More than three crores of Indians live in the foreign countries, having cross border matrimonial relationships.
Impact on Children from break down of cross border marriages:
- When such a kind of diverse family unit breaks down, children (sometimes babies) suffer, as they are dragged into international legal battle between their parents.
- Children from such a marriage suffer as they are dragged into an international legal battle between their parents.
- Inter-spousal child removal can be termed as most unfortunate as the children are abducted by their own parents to India or to other foreign jurisdiction in violation of the interim/final orders of the competent courts or in violation of parental rights of the aggrieved parent.
- The child is taken to a State with a different legal system, culture and language.
- The child loses contact with the other parent and is transplanted in an entirely different society having different traditions and norms of life.
Law Commission’s remark on outcomes of such break ups:
- The Law Commission of India, led by Justice B.S. Chauhan, a former Supreme Court judge, describes inter-spousal child removal as one of the most unfortunate outcomes of such break ups.
- Children are “abducted” by one parent and taken to a country with a different culture.
- The Protection of Children (Inter-Country Removal and Retention) Bill, 2016 seeks to address the issue.
- The Commission’s draft is in consonance with the principles of the Hague Convention on the Civil Aspects of International Child Abduction, 1980, which seek to protect a child from the harmful effect of wrongful removal and secure prompt return and reintegration of the child in an environment of his/her ‘habitual residence’.
- The Commission proposes to apply the law to those wrongfully removed or retained children in India who have not completed 16 years.
The Protection of Children (Inter-Country Removal and Retention) Bill, 2016:
- The Bill defines ‘wrongful removal or retention’ as an act in breach of custody to a person or an institution or any other body under the law of the country in which the Child was habitually resident immediately before the removal or retention.
- The court can order the return of a child who has been wrongfully removed or retained in India and if a period of one year has not elapsed from the date of removal or retention.
- The court can order return if it is established that the child is not settled in his/her new environment. I
- It can refuse to order return if returning would expose the child to harm or if the child, on attaining an age and level of maturity, refuses to go back, among other conditions.
- The Bill also recommends the setting up of a Central Authority tasked with discovering the whereabouts of the child.
The Central Authority will perform the following functions:
- The authority will help in preventing harm to the child
- Secure the voluntary return of the child to his or her habitual residence.
- Exchange state, institute judicial proceedings in the High Court concerned to secure the return of the child.
- Provide free legal aid advice and make administrative arrangements for the return of the child.
The Hague Convention on the Civil Aspects of International Child Abduction:
- The Convention came into force in 1983.
- Over 90 countries are signatories to it, India is yet to sign it
- As per the convention, if a child is removed from his or her place of habitual residence, then they must be returned.
- It is a multilateral treaty on custodial issues of children.
- The Convention seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to ensure their prompt return.
- The convention is intended to enhance the international recognition of rights of custody and access arising in place of habitual residence, and to ensure prompt return of the child who is wrongfully removed or retained from the place of habitual residence.
- It seeks to return children abducted or retained overseas by a parent to their country of habitual residence for the courts of that country to decide on matters of residence and contact.
- The convention shall apply to any child, up to the age of 16 years who is a habitual resident of any of the contacting states.
Why India should sign this convention?
- India’s accession to the Hague Convention would resolve the issue since it is based on the principle of reverting the situation to status quo ante.
- It is based on the principle that the removed child ought to be promptly returned to his or her country of habitual residence to enable a court of that country to examine the merits of the custody dispute and thereupon award care and control in the child’s best interest.
- This is because the courts of the country where the child had permanent or habitual residence are considered to best determine the child’s interest.
Criticisms of signing the Convention:
It would be disastrous for many reasons for India to sing the Convention.
- Meaning of abduction:The Convention deals with what has come to be known as “international child abduction”. The Law Commission of India has recently addressed the issue, and the first and most important point made by the Commission is that the word “abduction” when used by a parent is misplaced as no parent can ‘abduct’ her own child.
- Absence of domestic law:Indian law does not automatically recognise foreign judgments. Now by signing the Hague Convention, we will be compelled to recognise a foreign judgment regardless of the justness of the decision on custody under Indian law or whether was delivered ex-parte.
- Several non-resident Indian women, estranged from their husbands are against this convention. Most of them have relocated from the countries they were staying in the West to India to escape abusive husbands. In case India signs the Convention, these women will have to let go of their children.
Why a domestic law in this regard is necessary?
- There is no codified family law or specific child custody laws under which children can be returned to their homes in a foreign jurisdiction.
- An aggrieved parent with a foreign court order requiring return of the child finds no slot in the Indian legal system, wherein a wholesome statutory remedy can be invoked for effective relief.
- The Indian legal system provides succour by invoking the habeas corpus writ.
- Bitter disputed custody battles requiring conventional evidence to be established fall under the outdated Guardians and Wards Act, 1890.
Laws protecting child rights in India:
- The principle of ‘best interests of the child’ can also be found in the provisions of the Convention on the Rights of the Child, 1989, which came into force on 2nd September 1990.
- India ratified the Convention on 11th December, 1992. The Juvenile Justice (Care and Protection of Children) Act, 2000, (as re-enacted by Act 2 of 2016) defines the term ‘best interests of the child’ as “best interest of child” means the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and 3 needs, identity, social well-being and physical, emotional and intellectual development.’
The problem of child abduction is real, and India, with its diaspora spread over the globe, needs to work on the issues addressed by the Hague convention while ensuring that the remedy is compatible with the convention on the Rights of the Child. The aspects of ensuring the safety and well-being of the child through state intervention is of significance.