What happens to the child who has been
abducted? What are his or her rights?
Problems in Indian System
- There are several legal issues confronting the issue of transnational inter-spousal child removal.
- There are no codified family laws or specific child custody laws.
- An aggrieved parent with a foreign court order requiring return of the child finds no slot in the Indian legal system, wherein a wholesome statutory remedy can be invoked for effective relief.
- The Indian legal system provides succour by invoking the habeas corpus writ.
- Bitter disputed custody battles requiring conventional evidence to be established fall under the outdated Guardians and Wards Act, 1890.
- Parents then have to seek resolution of rights of access, custody, guardianship and visitation as a last resort of the proof of their superior parental rights.
Converse reality & Hague Convention
- Children from India are also being abducted abroad and cannot be traced there or legally directed to be returned.
- Ninety-four states are party to the Hague Convention on Civil Aspects of International Child Abduction, which desires
- To protect children internationally from the harmful effects of their wrongful removal or retention
- To establish procedures to ensure their prompt return to the State of their habitual residence,
- To secure protection for rights of access”.
- India is not one of them.
- The question of India’s accession to the Convention first came about in 2007, but reached no logical end.
- Meanwhile, in India, the Civil Aspects of International Child Abduction Bill, 2007, to secure the prompt return of wrongly removed or returned children, lapsed before reaching Parliament.
- Considers the removal to or the retention of a child in India to be wrongful if it is in breach of rights of custody attributed to a person, an institution, or any other body, either jointly or alone, at a place where the child was habitually resident immediately before the removal or retention.
- It further stipulates that the removal to or the retention in India of a child is to be considered wrongful where at the time of removal or retention those rights were actually exercised, either jointly or alone, by a person, an institution or any other body, or would have been so exercised, but for the removal or retention.
It is important in this context to look at the watershed verdict of the Supreme Court in Surya Vadanan v. State of Tamil Nadu (2015).
The court ruled that:
- one, the principle of Comity of Courts and nations must be respected and the best interest of the child should apply;
- two, the principle of “first strike”, namely, whichever court is seized of the matter first, ought to have prerogative of jurisdiction in adjudicating the welfare of the child;
- three, the rule of Comity of Courts should not be jettisoned except for compelling special reasons to be recorded in writing by a domestic court;
- four, interlocutory orders of foreign courts of competent jurisdiction regarding child custody must be respected by domestic courts;
- five, an elaborate or summary enquiry by local courts when there is a pre-existing order of a competent foreign court must be based on reasons and not ordered as routine when a local court is seized of a child custody litigation;
- six, the nature and effect of a foreign court order, reasons for repatriation, moral, physical, social, cultural or psychological harm to the child, harm to the parent in the foreign country, and alacrity in moving a concerned foreign court must be considered before ordering return of a child to a foreign court.
India’s accession to the Hague Convention would resolve the issue since it is based on the principle of reverting the situation to status quo ante .
Source: The Hindu
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