International Family Law
Wednesday, October 17, 2012
Thursday, October 04, 2012
The government’s expert panel on legal issues has recommended a change in the criminal law to prevent the immediate arrest of husbands and their family members against whom police complaints are filed by their wives under the anti-dowry law.
The Law Commission of India, in its latest report, has asked the government to water the anti-dowry law down to allow a woman to withdraw her complaint if a compromise with her husband and his family is possible. The panel also wants to make it a compoundable offence but with a court’s permission.
The Supreme court had asked the law commission to give its findings on whether section 498A of the IPC and enabling laws, which deal with physical and mental cruelty by husbands and their relatives against wives over dowry, require amendments following reports of their misuse.
It has sought an amendment to the Code of Criminal Procedure (CrPC) in a bid to introduce a 30-day “reconciliation” period before police can arrest an accused under the anti-dowry law.
“The need for caution in exercising the drastic power of arrest in the context of cases under section 498A the IPC has been emphasised by courts and parliamentary committees time and again,” states the report.
“We, therefore, suggest that a new clause may be added to the CrPC section 41 to make clear that whenever a complaint of physical and mental cruelty is filed by a married woman, a police officer shall set in motion a process of reconciliation between the two parties before he or she resorts to the power of arrest,” the commission recommended.
This 30-day period, however, will not apply if an investigating officer feels that “facts disclose an aggravated form of cruelty” and the arrest of an accused is necessary, it points out.
It has rejected the demands for either recommending a complete repeal of the anti-dowry law or making it a bailable offence. “Misuse by itself cannot be a ground to take away its teeth … We can’t close our eyes to a large number of cases which go unprosecuted,” the commission stated.
Tuesday, October 02, 2012
The fundamental issue is the reach of the European Court’s disturbing rulings that Hague cases are subject to best interests analyses, as most forcefully enunciated by that Court in the infamous case of Neulinger & Shuruk v. Switzerland in 2010.
In Neulinger the European Court ruled, in apparent derogation of decades of international jurisprudence, that basic norms of human rights -- at least as expressed in the European Convention on Human Rights (the “European Convention”) -- require (a) that courts in every case under the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) must consider the best interests of both the child and the child’s family and (b) that a child should not be returned to its habitual residence, even if that is required by the Hague Convention, if it is not in its best interests to do so.
In the equally disturbing case of X v. Latvia, decided on December 13, 2011, a child was taken from her habitual residence in Australia to Latvia by the Latvian mother. The father in Australia commenced a Hague proceeding promptly and the Latvian court, after a hearing, promptly issued a return order. On appeal the mother asserted that the child would suffer psychologically if she were returned to Australia without her mother. She supported this assertion with a psychologist’s report and claimed that she did not have the financial resources to return to Australia. The appeal failed in January 2009.
Almost three years later the ECHR ruled that the Latvian return order violated Article 8 of the European Convention because the Latvian court had disregarded the psychologist’s report and had not sufficiently considered “what would happen as regards the child’s material well-being if returned to Australia.”
Two judges dissented, asserting that, “Our Court’s function in such matters is merely to verify whether the national authorities followed adequate procedures and conducted a balanced and reasonable assessment of the respective interests of each person” and that “In the present case there is no indication that the Latvian courts disregarded the required procedures or arrived at unreasonable or arbitrary conclusions.”
It is to be hoped that the European Court clarifies its position in a manner that is consistent with the fundamental tenet of the Convention that, while any custody determination must be based on an analysis of the child’s best interests, that issue should be decided by the courts of the country in the habitual residence from which the child was taken and not by the courts of the country to which a child was wrongfully removed or in which the child was wrongfully retained.
For further discussion, see my article, The Hague Abduction Convention and Human Rights: A Critique of the Neulinger Case at:
Monday, October 01, 2012
The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers.
The book covers all critical aspects of the Hague Convention, including procedural and practical issues, habitual residence, consent and acquiescence, rights of custody, common exceptions to the treaty, the child's objections, and international relocation and travel.
Please follow the link below for purchase information from the ABA's website:
ABA: Hague Abduction Convention