Vulnerability of children is concomitant to their ‘tender age’,
this necessitates utmost care and protection. The
mental and physical immaturity makes children
most vulnerable to mistreatment, exploitation,
discrimination and other forms of violence. Parents and the community
in general play a pivotal role in the
overall protection of children. There is common
consensus on the fact that the State should
pro-actively safeguard the interests of the minors and ensure the child’s
well-being. In addition to several
international treaties, there exist various
legislations in India which provides for child rights, their protection and
penalties in case of violation.
Abduction is a serious threat which is
detrimental to the well-being of children. Child abduction is basically an
unauthorised removal of a minor from the custody of the his/her parents or
legally appointed guardian. The threat could be posed by a stranger, family
relative or either of the parents or both. This article attempts to cover the
legal aspects relating to parental child abduction under two heads i.e.
Intra-country parental child abduction and Inter-country parental child
abduction.
Intra- Country Parental Child Abduction
Kidnapping and Abduction
Section 362 of Indian Penal Code, 1860[1]
defines ‘Abduction’ as an
act compelling/taking away a person by deceitful means inducing him to go from
any place. Kidnapping can be classified into ‘kidnapping from India’ wherein a person is conveyed
beyond the limits of India without that person’s consent and ‘kidnapping from lawful guardianship’
wherein a person entices a minor/a person of unsound mind from lawful
guardianship. In case of Abduction, the person committing the culpable act
could also be a lawful guardian.
What
constitutes Parental Abduction?
In common parlance, parental abduction can be said to occur when a
parent takes a child without the other parent’s permission, generally in
violation of a custody order. It is common in cases where the child’s parents
are litigating a divorce or any other matrimonial dispute. Neither IPC nor any special
legislation provide for parental abduction. India does not recognise
parental child abduction as an offence (unless accompanied by an intention to
commit another offence); it is treated like a custody battle i.e. a civil suit
can be instituted. The laws governing child custody in India are the Guardians
and Wards Act, 1890[2]
and Hindu Minority and Guardianship Act, 1956[3] (applicable on the basis of
religion of parties).
As both the parents are natural guardians of the
child, abduction by parents brings in a peculiar position of conundrum. The
parental abduction cases take into account the following factors:
- Legal standing of the culpable
parent including any court order with respect to care towards the child: In case the parents are not divorced and one parent takes the
child away from the other parent, it is not per se culpable
but being unresponsive or keeping the child in an inaccessible position
from the other parent with an intention to restrict the other could
constitute an offence. When a parent has sole physical custody of the
child and the other takes the child away from such lawful custody without
authorization of the custody-holder, it would amount to parental
abduction. Further, any existing orders passed by the courts are binding
and have to be complied with by the parties. For example, a parent having
only visitation right cannot take absolute custody of the child. Further,
non-compliance of any court order is considered as the contempt of court.
- Intention of the parent: Intention to cause any harm to the child or to cause custodial
interference will be taken into consideration.
Legal
Remedies:
▪
Habeas Corpus Petition:
In the case of Rajesh K Gupta v.
Ram Gopal Agarwala and Ors[4] it
was[1] [62] held that a Habeas Corpus petition
can be filed even by a person who is not a citizen of
India or where the child has been taken from India (habitual residence) to
another country
▪
Initiate
Guardianship procedures under Guardian
and Wards Act, 1890
Defences:
▪
Holder of
lawful custody
▪
Escaping
domestic violence and also protect the child from the same
▪
Already had
custody before the announcement of custody and visitation by the court
Even if there exists only a suspicion that the
other parent might abduct the child, the custody-holding parent has an option
to obtain an interim order from the court restricting the other parent. Courts consider the totality of
circumstances and always want to do what is in the ‘best interest’ for the
child.
The United Nations Convention on Child Rights,
1989 deals with child-specific needs and their rights specific needs and their
rights. India has also ratified this convention with certain reservations
regarding child labour.
These rights include the right to:
a)
Life,
survival and development
b)
Protection
from violence, abuse or neglect
c)
An
education that enables children to fulfil their potential
d)
Be raised
by, or have a relationship with, their parents
e)
Express
their opinions and be listened to.
India has also ratified this convention with
certain reservations regarding child labour.
The Hague Convention on Civil Aspects of
International Child Abduction, 1980 [hereinafter “Convention”] was adopted with
a view to accord cross-border/ extra-territorial protection to children from the harmful effects of their
wrongful removal or retention and to establish procedures to ensure their
prompt return to the State of their habitual residence, as well as to secure
protection for rights of access.[5]
Key features of the
Convention
▪
It applies
to cases where the country of habitual residence of child and the country to
which the child (less than 16 years of age) has been taken have acceded to the
convention and the child has been ‘wrongfully removed or retained’[6]
in breach of custodial rights under the laws of the habitual residence of the
child.
▪
Objective
is to return the child back to country of habitual residence and not decide
child access/custodial questions.
▪
It provides
an administrative and a judicial remedy for parties seeking relief by making an
application to the designated Central Authority in the nation where the child
habitually resides, or in any other nation that is a party to the Convention to
return the child and also the party may initiate judicial proceedings (to
return the child/secure rights of access) in the nation where the child is
located.
▪
Possible
defences to deny return- Grave risk of harm, human rights issue, child settled
in new environment due to time lapse of more than a year, petitioner was not
exercising custody rights at time of removal or retention, consent of petitioner
and child’s objection. The burden of proof rests upon the denying parent.
Position in India: As
Non-Signatory to the Convention
The Apex court has in a catena of cases[7]
(Habeas Corpus petitions) relating to
Inter-country abduction into India, has affirmed that custody order passed by a foreign
court shall only be one of the factors taken into consideration by the courts
in India while deciding the custody and parental abduction matters. The court
will draw up an independent judgment on the merits of the case taking into
account the paramount interest and of the child. It may uphold the order of a
foreign court or pass an order contrary to the order of the foreign court.
The Hon'ble Supreme Court in Dr. V
Ravi Chandran v. Union of India[8], directed return of
the concerned children to the
country of their ‘habitual residence’, relying on
the principle of ‘comity of courts’ for
the determination of their best interests and welfare which is the prime
consideration.
Recently, the Apex Court has in Surya
Vadanan v. State of Tamil Nadu[9] reiterated that: Principle of ‘comity of courts and nations’ must
be respected and the principle of ‘best interest of child’ should apply; rule
of ‘comity of courts’ should not be jettisoned except for compelling special
reasons to be recorded in writing by a domestic court; interlocutory orders of
foreign courts of competent jurisdiction regarding child custody must be
respected by domestic courts; and 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 should not be ordered as routine when a local court is
seized of a child custody litigation. In some countries, inter-parental child
abduction per se is a criminal offence. In U.S, it is punishable under International Parental Kidnapping
Law even though there has been an inter country abduction into India; the
criminal proceedings can be instituted in U.S.[10]
In cases
where a child is abducted from India
to any other country, Section 4 of IPC and Section 188 of CrPC. come into play. Section 4 of
IPC mandates that the provisions of the IPC shall apply to offences committed
by Indians abroad. Abduction being a continuing offence, a complaint for an
offence committed abroad can be made at any court in India.
The
Protection of Children (Inter-country Removal and Retention) Bill, 2016
Law Commission of India (LCI) Report No. 218 insisted on the need to
accede to the Convention. On the basis of suggestions made by the Commission, the
Protection of Children (Inter-country Removal and
Retention) Bill, 2016, 2016 was drafted.
It provides for the following:
● Constitution of a Central Authority and
outlines the role with regard to the child who is removed to or from India to
another Contracting State
▪
It lays down procedure for securing the return of
a child and provides for the Central Authority to apply to the High Court for
restoring custody of the child
▪
A decision
to return the child is not the final determination on the merits of the issue
of custody
▪
Court could
deny custody on certain grounds. It allows the Courts in India to recognise
decisions of State of the ‘habitual residence’ of the child. It also states
that the Indian Court that wants to disregard the interim/final order of the
foreign court must record reasons for the same
▪
Indian
Courts could seek decision from Central authorities of the Contracting State
from which the child was removed.
Why should India accede to
the Hague Convention on Civil Aspects of
International Child Abduction, 1980?
▪
Indian
Courts treat child removal
disputes as custody disputes. Clash of
parental interests and rights of spouses are considered in determining the question of custody. By contrast,
Convention approach transfers the child to status quo ante before the wrongful
removal/retention and supports the proper role played by the Court of child’s
habitual residence.
▪
Possibility of negative influence on a foreign judge who shall decide
on the application to travel and stay in India for a child staying within the
local limits of the jurisdiction of his Court.
▪
It avoids
the problems that may arise in Courts of different countries who are equally
competent to decide such issues. The recognition and enforcement provisions of
the Convention avoid the need for re-litigating custody and contact issues and
ensure that decisions are taken by the authorities of country of child’s habitual
residence.
Why has India not signed/refused to accede to the Hague Convention?
The Convention does not recognize domestic violence. It has failed
to include the abandoned/abused spouse who flee to another country to with the
intention to protect themselves and the child from any such unlawful
removal/other harm.
Conclusion
Under the
legal regime in India, no statute provides for penalty for offences relating to
abduction of children from/into India. With the current rise in cases, parental
child abduction should per se be considered a criminal offence and an act of
child abuse and be subject to stringent penalty. There is also a need for
establishment of special courts as these cases require a speedy disposal.
Further, experts have also pressed for the need of proper machinery to deal
with inter-country parental child abduction. India lacks bilateral treaties
with other countries for extradition of absconding offenders. In this way parents
struck in such predicaments can be reassured about the remedies available for
safe and swift return of their children. The mechanism for parents to institute legal proceedings against the same can seek
legal assistance from the National Commission for Protection of Child Rights
and other non-governmental organisations working for the welfare of children.
[1]The Indian Penal Code, (Act No.
45 of 1860).
[2]The Guardians and Wards Act,
(Act No. 8 of 1890).
[3]The Hindu Minority and
Guardianship Act, (Act No. 32 of 1956).
[4]AIR 2005 SC 2426.
[5]Hague Convention on Civil
Aspects of International Child Abduction, 1980, preamble.
[6]Id.,
art.3.
[7]Dhanwanti Joshi v. Madhav Unde
1998 (1) SCC 112, Sarita Sharma v. Sushil Sharma 2000 (1) SCR 915.
[8](2010) 1 SCC 174.
[9]AIR 2015 SC 2243.
[10]United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40 (1st Cir. 2004).
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