Jeremy D. Morley
I have
repeatedly opined, and I have frequently testified, that India is a safe haven
for international child abduction. India has elected not to sign the Hague
Abduction Convention and Indian courts generally do not enforce foreign custody
orders.
In one extremely exceptional case, Arathi Bandi
vs Bandi Jagadrakshaka Rao, (Sup. Ct. of India, 2013), the Supreme Court of
India did ultimately issue a conditional order for the potential return of an abducted child to the United States. However, the
order was issued five years after the abduction. Moreover, the Court provided
any abducting parent with a road map as to how to accomplish an abduction more
effectively than the abducting mother in that case.
In Bandi
the parties were married in Atlanta, Georgia and relocated to Seattle,
Washington where their child was born. In a custody case in Washington State,
the mother was given residential custody of the child but her petition for
relocation to India was denied. In violation of orders of the Washington court
the mother took the child (then age 3) to India in August 2008 and retained the
child there. The Washington court then modified the parenting plan so as to
give custody to the father and a warrant for the mother’s arrest for custodial
interference in the first degree was ultimately issued in Washington State.
The father promptly filed a case in the Andhra Pradesh High Court in India
seeking the return of the child. An array of procedural matters, court
hearings, changes of attorney, police involvements, excuses, family deaths and
other events then transpired. Among other things, the mother brought criminal
charges in India against the father under the notorious Section 498A of India’s
Penal Code. One of the purposes of such a filing in an international child
abduction case is to deter the left-behind father from entering India to
recover an abducted child. All of these devices delayed the case until July 16,
2013 when a decision was issued by the Supreme Court of India that
conditionally ordered the mother to return the child – then age 8 – to the
United States.
In ultimately ordering the child’s
return the Supreme Court stressed that because the mother had herself not
initiated her own custody case in India there was no reason not to order the
child’s return. However, in my experience the abductor usually starts such a
case. And the India courts usually retain the case. It was most unusual in this
case that the mother did not initiate a custody case.
Nonetheless, it took five years for the
Indian courts to complete the case. The child was three years old when he was
abducted and eight years old when the return order was ultimately issued.
Even then,
however, the Indian courts imposed conditions that the father was required to fulfill before any
return order was effective. The various conditions included the following:
i. The father
was required to obtain and pay for airline tickets for the return of both the
mother and the child to Washington State;
ii. The father
was required to deposit the sum of US$5,000 in the mother’s name to enable her
to engage an advocate in the United States;
iii. The father
was required to provide “necessary arrangements” for the stay of the mother and
child “in suitable accommodation in a locality according to her status prior to
the dissolution of marriage for a period of three months on their landing in
USA”;
iv. Prior to
making any travel arrangements the father was required to “move the Court of
Competent Jurisdiction in USA for withdrawal of the bailable warrants issued
against the [mother] to enable her to attend the custody proceedings in the US
Courts”; and
v. Upon the
bailable warrants having been withdrawn, the father was authorized to
personally escort the mother and the child from India to the USA.
In fact the
fourth condition was likely impossible for the father to accomplish since
arrest warrants (apart from bench warrants) cannot be dismissed unless the
United States Attorney or the District Attorney determines that it is in the
public interest to do so. Accordingly, while the order invited further court
proceedings in India because the conditions were not merely onerous but were
unworkable.
Subsequently
the father was required to move to hold the mother in contempt of court and on April
11, 2014 the Indian Supreme Court issued a further order which directed the
wife to supply an attested copy of her and the child’s passports, since the
mother’s failure to provide those documents had prevented the father from
making any travel arrangements. The Supreme Court later listed the matter for
yet another hearing “for directions” on July 15, 2014.
By that date
about six years had elapsed since the child’s abduction.
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