The Chief Justice further endorsed recent decisions by the Supreme Court of India determining that courts in India should entertain full (and obviously extremely lengthy) analyses of the “best interests” of children abducted to India, which as he explained had deviated from “the earlier approach of the Supreme Court, wherein the minor child was returned to the country of habitual residence, or from where he was removed, leaving the matter to the Court of the parent country.”
It is most unfortunate that his speech underscores -- and purports to justify -- India’s well-deserved reputation as a safe haven for international child abduction.
- “In India, the idea that a parent can abduct his or her own child, seems culturally unacceptable. Further, to bring the criminal law of kidnapping or abduction into family fights, is to accelerate a hostile situation, which would directly impact the welfare of the concerned child. A violent marriage, an abusive marriage, a marriage causing a sense of deep hurt… entail differing degrees of distrust and suspicion, these impact even the sense and sensibility of the child. Courts are put in a difficult situation, while deciding custody issues, between different levels of distrust and finding a safe haven, for a child with the singular option… to develop hatred towards one of the parents within the boundaries of the custodial parents’ place of residence.
- The Hague Convention, which at present has 95 signatories, aims to protect children from the harmful effects of international abduction by a parent, by encouraging the prompt return of the abducted child, to the country of habitual residence. And to organize or secure, the effective rights of access to the child. Custody and visitation matters, it is felt, should generally be decided by the proper court, in the country of the child’s habitual residence.
- The Convention on the Rights of the Child of 1989, also reflects the need to come together for protection of the child, and for every aspect related to children’s welfare. Though, this Convention has not delved into the details pertaining to child custody, as have been dealt by the Hague Convention of 1980, it weaves an overall matrix with regard to child rights, proposing cooperation at the global level. The Convention recognises the right of the child, to live with his or her parents, and the need for judicial determination – in case of separation of parents. The issues’ sensitivity requires States to be obligated, to maintain personal and direct relations with both parents, and thereby, protect and honour the rights of children. The Convention on the rights of the child, calls upon States to promote conclusion of bi-lateral and multi-lateral agreements, and to take measures for combating illicit transfer of children – to locations beyond a child’s habitual residence. The Convention also requires the States to make arrangements, for the return of children to the country of the child’s habitual residence.
- After India became a party to the Convention on the Rights of the Child, concerted efforts have been made in India, to deal with various aspects of child welfare. Positive outcome can be witnessed in legislations like the Juvenile Justice Act (2015), the Protection of Children from Sexual Offences Act (2012), the Prohibition of Child Marriage Act (2006), the Commissions for Protection of Child Rights Act (2005)… and so on. But in terms of existing laws in the area of child custody, the legislative activity has been limited to the domestic sphere like the Hindu Marriage Act, 1955; the Hindu Minority and Guardianship Act,1956 and the Guardians and Wards Act, 1890.
- India has not ratified the Hague Convention for multiple reasons – including the prime one, that it is disadvantageous to Indian women, as there are far more cases of Indian women escaping bad marriages abroad, and returning to the safety of their homes in India; than non-Indian women who are married to Indian men, leaving India with their children. In 2009, the Law Commission of India, headed by former Supreme Court Judge, had submitted a report recommending, that the government ratify the Hague Convention. In February 2016, the Punjab and Haryana High Court while dealing with a child custody issue, asked the Law Commission of India, to resubmit its recommendations to the Government, with its recommendation to sign the Hague Convention. Based on these recommendations, the Women and Child Development Ministry in June 2016 issued a draft of the Civil Aspects of International Child Abduction Bill, 2016 (and a notice on the bill, No. CW-I-31/59/2016-CW-I of June 22, 2016) which reflected the provisions of the Hague Convention, and would pave the way for India’s accession to it.
- The Law Commission of India has also recently proposed some modifications in the above-mentioned Bill, and re-named as – “The Protection of Children (Intercountry Removal and Retention) Bill, 2016”. This Bill seeks to address the violation of custody, or access rights by providing for a full-fledged framework. This Bill also provides for constitution of a Central Authority, which will have a major role in discovering the whereabouts of the removed/retained child, and in securing the return of the child, and also, in provisioning for legal aid. It also proposes to empower the High Court to determine the issue of return of the child, despite lapse of sufficient time. At the same time, on certain grounds – like objection by the child, or exposure of child to grave risk etc. the return of the child can be denied.
- As of now the void is being taken care of by the Indian judiciary. The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare of the child, and not the rights of the parents under a statute.’ In 1998 in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, the Supreme Court held, that since India was not a signatory to the Hague Convention, it could decide the question of child custody on the merits of the case keeping in view the principle of best interest of the child. This judgment was a departure from the earlier approach of the Supreme Court, wherein the minor child was returned to the country of habitual residence, or from where he was removed, leaving the matter to the Court of the parent country. The Supreme Court in Mausami Moitra Ganguli vs. Jayanti Ganguli AIR 2008 SC 2262 held, that ‘no statute on the subject can ignore, eschew or obliterate the vital factor of the welfare of the minor’. Recently in Surya Vadanan v. State of Tamil Nadu AIR 2015 SC 2243 the Supreme Court again pronounced the principles that needed to be kept in mind while dealing with inter-country removal and return. These involved the recognition of the principle of ‘comity of courts and nations’ along with the principle of ‘best interest and welfare of the child’. Though governmental efforts have gained momentum in the recent past to fully realize the obligations laid under Article 11 of the UN Convention on the Rights of the Child, the courts in India are consistently trying to guard the best interests of the child.
- It has been claimed that if India becomes a signatory State to the Hague Convention, it will lead to a less complicated and a more efficient process… in addressing the issue of wrongful removal or retention of children.”