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ABSTRACT

TOPIC – CROSS BORDER/INTERSTATE MARITAL DISPUTES WITH REFERENCE TO


CUSTODY OF CHILDREN AND RESTITUTION OF CONJUGAL RIGHTS

Owing the increase in accessibility of new forms of travel (cross border movement), is not a rarity as it
was a few decades ago. The integrated unit of Family has acquired a global color. International mobility,
opening up of borders, cross border migration and dismantling of inter cultural taboos have all the
positive traits but are fraught with a new set of risks for marital life, caught up in cross border situations.
However, Indian law is yet to match pace with these issues. As such, disputes resulting from such global
families, especially involving inter-parental custody battles have yet to be addressed comprehensively by
the Indian legal regime. The researcher restricts the scope of the paper to marital disputes relating to
custody of children and restitution of conjugal rights. The research is to explore the current Indian
position on custody of children and the future potential in the background of the Hague Convention of
1980 on the Civil Aspects of International Child Abduction.

Once the Indian court decides that it has jurisdiction to entertain the petition for divorce, then it will apply
the personal law of the parties, i.e. the law of the community to which parties belong. English law was
imported to many parts of the world through colonization, and so was the concept of restitution of
conjugal rights, which continues to exist in law, in various forms, in some former British possessions,
including India. In India, the concept has been subject to controversy, and was called by Khardekar (MP),
at the time of the drafting of the Hindu Marriage Act, 1955 (which contains it), "uncouth, barbarous and
vulgar". In 1984, the Supreme Court of India upheld the constitutionality of the restitution of conjugal
rights, in Saroj Rani v. Sudarshan Kumar Chadha, (which found that the action of restitution of conjugal
rights does not violate Article 14 or Article 21 of the Constitution, and is therefore a valid action). Human
Rights Watch has criticized this concept as being a cause of violence and discrimination against women.
The researcher is to analyze the jurisdiction of Indian courts in cases of restitution of conjugal rights when
partied belong to different countries.

LOKACHARI TEJASRI
4th YEAR B.COM LLB (Hons.)
BC0140034