NORWAY, LEAVE THE INDIAN KIDS ALONE

Shocking but true, Barnevarne, a child care service of Norway took custody of Indian children, Abhigyan and Aishwarya from their natural parents Anurup and Sagarika Bhattacharya in May 2011 when they were two and a half years and six months old respectively and lodged them in separate foster homes. They charge the mother Sagarika with “negligence and unable to bring up” the children. A Norwegian Court had ruled that the two children would stay in two different foster homes until the age of 18 and their natural parents would be allowed to meet them only once a year for one hour. Shockingly, the Court adds that only if the couple separated, the custody of the children could be given to the natural father who is employed as a Geoscientist in Norway since 2007. After an international media outcry and a personal meeting of grandparents Monotosh and Shikha Chakravarty with President Pratibha Patil to seek her intervention in getting their two grandchildren back from foster care in Norway, a headway is reported as Norway has agreed to hand over the children to their uncle in India. Earlier letters sent to the Norwegian Government by the Ministry of External Affairs reportedly on December 28, 2011 and January 5, 2011, had not elicited any response. With the visas of Bhattacharyas to stay in Norway expiring in March, they dread leaving the country without their loved ones. The happening, sorrowfully true is appalling.

Should India have agreed and permitted its citizens in Norway to decide matters relating to personal laws. Ironically, as we celebrate our 62nd Republic Day as a Sovereign, Socialist, Secular, Democratic Republic, our citizens abroad are still governed by foreign family laws. While a false sense of euphoria dawns on the horizon as Norway agrees to hand over the Indian children to their uncle subject to a Norwegian District Court accepting the arrangement, larger issues prevail raising disturbing questions. In upholding the applicability of Norwegian laws, Indian sovereignty cannot be subjugated to abdicate the majesty of Indian family laws. The precedent is therefore clearly wrong and this may not be a healthy trend for 30 million NRIs who live in 180 countries abroad. On 26 November 1949, we gave to ourselves The Constitution of India and the power to the State to legislate on any subject. This power is reserved within ourselves and we cannot surrender it to any foreign jurisdiction. In other matters of local civil and criminal laws, Indians may have to follow the law of the foreign domicile, but in matters of personal laws in our homes, the exception of applicability of our family laws must prevail. The sanctity of personal family laws of Indian communities is overriding.

Norway, Denmark, Sweden and Finland have stringent State welfare policies for its nationals which empower them to place children in foster homes to live with strangers. Norwegian Child Protection Services however, ought not to have exercised such rights with respect to Indian children whose religious, ethnic, cultural and linguistic milieu was different and distinct. In any case, custody of children of Indian nationals in Norway ought not to have been taken away from their natural guardians i.e. their parents, unless and until the action was warranted under Indian law applicable to the parties. In this respect, the lack of Consular assistance and non-availability of legal help to the Bhattacharya’s in Norway may have contributed in this abrupt Nordic State action snatching their children away from them. The case thus does require close examination.

The moot proposition on which the Norwegian action is questionable, rests on the fundamental plank that Indian nationals are governed by the personal law applicable to the parties. In respect of Hindus, i.e. any person who is Hindu, Buddhist, Jain or Sikh by religion, The Hindu Minority and Guardianship Act, 1956 (HMGA) has extra territorial application. It also applies to Hindus domiciled in the territories to which HMGA extends who are outside the territory of India. Thus, the Bengali Bhattacharyas carry with them their personal law in their pockets when they live in Norway. Under HMGA, the natural Guardian of a Hindu minor is his father and after him the mother. The custody of a minor child under the age of 5 years shall ordinarily be with the mother. Alternatively, the welfare of the minor is the paramount consideration in the appointment or declaration of any person as a Guardian by a court of competent jurisdiction in India.

The process of appointment of Guardians in respect of minor children in India is governed by the Guardians and Wards Act, 1890 (GWA). Surprisingly, since the HMGA does not have any independent statutory provisions for appointment of Guardians of minors, all parties, whether Hindus or non-Hindus, have to invoke the provisions of the GWA for appointment of a Guardian with respect to a minor child in India. Needless to add, this process is adjudicated by a notified Guardian Judge as the Court of competent jurisdiction in the place where the minor ordinarily resides. There is an explicit provision in the GWA that if the natural father is living, no one else can be declared or appointed to be the Guardian of the minor, unless the Court is of the opinion that the father is “unfit” to be a guardian. This process, would of course, be tested on the fundamental principle resting on what appears to be in the circumstances better for the welfare and in the best interests of the minor. In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex, and religion of the minor besides other factors.

The reported face saving resolution of Dr. Arunabhas Bhattacharya, the 27 year old bachelor brother of Anurup in Kolkata being given custody, subject to a Norwegian Court accepting the arrangement, seems to be an abject surrender to Norwegian laws without considering the applicability of Indian personal laws. Why was the applicability of the HMGA not raised and would the competent Court to decide the custody issue be not as per the HMGA. Hindu family law and not Norwegian laws ought to apply. Nobody probably raised the issue. Thus, these issues remain unanswered. The determination of the custody matter of Indian children of Hindu religion under custody laws of Norway is clearly a wrong application. Subjecting Indian citizens governed by their personal laws to the Norwegian jurisdiction in family law matters is an incorrect precedent contrary to settled Indian law. This fallacious practice will only mar future cases falling for similar determination and put applicability of Indian laws in jeopardy. This disturbing trend must be stalled.

In the backdrop of the above social milieu, the Norwegian action does not seem sustainable. Applying Nordic law to Indian nationals domiciled in Norway who are Hindus by religion does not meet the interpretation of the personal law applicable to the Indian parents. Further, applying European yardsticks of culture, habits and social mores to Bhattacharyas who profess Hindu religion and cultural practices, is not the correct application of the best interests principle for determining the welfare of children. An overzealous Norwegian social set up cannot change the personal law of the parties or usurp the interpretation of principles of upbringing of Indian children and thrust them upon foreign citizens domiciled temporarily in their territory. Furthermore, the yardsticks to be adopted in such a determination is by adjudication before the competent courts under the HMGA read with the GWA. Any Norwegian Court cannot close the rights of Indian parents till their children attain the age of majority. Rights of children cannot be flouted which such impunity. Another disturbing factor seems to be in separating the children and traumatizing them by not letting them grow as siblings is alarming. The brother and sister have a right to grow up in a family together as they were born. This natural order cannot be changed.

The United Nations Convention of the Rights of the Child has been brutally offended in the conduct of the Indian Children being confiscated and put in foster care. The concern is larger. The Right to Family Life guaranteed by the European Convention of Human Rights too has been violated. The dilemma is international and Nordic viewpoint needs to be tested. Forcibly removing children and putting them in foster homes and adoption to foreign parents whilst their natural parents are living, is not in the best interest or the welfare of the child. It would be best if Norway left Indian children alone. In its wisdom, the Indian jurisdiction must intervene and step forward to put its view point before it is too late. It will be a sad story with an unhappy ending if India does not intervene. It is time India expressed its sovereignty in the matter of Indian family laws to Indian citizens in foreign jurisdictions in affairs of personal laws. The future fate of similar matters must not be sealed with an incorrect precedent. Sovereignty of Indian law must prevail.