Editorial Note: This is a transcribed speech of Prof Lalit from the JFIEL Conference concluding ceremony that took place on 10th April 2023. It has been edited by Garvit Shrivastava, JFIEL Editor. The full speech can be found here.

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Welcome to everybody who has gathered here as a part of the Symposium. I was told that there have been fruitful discussions in the course of the last two or three days. My role today is very limited. I am here to share some of my experiences on contemporary developments in international law as administered in Indian Courts. We all know various facets of international law, but some of the issues which regularly keep coming before the court and which engage the attention of the court every time are normally on the admiralty side or custody issues, especially when a single parent chooses to leave the shores of a foreign country with the children or a child and multiple issues do arise in these matters and especially the courts are called upon to consider not only the jurisdictional issues in the finest forms but also the welfare issues of the child or the children. 

This is a constant tussle that the courts have to undertake so much so that there are a number of ideas which get thrown up, and the courts do consider or keep oscillating, if I may use that expression, from one end to the other. For instance, the earliest case was Elizabeth Dinshaw, where an American lady had married a Parsi gentleman in this country. Both settled down in the US. Both were blessed with a child. One fine day, this Parsi gentleman boarded a plane along with the child and came to India without even letting the mother know where the child was or the whereabouts of the child. Then, after a lot of enquiries, the mother came to know that the child, now along with the father, is in India. So, she filed what is traditionally known as a Habeas Corpus Petition. The bench presided by Justice V B Eradi, the judgment is of 1989 or 1990 (editorial note: 1987, and available here), acknowledged the fact that the child was holding an American passport and was born American, and therefore, the primary jurisdiction when it came to the welfare of the child would be that of the American courts. Additionally, the fact that the father had secreted the child was also a pointer, which was taken into account by the court and the custody was granted to Elizabeth Dinshaw, the mother of the child.  This case highlights some of the basic concepts which are up for consideration. 

Number one, in that matter, peculiarly, there was a custody order that was obtained by the father in America, and that was the court which was approached the first time rather than any other court in India. So, two issues: number one – which court or which country will have the basic jurisdiction going by the fact that both the children were Americans. So that was answered in the favour of the father, and the second issue, the court having first dealt with the matter in custody issue. So, relying on what is called the committee of courts that we recognize, acknowledge, and respect, the courts having competent jurisdiction and any dicta or any judgment or orders passed by such courts, the principle of the committee of courts would require an Indian court to acknowledge the fact that there is already a process which has been issued by a competent court having jurisdiction and therefore, based on that, we agree to give custody of the children back to the father. It is easier said than done. 

What happens in such matters is if the child is just about three or four years of age, you cannot separate the child from the mother. With a lot of persuasion, we could convince the lady that she may go back along with the children; the husband will provide for the lady with a separate apartment, therefore, the maintenance and other upkeep issues will be taken care of by the husband and give it a try that whether the alleged behaviour that was projected by the wife to be blameworthy on the part of the husband continues or persists. But that is where one has to draw a line as a court. Where do we draw that line? In another round of cases that came up subsequently, the court rejected the theory of the committee of courts. The court then said that as competent courts, we are legally bound to consider the welfare issues of the children, so therefore, the paramount consideration has to be the welfare of the child. So, in some cases, the courts have refused to grant custody on the ground that it would be disastrous to approve the child, which perhaps has taken roots here. What happens in our normal functioning of the courts is that if the action is initiated by the time, you get down to considering it finally (with) a two, or three year lapse. Within those two or three years, the child may have taken admission in one of the schools here. He starts gaining or getting roots here in the Indian soil, in the Indian condition, in the Indian environment, and that becomes a compelling circumstance for the court to consider it favourably in favour of perhaps the parent who secreted away the child. So, we have this constant struggle. 

Now, one case which I had the occasion to consider lately was a case where a Kenyan businessman married a Punjabi girl here in Delhi. They were blessed with a child. He was holding Kenyan as well as English passports. They were blessed with a child who was also given the same status. On the third birthday of the child, the family came to India. The husband went back, but the wife refused to follow, whichled to a tremendous amount of bickering and custody battles between the parties. One of the issues which the husband wanted to project was that he was a businessman of great standing in Kenya. He said that the future of the child is in Kenya because it was almost like an empire that he was leaving behind for the child. So, therefore, what kind of future do you foresee for the child if he stays back in India? We were constituting a bench of three judges. Justice Malhotra and I gave custody to the father, and Justice Hemant Gupta refused in a dissenting note. That is where some of these international law issues do come to the fore. Kenya and India are not signatories to any international conventions. As a result, any orders passed by the Indian courts are enforceable straight away in Kenya. 

So, one of the issues which got thrown up during the discussion was whether if you say that there is any violation of any orders passed by this court and the mother is refused even the access, how are you going to enforce that order. So, we relied on certain judgments of House of Lords where we considered the concept of ‘mirror orders’ to secure the best interest of the child. This requires  you to go to the court stating that the settlement has been arrived at between the parties and seeking to recognise this settlement in Kenyan courts. An order was placed on record based on which we granted custody to the father (editorial note, see here). Later, it turned out that the father filed the proceedings that such kind of order is unknown to law, this mirror order, and wanted to have that order set aside. This is where tremendous complications did arise, which finally led us to contumacious conduct on the part of the husband to recall the order granting custody (editorial note, see here). 

Why I am placing all this before you are, this is one area where, apart from the consistency and definiteness of law or the legal provisions, there are human emotions, and there are issues like welfare of child which stand on a completely different footing altogether. 

Compare this with any normal admiralty cases, arrest of a ship, one of the famous cases is one which was dealt with by Justice Saikia around 1992 and then followed by MV Elizabeth, which was dealt by Justice Dr. TK Thommen (editorial note, see here). The normal concept is very clear that if you have a claim against a ship, in the case decided by Justice Dr. Thommen, it was an insurance claim by the insurance company and in the first case, it was the claim arising out of the fact that the ship had sold away the goods which were supposed to be consigned and delivered to the consignee. So once the ship entered the territorial waters of this country, the ship was ought to be arrested, and the jurisdiction of the courts in those matters to arrest a ship was acknowledged by the Supreme Court. One of the issues in MV Elizabeth was whether the Andhra Pradesh High Court had Admiralty jurisdiction or not. That was decided by the court saying that Andhra Pradesh High Court, to a certain extent, was a successor court which derived its jurisdiction from Madras High Court and since Madras High Court was conferred admiralty jurisdiction under latest patent so Andhra Pradesh High Court would certainly have that.

Another thought that has been going on is, as a court of justice, as High Court, you must acknowledge that jurisdiction which inheres in the court. What do we gather from this? There is a definiteness in the matter. You normally consider that a ship which has been sailing under the flag of a foreign country, the principles which are normally available in IPC, that a carrier, a vessel or a ship or an aircraft, which is flying under a flag of a foreign country has some special status. But it is accepted in admiralty jurisdiction that the moment such a ship enters the territorial waters of this country, then the jurisdiction of this court will certainly extend to that. For instance, if an offence is committed on the high seas on such a vessel, normally the courts in India would not have jurisdiction, except when the matter comes within IPC parameters, i.e., the offender is an Indian, certainly yes. 

Similar issue arose in that Italian Marine’s case (editorial note, read more on JFIEL). It was according to the Italian’s Marines and as well as Republic of Italy, the shooting effect, if at all, had happened from a vessel which was flying the Italian flag; the offenders were Italian Nationals, and as such the victims were Indians, two fishermen from Kerala Coastal part, they seriously challenged the jurisdiction of Indian Courts and that is the judgment by Justice Altamas Kabir and Justice Chelameswar on the point, which accepted that Indian courts do have jurisdiction. What finally may emerge as a tort or whether as a crime, it could be the inquiry by the court that whether these persons are liable or not is a completely different dimension altogether. And that is where some of the very peculiar and, at times very delicate balance has to be maintained. Now those Italian Marines were initially taken into custody and then released on bail on the condition that they shall not leave the shores of this country. Now, the natural course of any litigation in this country takes so much time that the prayer was made on their behalf that allows us to go back to Italy. How does one allow that? So, the Ambassador of Italy gave a personal undertaking that yes, I personally give personal undertaking that I will abide by this, and I shall be responsible in case there is any failure, and behold, there was a situation where these Italian Marines refused to come back. 

So, these are some of the ideas. Of course, we normally have what is called insurance policies, trade business arbitration, these are areas which are very definite. But the normal functioning of a sovereign and the idea that the sovereign has the power to tax its people and the sovereign has the power to take criminal actions against its people gets extended to anybody who is part of or who is within the jurisdiction of that country, and that is where some of the peculiar facts and situations get thrown up for consideration by the court. 

That is why I chose only these two branches where what happens in the custody battles is that you may acquire citizenship of America, but in your heart of hearts, you are still Indian. Especially when a girl finds that she is without any support or without any moral or without any kind of, you know, functional support from the husband, or the situation becomes too alarming for her; the only solace that she can consider finding is going back home along with the children. So that is where some of these delicate issues actually arise. 

I was asked to share some of the views that I have gathered, that I had the occasion, and I came across as a judge, so these are some areas where these matters do have some kind of importance when it comes to courts of law.  The larger point I attempted making was that when it comes to matters which are purely contractual which are purely commercial, we have slightly different attitude, and we go by that definiteness or concreteness in the matter. However, when it comes to personal issues or certain classes of cases, the subject-matter often becomes such that lines are  blurred. It is then the duty of  the courts who are called upon to consider these issues to maintain that delicate balance [between definiteness and affect]. This is all that I wanted to share with you. Thank you so much!