Dr.

Ram Manohar Lohia National Law University

Lucknow,U.P.

SUBJECT: HUMAN RIGHTS LAW

TOPIC:

CIVIL ASPECTS OF INTERNATIONAL PARENTAL CHILD ABDUCTION IN INDIA

(Final Draft)

Submitted to: Submitted By:

Mr. Abdullah Nasir Himanshu Verma

Assist.Prof.(Law) Roll no. 61(10th semester)

Enrollment No. 130101060

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 ACKNOWLEDGEMENT

Any accomplishment requires effort of many people and this work is no different. I take this
opportunity to thank Mr. Abdullah Nasir (Assistant Professor, Law) for giving me such a
wonderful topic for research and providing me valuable training and guidance at the various
stages of my project.

I will also remain highly indebted to the librarian for providing the requisite research material.

Lastly I am thankful to all my colleagues who have given time to help me during the completion
of the project.

HIMANSHU VERMA

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 TABLE OF CONTENTS

1. Introduction- ...……….4

2. Inter-Parental Child Abduction- …...…….4

 Why Parents Abduct Children
 Effect of parental abduction on Child

3. The Hague Convention on International Parental Child

Abduction, 1980- ……...….9
 Functioning of the Convention
 Procedure under the Convention
 Interpreting “Breach of right of custody”

4. Existing Legal Position for dealing with Child Abduction

in India ………..12
 Habeas Corpus can be issued
 Orders relating to custody are interlocutory in nature
 Visiting rights cannot be denied

5. India and the Hague Convention- ………...16

 Why India should join the Hague Convention?

6. Civil Aspects of International Parental Child Abduction

Bill, 2016- .……….18
 Features of the Bill
 Law Commission Recommendation

7. Conclusion- ………..21

8. Bibliography- ….…….22

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 INTRODUCTION

Owing to the advent of technology with the establishment of easier and economic forms of travel
and communication, national boundaries have increasingly become irrelevant for the purposes of
cultural exchanges. As a result, the world has become a far smaller place now than it was a
decade ago. Inter country and inter-continental travel is easier and more affordable than it has
ever been. The corollary to this is an increase in relationships between individuals of different
nationalities and from different cultural backgrounds. Logically, the world in which we and our
children live has grown immensely complex. It is filled with opportunities and risks.
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 children
caught up in cross border situations.

Caught in cross fire of broken relationships with ensuing disputes over custody and relocation,
the hazards of international abduction loom large over the chronic problems of maintaining
access or contact internationally with the uphill struggle of securing cross frontier child support.
In a population of over a billion Indians, 25 million are nonresident Indians who by migrating to
different jurisdictions have generated a new crop of spousal and family disputes.

Statistics show that the number of divorce cases and custody disputes has increased ever since
the advent of globalization and technological development leading to a very busy life-style and
work culture. The international parental child abduction/child removal finds its root here1.

INTER-PARENTAL CHILD ABDUCTION

International parental child abduction or removal can be defined as the removal of a child by one
parent from one country to another without the approval of the other parent 2. Child removal, in
this context, encompasses an interference with the parental rights or right to contact with the
removed child. These acts by a parent when brought before a court of law have in the past
created considerable amount of confusion specifically in the area of competence of courts with
regard to jurisdictional aspects.

1
218th Law Commission Report, 2009
2
http://dosfan.lib.uic.edu/ERC/population/children/9501.html (Last Accessed on 28/02/2018)
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The Convention on the Civil Aspects of International Child Abduction signed at the Hague on
October 25, 1980 with 94 contracting countries today as parties from all regions of the globe,
however defines removal or detention wrongful under Article 133. It says:

“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.”

Why Parents Abduct Children:

There are a number of factors that may cause a parent to abduct his or her child. In depth studies
conducted in the UK, USA and Canada have provided a range of contributory issues 4. Parents
may experience one or more of these factors at any given time. These can be summarized and
divided into discrete categories, as follows:

1. Relationship Issues
 The parent may be frustrated by the parental relationship or have a lack of skills
necessary to resolve a dispute with the other parent.
 The fear of marital separation may motivate extreme measures.
 Power struggles between parents.

2. Revenge
 The abducting parent may want to punish the other spouse.

3
http://www.reunite.org/edit/files/articles/2008%20IFSL%20Contribution.pdf (Last Accessed on 30/03/2018)
4
http://www.academia.edu/7997480/Cross_Border_Parental_Child_Abduction_-_Social_Context_Issues (Last
Accessed on 08/02/2018)
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  The abducting parent may see the removal of the child as a means of taking away
something that ‘belongs’ to the left-behind parent.

3. Security
 To escape physical, sexual or emotional violence.
 To ‘rescue the child’ from the other spouse.
 To avoid persistent feelings of unhappiness or desperation.

4. Fears of Losing Custody

 A ‘last resort’ effort to maintain custody of the child, with the expectation that a
court would remove the child to the other parent without action being taken.
5. Forcing Reconciliation
 An attempt to force reconciliation – threats may be made with the hope that the
other parent will reconsider the situation and attempt to repair the relationship.
6. Uncertainty Regarding the Law
 The abducting parent may not be aware that what they are doing violates the
Hague Convention and acts in the belief that they will not be challenged
(particularly if returning to their home country). They may also not recognise
potential criminal law repercussions to their behaviour.
 Custody order disagreements and uncertainty surrounding the outcome.

7. Other
 The abducting parent wants a better life.
 The abductor fears the values with which the other parent would raise the child.
 To attend more fully to the child’s needs and improve their quality of life
(particularly following the dissolution of a marriage).
 To avoid feelings of fear, unhappiness or desperation.

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EFFECT ON CHILD:

During the time of the Abduction:

Researchers identify child neglect, physical, sexual and emotional abuse as possible effects of
parental child abduction.

a. Emotional Harm-
Children mostly suffer from emotional abuse in the following ways:
 They are victims of a torn relationship;
 They are forced to leave their family and friends;
 They, on occasion, live the life of a fugitive, moving from place to place to escape
authorities.
 Normal relationships are difficult to develop and sustain.
 When the child is told that the left-behind parent does not want him or her
anymore, or has died, the child feels betrayed.

While all children suffer some emotional harm, the nature, extent and duration can vary. There
are several factors that might affect adjustment:

 The age of the child at the time of the abduction;

 The child’s treatment by the abducting parent (and/or significant others);
 The abduction duration;
 Lifestyle during the abduction; and
 The nature and extent of the support and therapy received after recovery

In a study by Reunite International Child Abduction Centre5 in 2006, it was found that the
abduction was often presented as a holiday and as such was not initially traumatic for most
children. However when the holiday became a more permanent arrangement, dawning realisation
that the child was to live with the abducting parent, comes to feel like a betrayal or a deception6.

5
Reunite International Child Abduction Centre is recognized as the leading UK charity focusing on international
child abduction.
6
http://www.reunite.org/edit/files/Library%20-%20reunite%20Publications/Effects%20Of%20Abduction
%20Report.pdf (Last Accessed on 10/02/2018)
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This, together with anxiety about the left-behind parent, had long lasting, adverse consequences
for all children studied. Even those who did not see themselves as being abducted felt angry and
confused with the court battle and the insecurity of their living arrangements 7. Their trust in one
or other of their parents, or sometimes both, was compromised8.

After Reunification:

Upon their return, children are prone to difficulties attaching to the let-behind parent. The most
common psychological disorders identified were:

 Post-traumatic stress disorder

 Reactive attachment disorder
 General anxiety disorder
 Separation anxiety disorder, and
 Learned helplessness.

The 2006 reunite study concluded that it is the return of the child that seems to produce a pattern
of more profound effects, some of which may be long lasting9.

The reunite report suggests that the abduction incident creates an additional dimension to the
difficulties which these families face and which are “then thrown into this already boiling
cauldron.” Children may fear re-abduction, and they want to be safe. This is supported by
Edelson and Lindhorst’s study, which found that parents rated their children as showing
significantly more problems at post-abduction and even post-resolution, when compared to pre-
abduction10.

The Canadian, US and UK studies identified some observable changes in children after they
returned home. In Edelson and Lindhorst’s study, the following were sometimes noticed:
nightmares; sleeplessness, lack of concentration and difficulty making friends; some insecurity,
anxiousness and fear. The 2006 reunite study said that many children suffer from headaches,

7
Ibid.
8
Ibid.
9
Supra note 4.
10
http://fredacentre.com/wp-content/uploads/2010/09/The-Hon.-D-Martinson-and-M-Gregg-Cross-Border-Parental-
Child-Abduction-Social-Context-Issues.pdf (Last Accessed on 01/02/2018)
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stomach cramps and high temperatures, which do not appear to have an organic cause and have
been medically diagnosed as anxiety related.

Finally, the long-term effects of abduction are just beginning to be studied. In a 2012 article,
Professor Carol Bruch describes the possible links between abrupt parental separation (amongst
other adverse childhood experiences) and myriad physical and psychological consequences later
in life, including: heart disease; cancer; shortened life span; depression; substance abuse and
even suicide11. A 2013 study of former abductees found that a majority of participants had
experienced PTSD symptoms, emotional regression and difficulty establishing trust in
relationships.

THE HAGUE CONVENTION ON INTERNATIONAL PARENTAL CHILD

ABDUCTION, 1980

The 1980 Convention is a multilateral treaty, which seeks to protect children from the harmful
effects of abduction and retention across international boundaries by providing a procedure to
bring about their prompt return12.
Despite the reference to “abduction” in its title, the Convention actually more accurately covers
violations of custody rights, encompassing wrongful removals and wrongful retentions of
children13. Ninety-Four countries have ratified the Convention.
The Convention prohibits a parent from removing the child below the age of 16-14 from his/her
place of habitual residence when it is in violation of the other parent or guardian’s custodial
rights. It applies whenever there is a “breach of rights of custody” of one of the parents, which
means that it can be used even when there is no formal custody order in effect.

Functioning Of The Convention:

In a typical case of abduction, the parent or legal guardian takes the child away from the family
and geographical area in which his or her life has developed, i.e. habitual environment, to
another country. Secondly, the abductor hopes to obtain a right of custody from the authorities in
11
http://www.peterhaiman.com/articles/protectingAChild.shtml (Last Accessed on 25/02/2018)
12
https://www.hcch.net/en/instruments/conventions/specialised-sections/child-abduction (Last Accessed on
28/02/2018)
13
http://nujslawreview.org/w0p-content/uploads/2015/02/abhijit-kumar-pandey-and-roshan-santhalia.pdf (Last
Accessed on 29/03/2018)
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the country of refuge. However, if the abductor is uncertain about the potential outcome of
proceedings for custody, he or she is likely to opt for inaction, leaving it to the dispossessed
party to take the initiative.
The Convention seeks to plug these attempts by ensuring that the child is immediately returned
to his or her country of origin. Since the abductor usually claims that his or her action has been
rendered lawful by the authorities of the state of refuge, the Convention states that all subsequent
actions taken by the abductor will be rendered inconsequential 14. This is achieved by declaring
status quo, by means of the prompt return of children ‘wrongfully removed to or retained in any
Contracting State’. While the Convention never contemplated a return remedy for violation of
access rights, Article 21 of the Convention does contain a provision for the protection of access
rights. However, the provision has been narrowly interpreted in courts world over, holding that
that they do not even have jurisdiction to hear a claim for enforcement of access rights.
Thus, the Convention avoids all jurisdictional issues, and ensures that the question of custody
will be decided in the place of the child’s habitual residence (prior to his/her removal). The
Convention does not seek to regulate the problem of the award of custody rights. On this matter,
the convention rests implicitly upon the principle that any debate on the merits of the question,
i.e. of custody rights, should take place before the competent authorities in the State where the
child had its habitual residence prior to its removal. This applies irrespective of whether the
removal occurred prior to any decision on custody being taken, in which case, the violated
custody rights were exercised ex lege or whether the removal was in breach of a pre-existing
custody decision.

The Procedure Under The Convention:

 Any person claiming that a child has been removed or retained in breach of custody
rights may apply either to the Central Authority of the child’s habitual residence, which
has to be constituted as per Article 7 of the 1980 Convention, or to the Central Authority
of any other Contracting state for assistance in securing the return of the child 15. This
time limit is prescribed to account for the possibility that the child may get settled in the
new environment with passage of time and a return to the previous habitual environment
may amount to a second uprooting.

14
Ibid.
15
Article 8, The Hague Convention, 1980
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If the Central Authority receives such an application, and has reason to believe that the child is in
another Contracting State, it is required as per the Convention to directly and without delay
transmit the application to the Central Authority of that State 16. After such intimation, it is the
sole responsibility of the Central Authority to ensure that the child voluntarily returns to the
place of his/ her habitual residence. Once the procedure has been set into motion, the Convention
requires that the judicial or administrative authorities of Contracting States act expeditiously in
the relevant proceedings for the return of children.

Interpreting “Breach Of Rights Of Custody”:

Article 5 of the Convention specifically defines “rights of custody”. It defines right of custody as
“rights relating to the care of the person of the child and, in particular, the right to determine
the child’s place of residence.” 17 The term “custody rights” has been interpreted to include joint
custody, joint responsibility, and joint guardianship.
The Convention however draws a distinction between the right of custody and the right of
access. The breach of the former will trigger return of the child, while a breach of the latter will
not.
The courts in many countries have been faced with the question of whether such a restriction on
removal of a child, would give an otherwise noncustodial parent “rights of custody” within the
meaning of Article 5. Many foreign courts have determined that custody rights are created by
clauses restricting the removal of a child, ne exeat clauses, and therefore an order of return is
appropriate even in favour of the non-custodial guardian.

16
Article 9, The Hague Convention, 1980
17
Article 5, The Hague Convention, 1980
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 EXISTING LEGAL POSITION FOR DEALING WITH CHILD
ABDUCTION IN INDIA

India is not a contracting party of the Hague Convention. Thus, Indian laws that deal with the
principles of custody of children are not too many. To name a few18:

 The Hindu Marriage Act, 1955

 The Hindu Minority and Guardianship Act, 1956
 The Guardians and Wards Act, 1890

The Hindu Marriage Act, 1955, states that a court can pass orders and make such provisions in
the decree in any proceedings under the Act with respect to the custody, maintenance and
education of minor children upon an application for that purpose as expeditiously as possible 19.
Also, the Hindu Minority and Guardianship Act, 1956 defines “minor” to mean “a person who
has not reached the age 18 years”20. And, under the Act, the custody of a child is given to any
person, be it the child’s natural parents or guardian (appointed by the court) with the prime
importance given to the welfare of the child.

The Supreme Court in Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu 21 and Mrs.
Elizabeth Dinshaw v. Arvand M. Dinshaw22 exercised summary jurisdiction in returning the
minor children to the country of their parent.

International child abduction law in India stands substantially modified as a result of the
Supreme Court judgment in Dhanwanti Joshi v Madhav Unde23, handed down on 4 November
1997. It deals with the provisions and case-law analysis relating to the Hindu Minority and
Guardianship Act, 1956, read with the Guardian and Wards Act, 1890 which principally govern
the law relating to child custody in India.

18
http://www.insightsonindia.com/2016/09/05/2-discuss-objectives-significance-draft-civil-aspects-international-
child-abduction-bill-2016/ (Last Accessed on 25/02/2018)
19
Section 26, The Hindu Marriage Act, 1955
20
Section 4(a), The Hindu Minority and Guardianship Act, 1956
21
AIR 1984 SC 1224
22
AIR 1987 SC 3
23
JT 1997(8) SC 720
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Under Indian law, the prime consideration is the welfare of the child, though the Guardian and
Wards Act 1890 says that the custody of a minor who has not attained the age of five shall
ordinarily be with the mother24.

The court held: ‘So far as non-Convention countries are concerned, or where the removal related
to a period before adopting the Convention, the law is that the Court to which the child is
removed will consider the question on merits bearing the welfare of the child as of paramount
importance and consider the order of the foreign court as only a factor to be taken into
consideration as stated in McKee v McKee25, unless the Court thinks it fit to exercise summary
jurisdiction in the interests of the child and its prompt return is for its welfare. As recently as
1996–1997, it has been held in P (A minor) (Child Abduction: Non-Convention Country), Re:
([1996] 3 FCR 233, CA by Ward, LJ) that in deciding whether to order the return of a child who
has been abducted from his or her country of habitual residence-which was not a party to the
Hague Convention, 1980, – the Courts’ overriding consideration must be the child’s welfare.
There is no need for the Judge to attempt to apply the provisions of Art 13 of the Convention by
ordering the child’s return unless a grave risk of harm was established… ’

From the above mandate of law, it is clear that courts in India now would not exercise a
summary jurisdiction only to return the children to the foreign country of their habitual
residence.

It was also held that orders relating to the custody of children are by their very nature not final,
but interlocutory in nature, and subject to modification at any future time upon proof of a change
of circumstances requiring change of custody; but such change in custody must be proved to be
in the paramount interests of the child.

This was the position of law laid down by the Supreme Court of India in Rosy Jacob v Jacob A.
Chakramakkal26, which has since been explicitly reaffirmed in the above-mentioned 1997
ruling.

It was further held that the custody order of a foreign court is only one of the factors which will
be taken into consideration by a court of law in India. The court will draw up an independent

24
Section 6(a), The Guardian and Wards Act, 1890
25
[1951] AC 352
26
1973 (1) SCC 840
13 | P a g e
judgment on the merits of the matter with regard to the welfare of the children. Lastly, superior
financial capacity cannot be a sole ground for removing children from their mother’s custody.

Habeas Corpus can be issued:

The High Courts and the Supreme Court in India entertain petitions for issuance of a writ of
habeas corpus for securing the custody of the minor at the behest of a parent who lands on Indian
soil alleging violation of a foreign Court custody order or seeks the return of children to the
country of their parent jurisdiction. Invoking of this judicial remedy provides the quickest and
most effective speedy solution.

In Paul Mohinder Gahum Vs. State of NCT of Delhi 27, upholding the maintainability of a
habeas corpus petition, the High Court held that the orders passed by foreign Courts granting
custody take a back seat in preference to what lies in the best interest of the minor rather than
what a foreign court has directed. In Eugenia Archetti Abdullah Vs. State of Kerala28, upholding
the right of the US citizen i.e. the petitioner mother before the Court in a habeas corpus petition,
the custody of the children was handed over to the mother after holding that the High Court can
exercise such jurisdiction under Article 226 of the Constitution of India.

Habeas Corpus can be issued in favor of non-citizen also:

It is well established that a writ of habeas corpus can be issued to secure the custody of a minor
child. This can be sought even by a person who is not a citizen of India, as was recently held in
Miss Atya Shamim v Deputy Commissioner/Collector, Delhi (Prescribed Authority under
Citizenship Act)29. The Jammu and Kashmir High Court in this ruling reaffirmed Elizabeth
Dinshaw30 where the Supreme Court of India had issued a writ at the instance of a person who
was not an Indian citizen.

Orders relating to custody are interlocutory in nature:

Justice Mukul Mudgal of the Delhi High Court in the case of Leeladhar Kachroo v. Umang
Bhatt Kachroo31, reiterated the earlier position of law as follows:

27
2005 (1) HLR 428
28
HLR 2005 (1) (Kerala) 34
29
AIR 1999 J&K 140
30
AIR 1987 SC 3
31
2005 (2) HLR 449
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“…In Jaiprakash Khadria v. Shyam Sunder Agarwalla & Anr. II (2000) CLT 212 (SC) : (2000)
6 SCC 598, it was held as under: “Orders relating to custody of children are by their very
nature not final but are interlocutory in nature and subject to modification at any future time
upon proof of change of circumstances requiring change of custody but such change in custody
must be proved to be in the paramount interest of the child.”

Visiting Rights Cannot be denied:

The Supreme Court of India, in a recent ruling in N. Nirmala v Nelson Jeyakumar32, held that
depriving a mother of visiting rights was not justified. This appeal was about the custody of a
minor daughter. The respondent father was permitted to retain custody as legal guardian. A
single judge of the High Court confirmed the custody of the minor daughter with the father but
gave visiting rights to the appellant mother.

Against this order passed by the Single Bench of the High Court, the appellant mother, in search
of an order of custody, went in further appeal before a Division Bench of the High Court, which
by the impugned judgment dismissed the appeal and deprived the appellant mother of her
visiting rights, to which there were no cross objections on the part of the husband respondent.
The matter went on further appeal to the Supreme Court on this judgment being questioned by
the mother.

The apex court held in the above-mentioned judgment (at pp 223–224, para 3) as follows:

‘… In our opinion, such a further adverse order against the appellant was not justified. The
interest of justice will be served if the order of the learned Single Judge continuing the custody
of the minor child with the respondent and as confirmed by the Division Bench is maintained
subject to the modification that visiting right which was denied to the appellant by the Division
Bench be continued… .’

Consequently, the apex court held that depriving of the mother of her visiting rights was not
justified. Hence, the spirit of the final judicial view is again in the best interest of the child, who
was held entitled to receive the love and care of both parents.

INDIA AND THE HAGUE CONVENTION

32
JT 1999 (5) SC 223
15 | P a g e
As of now, India is not a contracting party to the Hague Convention on Civil Aspects of
International Child Abduction 1980. Other than the statutory provisions of law quoted above in
which matters of child custody are agitated in different courts in different proceedings, the
principles of The Hague Convention cannot be enforced in Indian Courts. Different recent
decisions indicate a trend that Indian Courts generally tend to decide the inter-parental child
custody disputes on the paramount consideration of the welfare of the child and the best interest
of the child33. A foreign Court custody order is only one of the considerations in adjudicating any
such child custody dispute between parents34. Foreign Court orders of child custody are no longer
mechanically enforced and normally the Courts go into the merits of the matter to decide the best
interest of the child irrespective of any foreign Court custody order. Hence, the position of law in
India varies from case to case basis and there is no uniform precedent which can be quoted or
cited as a universal rule.

India not being a signatory to the Hague Convention of 1980 on the Civil Aspects of
International Child Abduction, questions regarding the custody of such children are now
considered by the Indian Courts on the merits of each case bearing the welfare of the child to be
of paramount importance while considering the order made by the foreign Court to be only one
of the relevant factors in such decision35.

Why India should accede to the Hague Convention:

 Firstly, India is no longer impervious to international inter parental child removal 36. In
the absence of the Convention principles, the Indian Courts determine the Child’s best
interest whereby any child removal is dealt with like any custody dispute. In this process,
the litigation is a fight of superior rights of parties and the real issue of the welfare of the
child becomes subservient and subordinate. Clash of parental interests and rights of
spouses determine the question of custody. The over powering parent wins to establish
his rights and the resultant determination of the best interest of the child is a misnomer
and a misconception. Such a settlement is not truly in the best interest of the removed
child.

33
Dhanwanti Joshi v Madhav Unde, JT 1997(8) SC 720
34
Ibid.
35
http://www.tribuneindia.com/2006/20060430/society.htm (Last Accessed on 28/02/2018)
36
http://www.tribuneindia.com/2011/20110527/edit.htm (Last Accessed on 28/02/2018)
16 | P a g e
  Secondly, such a determination in India plays into the hands of the abducting parent and
usurps the role of the Court which is best placed to determine the long term interests of
the child, namely the Court of the country where the child had his or her home before the
wrongful removal or retention took place. By contrast, the advantage of the Hague
Convention approach is that it quickly restores the position to what it was before the
wrongful removal or retention took place and supports the proper role played by the
Court in the country of the child’s habitual residence. 37 The correct law to be applied to
the child would be of the country of the child’s origin and so would be the Court of that
country. In India, determination of rights as per Indian law of a foreign child removed to
India by an offending parent may often be clouded and may not be in the best interest of
the child and ought to be determined by the law and the Court of the child’s origin38.
 Thirdly, the fact that India is not a party to the Hague Convention may have a negative
influence on a foreign judge who is deciding whether a child living with his / her parent
in a foreign country should be permitted to spend time in India to enjoy contact with his /
her Indian parent and extended family. Without the guarantee afforded by the Hague
Convention to the effect that the child will be swiftly returned to the country of origin,
the foreign Judge may be reluctant to give permission for the child to travel to India 39. As
a logical corollary of this principle, membership of the Hague Convention will bring the
prospect of achieving the return to India of children who have their homes in India but
have been abducted to one of the 75 States that are parties to the Convention.
 Fourthly, the Convention provides a structure for the resolution of issues of custody and
contact which may arise when parents are separated and living in different countries. The
Convention avoids the problems that may arise in Courts of different countries who are
equally competent to decide such issues. The recognition and enforcement provisions of
the Convention avoid the need for re-litigating custody and contact issues and ensure that
decisions are taken by the authorities of the Country where the child was habitually
resident before removal.

CIVIL ASPECTS OF INTERNATIONAL PARENTAL CHILD

ABDUCTION BILL, 2016
37
http://www.reunite.org/edit/files/articles/2008%20IFSL%20Contribution.pdf (Last Accessed on 30/03/2018)
38
Ibid.
39
218th Law Commission Report, 2009
17 | P a g e
On June 22, 2016, the Ministry of Women and Child Development (MWCD) uploaded on its
website a proposal to enact a draft of the Civil Aspects of International Child Abduction Bill,
201640. This was considered as it was imperative to have an enabling legislation in India before
accession to the Hague Convention. The proposed Bill, to be renamed as the Civil Aspects of
International Child Abduction Bill, 2016, was placed on the Ministry’s website for comments till
July 1341. Hopefully now, a final version may find Parliament’s approval to become a codified
law.

The proposed Bill considers the removal to or the retention of a child in India to be wrongful if it
is in breach of rights of custody attributed to a person, an institution, or any other body, either
jointly or alone, at a place where the child was habitually resident immediately before the
removal or retention42. It further stipulates that the removal to or the retention in India of a child
is to be considered wrongful where at the time of removal or retention those rights were actually
exercised, either jointly or alone, by a person, an institution or any other body, or would have
been so exercised, but for the removal or retention.

The draft Bill was prepared following a reference made by the Punjab and Haryana High Court
to the Law Commission of India to consider whether recommendations should be made for
enacting a suitable law and for signing the Hague Convention. The High Court had made this
reference when a minor child remained untraceable after she was removed from the de jure
custody of the court and taken abroad by misusing an interim order of 2006. The court had
observed in its order that for want of the Indian government acceding to the Hague Convention
or enacting a domestic law, children would continue to be spirited away from and to India, with
courts and authorities “standing by in despair”.43

Features of the Bill:

The salient and salutary features of this proposed law are as follows:
40
http://www.thehindu.com/opinion/columns/anil-malhotra-writes-on-rights-for-abducted-
children/article9072611.ece (Last Accessed in 25/02/2018)
41
Ibid.
42
http://www.insightsonindia.com/2016/10/18/insights-daily-current-affairs-18-october-2016/ (Last Accessed on
25/02/2018)
43
Supra note 40.
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  The Civil Aspects of International Child Abduction Bill, 2016, applies to children under
16 who have been “wrongfully removed to or retained in other State (country) which is
not his/her habitual residence”.
 It mandates the formation of a central authority, with the powers of a civil court, with
which complaints can be lodged in lieu of a court and which can decide all such cases.
 The bill does not provide that which parent should have custody. It will return the child if
he has been found to be wrongfully brought and retained in India. Then legal proceedings
in that country will continue
 The bill does not provide penal provisions against the parent found to have abducted the
child. But the errant parent must bear the expenses incurred by the central authority to
locate the child, the legal costs of the litigating parent, and the expenditures in returning
the child.

The creditable sacrosanct feature in recognizing and retaining the jurisdiction of the High Court
to protect the paramount consideration i.e. the best interest and the welfare of the child, by
carving out exceptions for grounds of refusal has upheld the majesty of law vested in the Indian
courts. But at the same time, this welcome proposed law will be a big relief to distraught children
who have been removed from their parents 44. The temptation to wrongfully remove will also be
deterred. The cruel abduction of NRI children for the purposes of forced marriages will also be
checked45.

Law Commission Recommendation:

The Law Commission had, in its 218th report, examined the same issues and advised the
government to sign the Convention on Civil Aspects of International Child Abduction. Upon

44
http://www.reunite.org/edit/files/articles/2008%20IFSL%20Contribution.pdf (Last Accessed on 19/02/2018)
45
Ibid.
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coming to know that the government has prepared a draft of the Civil Aspects of International
Child Abduction Bill, 2016, the Commission decided to examine the proposed provisions46.
The commission is of the opinion that it requires revision keeping in view the legislative
precedents and practices followed in the drafting of Bills and to suitably harmonise its provisions
with the Hague Convention.

The 21st Law Commission in its first report on Monday (17/10/2016) recommended a series of
changes in the draft Civil Aspects of International Child Abduction Bill-2016, proposed by the
Women and Child Development Ministry, including one-year jail term for wrongful retention or
removal of a child from the custody of a parent. The offenders may include one of the parents or
family, relatives and others47.

The Commission has, in its revised “The Protection of Children (Inter-Country Removal and
Retention) Bill, 2016”, also recommended three months’ punishment for wilful
misrepresentation or concealment of fact as regards the location or information about the child or
for voluntarily prevent the safe return of the child48.

The Law Commission handed over the report to the Centre, observing that it has prepared a
comparative statement showing the provisions of the said draft Bill, as upload on the website of
the Women and Child Development Ministry, and the revised Bill recommended by it, indicating
the modifications.

CONCLUSION

46
http://icnindia.in/law-commission-suggests-changes-in-govt-draft-bill-on-child-abduction/ (Last Accessed on
19/02/2018)
47
http://www.civilsdaily.com/law-commission-suggests-changes-in-govt-draft-bill-on-child-abduction-i/ (Last
Accessed 19/02/2018)
48
Ibid.
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The number of cases related to inter-parental child custody conflicts has gone up sharply. As
more and more marriages fall apart, non-resident Indian parents often remove their children to
India or to foreign jurisdictions either in violation of a foreign court custody order or in
infringement of the other spouse’s parental rights. The Hague Convention, a multilateral treaty
developed by the Hague Conference on Private International Law provides an expeditious
method of returning a child taken from one member nation to another. But though the
Convention concluded on 25 October 1980 and the treaty became effective from 1 December
1983, India is still not a signatory despite the fact that it has been accepted by 94 nations so far.

The Convention was drafted to “ensure the prompt return of children who have been abducted
from their country of habitual residence or wrongfully retained in a contracting state not their
country of habitual residence.” The primary intention of the Convention is to preserve whatever
status quo child custody arrangement existed immediately before an alleged wrongful removal or
retention thereby deterring a parent from crossing international boundaries in search of a more
sympathetic court. The Convention applies only to children under the age of 16.

But “Inter-parental child abduction” is neither defined nor is it an offence under any statutory
law in India. Hence, it is extremely difficult to prove or establish child removal at the hands of a
parent who is a natural guardian of the child. The most expeditious remedy is to file a Writ of
Habeas Corpus in the High Court or the Supreme Court for return of custody by a parent on the
strength of a foreign Court order or in violation of parental rights. The alternative remedy is to
initiate guardianship proceedings under the Guardian and Wards Act, 1890 by leading evidence
and placing all cogent material on the record before a Guardian Judge. Process is cumbersome,
tedious and time consuming. Also difficult and slow for a foreign parent.

The best possible solution would be to become a signatory to the Hague Convention for which
India has come up with a Draft of The Civil Aspects of International Child Abduction, 2016.

The bill will provide an enabling legislation to implement the provision of the Hague convention
that provides an expeditious method for returning a child. The bill if passed will adequately deal
with the menace of International Parental Child Abduction.

BIBLIOGRAPHY

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 Statutes:
1. The Hindu Marriage Act, 1955.
2. The Hindu Minority and Guardianship Act, 1956.
3. The Guardians and Wards Act, 1890.
4. Indian Penal Code, 1860

 Websites:
1. http://dosfan.lib.uic.edu/ERC/population/children/9501.html (Last Accessed on
28/02/2018)
2. http://www.reunite.org/edit/files/articles/2008%20IFSL%20Contribution.pdf
(Last Accessed on 30/03/2018)
3. http://fredacentre.com/wp-content/uploads/2010/09/The-Hon.-D-Martinson-and-
M-Gregg-Cross-Border-Parental-Child-Abduction-Social-Context-Issues.pdf
(Last Accessed on 01/02/2018)
4. http://www.peterhaiman.com/articles/protectingAChild.shtml (Last Accessed on
25/02/2018)
5. https://www.hcch.net/en/instruments/conventions/specialised-sections/child-
abduction (Last Accessed on 28/02/2018)
6. http://nujslawreview.org/w0p-content/uploads/2015/02/abhijit-kumar-pandey-
and-roshan-santhalia.pdf (Last Accessed on 19/03/2018)
7. http://www.thehindu.com/opinion/columns/anil-malhotra-writes-on-rights-for-
abducted-children/article9072611.ece (Last Accessed in 25/02/2018)
8. http://www.tribuneindia.com/2006/20060430/society.htm (Last Accessed on
28/02/2018)
9. http://www.tribuneindia.com/2011/20110527/edit.htm (Last Accessed on
28/02/2018)

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