civil parens patriae jurisdiction under Article 226 of the Constitution of India or directly before the Supreme Court under Article 32 of the Constitution of India.

The father/mother may also attempt to pursue guardianship/custody proceedings before Family Court, which may however be unsuccessful if the child is not ordinarily resident in the jurisdiction of concerned Family Court. No independent criminal action is warranted as no offence is made out under Indian law in respect of inter-parental child removal.

The Court’s approach will depend on the facts and evidence presented. The mother may have defences based on the child’s welfare, consent, or other factors.

The Court will determine independently whether any sanction/penalty is called for. In India, the father/ mother may claim domestic violence, financial instability, threat of persecution for child removal and inhospitable social conditions as a defence to child removal. Accordingly, Courts may make an independent decision.

The mother could pursue civil or criminal actions against the father for domestic violence under the Protection of Women from Domestic Violence Act, 2005, or for matrimonial cruelty under the Indian Penal Code 1860.

The mother may also file a divorce petition under HMA on fault grounds and claim interim custody of the child during pendency of the divorce proceedings.

The mother can independently and separately also file a substantive sole guardianship/exclusive custody petition in the Family Court under the GWA/HMGA before the Family Court under FCA.

The mother can also independently claim maintenance under the Code of Criminal Procedure, 1973.

The mother can also take out civil proceedings for an injunction preventing the father from approaching the mother or the child in India.

The court’s approach will depend on the facts and evidence presented. Possible sanctions or penalties include fines, imprisonment, or restraining orders may result. The father may have defences based on the lack of evidence, false allegations, or other factors.

The availability of these remedies concurrently will be time consuming, cumbersome and protracted. Matrimonial cruelty charges under the Indian Penal Code may require personal presence of the father before the police authorities for investigation. Battling for custody of the child may be a tedious and tough task and implementation of visitation rights may be problematic.

a. What safeguards should be put in place in the Foreign Court Order?
• Keeping in view that India is not a signatory to the Hague Convention on Civil Aspects of International Child Abduction and the fact that there is no provision for mirror orders in India, as also the fact that there are no provisions in Indian Statute law to adhere compliance of foreign court inter-parental child custody orders, the following suggestions, safeguards and remedies are being put forth as recommendations in the context of the present case. However, this list of safeguards is by no means exhaustive, and despite safeguards being in place, there may still be an independent determination and adjudication of the best interest of the child by the competent Family Court in India in accordance with the provisions of HMGA/GWA under the provisions of the FCA.

NOTARISED AGREEMENT BETWEEN PARTIES BEFORE LEAVING:
• The father and the mother should enter into a notarized agreement/Memorandum of Understanding to be executed abroad in advance, setting down exact and precise details of the following points before the minor child leaves from abroad. Additionally, to facilitate the travel of the minor child to India, he/she will need a long term / short term India visa on her foreign passport. If the minor child has an Overseas Citizen of India (OCI) status in view of the Indian status of her father/mother, this issue may pose no problem. However, it equally, gives flexibility to stay in India indefinitely without any Indian visa. The following comprehensive suggestions which will form part of the notarised agreement between the parties are set down accordingly as hereunder:
• As a pre-condition of the minor child being brought to India by the father/mother, two family members, associates or close relatives of the father/ mother permanently resident in India, should furnish notarised affidavits stating that they stand surety and guarantee of the minor child’s safe return abroad and would be personally responsible for ensuring that the agreed dates of return of the minor child to abroad are complied with in letter and spirit. Both such guarantors should specify their complete address, contact details, telephone numbers and Income Tax permanent account number (PAN) and unconditionally agree that in the eventuality of any breach, they will assist, cooperate and render all help in initiating legal or other proceedings to enable the return of the minor child abroad. To ensure compliance, both such guarantors should furnish bank guarantees of Indian Rs.50 lacs (about 50,000 GBP) each from an Indian nationalised bank which shall forthwith stand forfeited and payable to the father/mother or his/her nominees upon any default of the conditions of the notarised agreement. Copies of these bank guarantees should be furnished in advance to the father. Both such guarantors should also undertake that they will not resile or withdraw their undertaking before any authority or Court in India and will not be a party to any legal proceedings to favour the father /mother in the eventuality of any breach of the notarised agreement by the father/ mother. They should also undertake that they will cooperate and assist the Foreign Embassy/Consular office in India to ensure the return of the minor child abroad in the eventuality of any breach of the terms of the notarised agreement by the father/ mother.
• The exact travel details when the father/ mother wishes to take the minor child out from abroad to India or any other country should be given. The date of departure, time to be spent in India or any other country and the exact date of return should be clearly specified. The places of stay in India or any other country with exact and complete addresses besides contact details should be spelt out. Local Indian telephone details, email address in use besides local mobile numbers to be used in India or any other country should be disclosed in the agreement. If possible and known all flight numbers of to and fro travel should also be mentioned and specified in writing in the notarised agreement.
• It should clearly be acknowledged, admitted and unequivocally accepted in the agreement by the father/ mother that the minor child is a foreign national who is habitually and permanently resident abroad since birth. Consequently, it should be accepted by the father/ mother unconditionally that only foreign Courts will be competent to decide all questions and issues of custody, welfare, guardianship, access or any other related issues of the minor child’s health, well-being and education.
• The father/ mother should unconditionally agree that he/ she will not file, present or pursue either himself or through any of his relatives, associates, family members or other representatives any petition or application either under the Guardian and Wards Act, 1890 or under the Hindu Minority and Guardianship Act, 1956 or under any other Indian law before any Court in India for seeking custody, guardianship or care or control of the minor child whilst he/she is in India since parties will be bound only by the jurisdiction of the foreign Courts who shall be the only competent courts to decide all matters therein between parties.
• A copy of the final notarised agreement between father and the mother should be furnished to the Consular Section of the concerned High Commission, New Delhi or the closest Consular office exercising jurisdiction on entry into India. A request should be made to the Foreign Embassy/Consular office in India to keep in safe deposit the foreign passport/ OCI Card of the minor child during his/her stay in India with a further request that the Consular office may telephonically or personally enquire about her welfare periodically to guarantee her health and safety whilst he/she is in India. The foreign passport/ OCI Card of the minor child may kept in safe custody may be returned to the father/mother for travel back to the foreign country
• The father/ mother shall guarantee, ensure and stipulate a specified time when the father/ mother whilst in India will be scheduled to be in contact with the other parent abroad by daily telephone/skype contact during the entire tenure of stay in India or any other overseas destination. In addition, the father/mother should be provided regular updates about the minor child’s health and well being. The father/mother should ensure that all dietary requirements, food habits, health and hygiene of the minor child are adhered to as was the case when the child was abroad.
• The father/mother must undertake that whenever deemed necessary, appropriate or desirable, he/ she will unconditionally permit, allow and not obstruct or hinder any personal visit by the father/mother to see and meet the minor child in India if he so wishes. Besides, if so desired by the father/mother, he/she will be permitted to nominate, appoint or authorize, any person, counsel, or any other designated representative to visit and meet the minor child in India to enquire about his/her health, welfare and well-being whilst she is in India.
• The father mother will unconditionally agree not to make any unilateral decisions regarding the education, health, welfare and/or other important issues concerning the minor child. Whilst the minor child is in India, the father /mother will be in regular contact and touch with the father/mother by email, telephone or skype to keep him informed of the minor child’s upbringing issues and /or other relevant details. No decision will be taken by the parent and the other parent will be duly informed and consulted on all major issues concerning the minor child till he/she is in India and does not return abroad.
• The parent concerned will faithfully abide and adhere to all the above conditions and undertake that having taken the minor child to India for particular excursions/holidays, he/she undertakes that there would be no overseas or foreign trips by him/ her alone with the minor child in that particular year.
• That in the ultimate eventuality of the father/mother violating any of the conditions of the notarised agreement, the minor child will be returned abroad forthwith. It ought to be made clear that if the father/ mother exercises opposition, restraint or willful dissent to the return of the minor child back abroad , the father /mother will have full liberty to approach a competent court of Indian jurisdiction for seeking the return of the minor child abroad. In any such petition, application or legal action before any court, police authority or Foreign Embassy/Consular office, the father/ mother should unconditionally undertake not to oppose or contest any such proceeding, petition or action on jurisdiction or welfare grounds. The father/mother should unconditionally accept and agree that only foreign courts would be competent to decide all questions of welfare, custody, guardianship and/or rights of parties.
• The father/mother undertakes that she will not take any decision unilaterally regarding the foreign nationality/foreign passport and/or the foreign citizenship of the minor child. The father/ mother should unequivocally declare that he/she will not apply for any emergency travel documents for the minor child under the Indian Passports Act, or under any other Indian law to enable him/ her to obtain parallel travel documentation for the minor child. All applications, if ever required will be made under the joint signatures of both the parties and no such application or petition will be made by the father/mother in India or elsewhere alone without prior written consent of the other parent.
• That the father/ mother unconditionally agrees that he/ she will be bound by foreign laws and the provisions of the Hague Convention on Civil Aspects on International Child Abduction, 1980. Consequently, the father/mother, should unequivocally agree and accept that he/she will be bound by the definition of wrongful removal or detention of children containing in Article 3 of the Hague Convention 1980 which reads as hereunder:
“The removal or the retention of a child is to be considered wrongful where –
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
• Both parties should unequivocally agree that the definition of wrongful removal or retention of a child as stated in the Hague convention above shall be binding on both parties in India and the father/ mother will not question it whilst in India before any Court in India which will not have jurisdiction over the minor child.
• Accordingly, the father/ mother will be bound by the provisions of the Hague Convention in the eventuality of any breach by her of the conditions of removal or retention of the minor child. The father/ mother should undertake not to adopt any argument or contention that whilst the minor child is in India, the provisions of the Hague Convention, 1980 shall not be applicable since India is not a signatory to the Hague Convention. Being a foreign national and being bound by the Hague Convention, the minor child will be governed by the provisions of the Hague Convention and the father/mother will not adopt any argument to the contrary in India or allege that the provisions of the Hague convention will not apply in India. The father /mother must unconditionally agree to the foreign Court’s jurisdiction.
• The father/ mother will not remove, take away, transfer or make plans to shift the minor child to any other country or other foreign jurisdiction whilst he /she is in India. The father/mother should undertake to strictly adhere to the travel schedule as agreed and settled between the parties. If there is a need, requirement or situation arising for any change or amendment, the father/ mother shall immediately contact the other parent abroad and only upon his/her written consent, make any changes to alter travel plans of the minor child.
• The father/mother will furnish a bond to the tune of 50,000 GBP/Euros/US Dollars abroad to ensure compliance of all the conditions set down in the notarised agreement in respect of the minor child. In the eventuality of any breach, violation or intentional default by the father/mother of any of the conditions of the notarised agreement, the bond shall stand forfeited. Consequently, the sum of 50,000 GBP /Euros/US Dollars in deposit abroad as the bond money, shall stand payable forthwith to father/mother forthwith without any further stipulation.
• The comprehensive agreement between the parties setting down the terms and conditions stipulated above can be the best possible safeguard in the facts and circumstances of any case. However, in the eventuality of a breach or violation of the custody rights of the father/ mother and non-return of the minor child abroad, the matter will be adjudicated before a Court of Indian law before whom the father/mother may prefer a petition only for the purposes of summary return of the minor child in terms of the agreement between the parties. In the event of any such petition being filed by him/her in India, the Indian Court may in its judicial discretion, still exercise its jurisdiction on the paramount consideration of the welfare of the child principle. However, the agreement between the parties, the stipulated terms and conditions and all other agreed clauses of the notarised agreement will carry weight in any such adjudication before the Indian Court. Such safeguards, therefore, may serve as protective measures. Consequently, taking such precautionary measures may be positively beneficial, helpful and useful.

b. What safeguards should be put in place in India? Should any safeguards be in place prior to international travel to India taking place?
• Safeguards in India could involve, lodging a bond, furnishing guarantees or providing a written undertaking to return the child as explained above. In so far the actual effectiveness of any or all of the safeguards is concerned, the following submissions summarised as hereunder are being made.
• In the possible eventuality of the minor child being wrongfully retained in India, the mother may have to seek recourse before a Guardian Judge in a Civil Court or a Family Court and/or alternatively in the High Court exercising territorial jurisdiction at a place where the minor child is physical present in India. Since there is no Central Authority or any equivalent institution exercising powers or judicial authority for directing return of a detained child, unless and until a Court of competent jurisdiction is approached, the matter will not progress. Hence, a formal petition will be required to be moved before the Guardian Judge or the High Court for seeking the return of the minor child.
• That upon an appropriate petition being moved before a competent Court, it will be the judicial discretion of such Court to pass appropriate orders after hearing both the parties. Though, the notarised agreement and all other safeguards suggested above will have persuasive and binding value, such documents executed between the parties do not offer any iron clad guarantee that the minor child will be summarily return simply on the asking and strength of the documents between the parties. The domestic Indian Court as “parens patriae” may in the exercise of the welfare of the child as a paramount consideration take an independent decision on the merits of the case regardless of the agreement and other documentation executed between the parties. There is a likelihood that the domestic Indian Court seized of the matter may conduct an independent investigation on the issue of the welfare of the child wherein, the agreement and other documents are also considered by the Court. If the domestic Indian Court finds reasons to differ, disagree or have a different opinion, depending on its adjudication of the welfare of the child, the Indian Court may in exceptional circumstances decline to return the child. Hence, it is the prerogative and the privilege of the Indian Court exercising “parens patriae” authority over the minor child in its jurisdiction to take a final call to return or not to return the minor child. Hence, there is no hundred percent guarantee that the agreement will be acted upon in all circumstances to the effect that it is implemented in letter and spirit without any variations.
• That in the eventuality of any independent fact finding investigation being conducted by a domestic Indian Court, it may be difficult to predict any time frame within which such hearing will be concluded. Furthermore, it may also be borne in mind that such a decision can also be taken up in appeal before the High Court and the Supreme Court, for which again the time period of final decision cannot be specified or predicted.
• That all the safeguards suggested above are remedial measures and may create pressure or impact on the offending parent to give up and agree to the terms of the agreement and other documents between the parties. If, however, there is extreme opposition, reluctance and refusal by the offending parent in abiding by the terms of the settlement between the parties, coercive methods of revocation of bonds or bank guarantee may be taken up for enforcement. Regardless, even thereafter, this may not ensure the return of the child. This is because resort will have to be still taken in moving a domestic Indian Court where the child is detained for seeking judicial orders for the return of the child.
• Though the safeguards are very extensive, exhaustive and detailed, they do not offer a hundred percent iron clad guarantee assuring and securing the implementation of the agreement and other documents leading to the confirmed return of the child. Other than the safeguards suggested, no other methods can be possibly thought of or contemplated to make the situation better leading to a hundred percent assured and guaranteed return of the child.
• That all the safeguards and remedies suggested above are possible means to avoid and deter wrongful retention of the child. They are meant to secure, reassure and provide possible remedies in case of a breach. Though, it may not be possible for an offending parent to resile, revoke or oppose any such agreement, undertaking, bond, assurance or guarantee, nothing prevents an offending parent to seek reopening of the matter by alleging fresh and new issues arising in the best interest and welfare of the minor child. This process initiated in a domestic Court in India can be a time-consuming exercise. Thus, automatic and axiomatic implementation, without exception of the agreement and understanding between the parties, is not guaranteed. The likelihood of such opposition cannot be ruled out and its determination in a domestic Indian Court may result in a return of the child, but may be a time consuming exercise.

To have the foreign divorce recognized in India, the father /mother may need to file an independent petition in an Indian Court for proving conclusiveness of the foreign judgment and provide a certified copy of the decree absolute. The Court will thereupon assess the decree’s validity based on Indian law and principles.
• It is possible for either husband or wife to unilaterally initiate proceedings for divorce in India under the fault grounds by filing a divorce petition at the District/Family Court located where the marriage of the parties was solemnised. Additionally, the wife has also got the option of instituting a divorce petition at a District/Family Court located where she is residing on the date of the presentation of the petition. No prior consent, intimation or notice is required to be given for instituting a fault ground divorce petition under the HMA. Hence, it is possible for the wife to issue divorce proceedings in India irrespective of the fact that parties may be living outside India. The HMA being the personal law of marriage of the parties governs them as they are Hindus by religion and the HMA has extra territorial application, in as much it applies to territories outside India where the Hindu husband / wife may be domiciled, and /or may have acquired foreign nationality or the citizenship / permanent residence status of any other country.
• In view of the precedents of Indian law on this point, regardless of any pending / fresh divorce proceedings initiated or filed or pending abroad for divorce between the parties, the Indian Court would de hors any such foreign Court proceeding, independently proceed to adjudicate the matter in India. Any decision of the foreign Court or any finding arrived at by the foreign Court, will simplicitor not be mechanically applied or followed or mirrored in India. The Indian Court will require pleadings, evidence and determination as per Indian law separately regardless of any pending, decided or concluded divorce proceeding abroad .
• Any divorce proceeding abroad on the ground of irretrievable breakdown of marriage between the parties will not be valid or enforceable in India as this is not a ground for divorce under HMA. Hence, such a foreign matrimonial decree on this ground will not dissolve a Hindu marriage which will have to be dissolved in India under HMA by a court of competent jurisdiction as per provisions of HMA.
• The test the Indian Court would apply in dissolving a marriage under the HMA would be based on principles of Hindu Family Law which is guided by precedents of Indian Courts interpreting the various fault grounds for divorce. The principles of Civil procedure and law of evidence applicable in India is used by Family Courts but under the Family Courts Act, 1984, the Court may devise its own procedure in independently coming to its conclusions for a decision on merits. In this regard any decision of any foreign Court dissolving the marriage between the parties will not be conclusive of final and will not find any mechanical application in India.
• The “first to issue” principle will have no relevance or meaning in so far an Indian Court adjudicating a divorce petition for dissolving a Hindu marriage under the HMA is concerned. This principle does not find favour or acceptance under the HMA and no credibility will be attached by the Indian Court if there is a divorce proceeding pending or decided by a Court abroad for dissolving the Hindu marriage between the parties as it would still independently decide the matter regardless of such pendency.
• Based on the foreign decree absolute, the parties can also independently and separately file a divorce petition by mutual consent under HMA. Citing the foreign Court decree absolute and after settlement of alimony, child custody & support, maintenance and property division, independently parties can jointly petition a competent Family Court in India under HMA for divorce by mutual consent.

• A decree absolute will not alter the answers to the above questions. A foreign Court decree of divorce on no fault grounds or irretrievable breakdown of marriage is not recognised under the HMA i.e. the law under which the parties were married. Accordingly, the position of the parties will be no different or altered if they had obtained a decree absolute abroad. All the answers to the above questions shall remain the same if the parties had obtained a decree absolute under foreign law. In any case, parties will still have to seek a divorce in India under the grounds available under HMA from the competent Family Court in India under the FCA.