DILEMMAS OF PARENTAL CHILD ABDUCTION

X, a ailing NRI father suffering from an inoperable brain tumor dies in UK unable to meet his daughters brought to India in defiance of British Court orders.

        Y, an NRI mother recovers her abducted son in USA after 8 years of a legal battle against her husband who had “abducted” their son from UK and brought him forcibly to India.

            Z, an NRI father is reunited by compromise with his sons in India after 15 years of their removal from UK by their mother in contravention of a British Court’s directions.

         N, an NRI father who unsuccessfully litigated in India against his former wife for the custody and return of his son to UK as per British Court’s orders cannot return to India to meet him having been declared a proclaimed offender in criminal court proceedings in India arising out of their marital discord.

            M, a foreign national fights for custody in Indian Courts against her foreigner husband who detains their only daughter in India after the minor is removed to India from UK violating her parental rights.

            G, an Indian wife is lured to India by her NRI husband’s parents and abandoned in India without a passport in order to cut her off from her baby daughter in UK. A British Court permits her re-entry into UK and reunites her with her two years old daughter.

            These are some shocking real life encounters of fall-outs of broken NRI marriages whose unfortunate victims are the offspring of such unions. Other innumerable uncontested cases from other foreign jurisdictions find no solutions due to lack of availability of appropriate statutory remedies in the Indian legal system for enforcement of foreign court custody orders.

Unresolved two way concept

Nine million Punjabi NRI’s constitute the biggest community from any Indian State to contribute to the total of 30 million NRI’s living worldwide. Resultantly, Punjab has the largest share of NRI related family law problems emerging from such massive cross-border flow. The most rapidly developing unique offshoot in such spousal and family disputes is inter-parental child removal. The concept is not clearly defined in any Indian legislation. As a matter of convention, it has come to mean the removal of a child from the care of the person with whom the child normally lives. Removal of a child from one country to the other without the approval of the other parent or permission from a court, whether inadvertently or not amounts to inter-parental child removal.

Today, removal of children across borders has also acquired a dual carriageway dimension. Earlier, cases of foreign children brought to India against parental consent were common citations. Now, the reverse is also true and child removal from India makes it a two way street. However, how would Indian Courts deal with situations when Indian children were removed to foreign jurisdictions in violation of local court orders or parental wishes. Which law would apply and how would it extend to a foreign country. Clearly, there is no international law instrument that can be invoked and the only remedy with the aggrieved parent would be to invoke the national law of the foreign country where the child is wrongfully retained. Easier said than done. Visa formalities, traveling expenses, litigation costs and above all foreign court procedures would be insurmountable deterrents. It seems the problem defies solutions and workable remedies.

Remedies sans Hague Convention

The Hague Convention on Civil Aspects of International Child Abduction, 1980, a multi-lateral treaty developed by the Hague Conference on Private International Law provides an expeditious method to return a child from one member nation to another. The Hague Convention has 80 nation member signatories but, sadly, India is not a part of it. The Convention seeks to protect children internationally from the harmful effects of their wrongful removal or retention and ensures their prompt return to the country of their habitual residence.

As a paradox, Inter-parental Child Removal is neither defined in any Indian legislation nor is it an offence under any statutory law in India. This is compounded by the fact that India is not a signatory to the Hague Convention. Hence, the only expeditious, emergent and effective remedy most sought after in matters of Inter-country Child Removal is by invoking the writ of Habeas Corpus in a High Court directly to secure protection of the life and liberty of children detained by one parent either against the children’s wishes or the other parent’s rights. Different High Courts within India have different precedents on the maintainability of such a petition due to lack of any codified law on the subject and it may sometimes be extremely difficult to establish that children are in illegal detention of a parent. The Supreme Court considers a foreign Court custody order as only one feature for consideration in such matters. Alternatively, upon the aggrieved parent being relegated to seek guardianship orders of their own children under The Guardian and Wards Act, 1890, a tedious, time consuming and cumbersome procedure follows which is riddled with delays and it often frustrates the entire exercise since a desperate parent may not even achieve visitation rights leave alone the custody of children. Surprisingly, the Hindu Minority and Guardianship Act, 1956, does not even have any independent provisions for making an application for obtaining a Guardianship order.  The result, children are reduced to being a trophy to be won by a parent with superior rights. The welfare of the children being the paramount consideration is nowhere to be seen.

No voice of the child

The plight of the NRI child in interparental child custody litigation in India is now becoming a very debatable issue. Hotly contested litigations ensue with one parent obtaining restraining orders from a foreign court in answer to a habeas corpus petition by the parent in India. Whoever has custody of the child is the better placed parent. Why is it a battle of superior parental rights. Where is the voice of the child. Who seeks his opinion. Who should talk to him. Can his welfare be decided without speaking to him. In the absence of any international treaty, convention or reciprocal arrangements, Indian court orders cannot be enforced in foreign jurisdictions. What then are the remedies. Where are the solutions. What is to be done. These are now only some issues at stake.

Existing Remedies

The Family Courts Act, 1984, was enacted to provide for the establishment of Family Courts by State Governments in consultation with the High Court with a view to promote conciliation in, and to secure speedy settlement of disputes relating to marriage and family affairs. Ironically, 28 years have gone by and neither Chandigarh nor Punjab or Haryana have Family Courts. Hence, all matters pertaining to guardianship, custody and access to minors are adjudicated by conventional proceedings under marriage laws before the designated Civil Judges exercising powers under of the Guardian Judge under the Guardians & Wards Act, 1890. As a basic principle, the Guardian Judge exercises jurisdiction only if the minor ordinarily resides within the territory of the Court. Often, temporary residence within India, after removal of a child from a foreign country does not fulfil the requirement of the phrase ordinarily resides for the Guardian Judge to exercise jurisdiction. Thus, if the Guardian Judge finds that he has no jurisdiction to entertain the proceedings, he cannot pass any order or issue any direction for the return of the child to the country from where the child was removed, no matter such removal is found to be in violation of an order issued by a Court in a foreign country. Consequently, in such a situation, an aggrieved foreign parent has to move a High Court under its writ jurisdiction for redressal and return of the child to the foreign country, as, this would be the only other remedy legally open to  such parent for further relief. An unsuccessful abducting parent can also move within India and defeat the territorial jurisdiction of the Court rendering the aggrieved parent to move yet another Court by jumping jurisdictions and absconding. Abuse of this process can make it dodgy slow and lengthy. Thus, multiple proceedings, different remedies, slow moving procedural hearings and delay does not serve the best interest of the child or the parents.

The possible solution

With the increasing number of migratory Indians and Overseas Citizens of India status, inter-parental child removal needs to be resolved on an international platform. It is no longer a local problem. The phenomenon is global. Parallel Court proceedings in two jurisdictions by warring parents reduce the child to be won over as a trophy at the end of a legal war. Steps have to be taken by joining hands globally to resolve these conflicts by interaction of Courts and countries. Till India does not become a signatory to the Hague Convention on Civil Aspects of International Child Abduction, this cannot be achieved. It is equally important to create a domestic uniform law with clear authentic and universal child custody principles before India accedes to the Convention. The machinery to implement the convention must first be devised. Divergent views only divide children. Removed children cannot be allowed to live on a no man’s island. The temptation to wrongfully remove children must be deterred. The cruel abduction of children must find a clear and simple legislative solution forthwith. Law makers must act in the best interest and welfare of children in interest of humanity.