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 and lodged them in separate foster homes. It charged the mother Sagarika with “negligence and unable to bring up” the children.
A Norwegian court 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 for an hour once a year.
Shockingly, the court adds that only if the couple separated, could the custody of the children be given to the natural father, who has been employed as a geoscientist in Norway. 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. Now 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 on December 28, 2011, and January 5, 2012, did not elicit any response. With the visas of Bhattacharyas expiring in March, they dread leaving the country without their loved ones. The happening, sorrowfully true, is appalling.
Amid a false sense of euphoria as Norway has agreed to hand over the children to their uncle subject to a Norwegian district court accepting the arrangement, larger issues remain, 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. In 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 the personal family laws of Indian communities is overriding.
Norway, Denmark, Sweden and Finland have stringent state welfare policies for their nationals which empower them to place children in foster homes to live with strangers. The Norwegian Child Protection Services, however, ought not to have exercised such rights over Indian children whose religious, ethnic, cultural and linguistic milieu was different and distinct.
In respect of Hindus, i.e. any person who is a Hindu, Buddhist, Jain or Sikh by religion, the Hindu Minority and Guardianship Act (HMGA), 1956, has extra territorial application. It also applies to Hindus domiciled in territories outside India. Thus, the 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 five shall ordinarily be with the mother.
The process of appointment of guardians for minor children in India is governed by the Guardians and Wards Act (GWA), 1890. Surprisingly, since HMGA does not have any independent statutory provision for the appointment of guardians for minors, all parties, whether Hindus or non-Hindus, have to invoke the provisions of the GWA for appointment of a guardian for 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 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, in the circumstances, better for the welfare and in the best interests of the minor.
Applying European yardsticks of culture, habits and social mores to the Bhattacharyas who profess Hindu religion and cultural practices is not the correct application of the best interests principle for determining the welfare of the children. An overzealous Norwegian social set-up cannot change the personal law of the parties or usurp the interpretation of the principles of upbringing of Indian children and thrust in on foreign citizens domiciled temporarily in its territory. Furthermore, the yardstick 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 until their children attain the age of majority.
The U.N. Convention of the Rights of the Child has been brutally offended in the children being confiscated and put in foster care. The Right to Family Life guaranteed by the European Convention of Human Rights too has been violated. The dilemma is international and the 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 are not in the best interest or welfare of the child. It would be best if Norway left the Indian children alone.
(The author, an alumnus of SOAS, London, is an IAML Fellow. He practises in the Punjab and Haryana High Court and has co-authored Indians, NRIs & the Law, India, NRIs & the Law, and Acting For Non Resident Indian Clients. He can be reached at anilmalhotra1960 @gmail. com)
Keywords: Anurup, Sagarika Bhattacharya, Indian children issue, NRI parents, Norwegian Childcare Services, emotional disconnect, child rights laws, Abhigyan, Aishwarya, parental negligence
The couple should have respected the laws of Norway when they were
living in Norway. I believe the Norwegian authorities would have
behaved in the same way if any Norwegian couple treated their kid
like these Indian couple. All this fuss about Indian culture is crap
and a farce. Please grow up and learn to respect the law of the land
you live!
Dear Clara, isnt it strange that the the child mentioned in the case you have stated had an option to stay with his parent? Isnt a rule for one applicable to all? Is there some information missing here? Killings of this magnitude is always shocking and unpardonable. We need to look at parents/homes that cannot provide or care for mental illnesses and not read instability in cultural upbringing.
@Klara : Thanks for this update on the background of Anders Behring
Breivik, the killer of 77 people. But, for heavens sake don't compare
the parents of these Indian Kids to that of his parents. Don't compare
our style of upbringing children with that of your country's. By your
comparison all our Indian children would end up in any of
Barnevernets. You people may be comfortable putting your children in
Child Protection Homes and your parents in the Old Age homes. We don't
usually do that. It is unthinkable and unacceptable many of your
practices too for us. Many of us live together with our parents, grand
parents and with our children under a same roof even if we have to
share same rooms. Still, Indians are producing a number of best of the
talents and minds.
I would like readers of the Hindu to be aware of the fact that stealing children from their parents is a cruel practice which the Scandinavian nations have indulged in for the past 100 years. Not even the brutality and inhuman ideology of WWII made them change their eugenic policies, which they shamelessly continued with. Children of minorities - Sami, Tatar and others were routinely snatched away by the state in these so-called democracies. India should not put up with their absurd posturing on this matter. The children should be returned to their parents immediately, failing which India should recall its ambassador from Norway, expel the Norwegian diplomatic mission from India, and seize Norwegian assets in India. That should give these so-called democracies a dose of their own medicine.
@Kannan Veeraiah: The bomb and the killing of 77 people, mostly teen-agers, has left Norway in shock and sorrow. We are still strugling with the effects of this horrible events. The killer, Anders Behring Breivik was under Barnevernet at the age of four, and a psychologist recomended that he was moved from his home and placed in fostercare, as he saw that the conditions for the childs emotional and psychological development was not good enough. The psychologist's recomendations were not followed, and he stayed with his mother.
I will also say that I agree that barnevernet in Norway should do what they can to give the children access to their language, their culture and their family.
This is in response to the response of 'Norwegian' posted in response to the article. Dear Norwegian, it is intolerant of you to have said "If you resist this you stay in India where nobody would interfere with any child maltreatment at all, and where you would see the permanent damage done to the child as fate and inevitable". Indians are there in Norway to provide the services that your country needs. They are selling their brain but don't expect them to sell their hearts and give up the rights to their children. I would like to remind you that whole world knows how one Norwegian recklessly killed more than 80 people at an island retreat in July 2011. Hope he too was the one brought up perfectly as any other Norwegian would have been brought up. So, don't generalize. I am sure the parents - Anurup and Sagarika- know the value of their kids and they know how best to take care of their kids. Probably, as a nation you don't have the cross cultural understanding & appreciation
These are good thoughts on the applicability of Personal Laws of individuals of foreign nationals on matters that are personal. It is by natural law, a child has an absolute right for parental care and love. It is by natural law the parents have a duty over her babies for their care and protection and so it is their natural right to perform their duty towards their babies. The way the children are taken care of and brought up is conditioned by the culture, customs, geographical needs of the region to which the parents and children belong. The Norwegians have not probably applied their mind with this common sense while enacting and or applying their laws to their repatriates. So,it is unfortunate this family ended up facing the Norwegian atrocity in the name of the laws of Norway. Now, how to save them from this situation? Further delay will definitely disable the kids' emotional re-connect with their biological parents? LET'S MARCH TO EMBASSIES OF NORWAY ACROSS THE GLOBE TO PROTEST!
I thank 'THE HINDU' for continuously exposing the notorious Norway and its 'Child Protection Services'. We were not aware of this type of notorious rules behind the Democratic system of Scandinavian countries! One good thing with this episode, Awareness about these countries became clear because of media initiative and opened the eyes of people arguing for Norway and it's CPS. My advice to Indians is, think before hopping into these countries for little extra money! Mothers lap and Mother land is the best place and she never refuse.
If you live in Norway you have the right to school, supported kindergarten, health service and social security. If your way of treating the children is harming them because of alcoholism or psychiatric disorder or other reasons, your children are put in foster care by the court. 5% of the population in Norway, and 30 % of the children in Oslo, are from Asia or Africa where you eat with your hands and sleep with your children. Of course these children live with their parents. But if you don't respond to your infant, which means the child gets extremely frightened, which can cause permanent brain damage, it is taken away. If you resist this you stay in India where nobody would interfere with any child maltreatment at all, and where you would see the permanent damage done to the child as fate and inevitable. Two systems. But if you want the state to pay for your school and your health, you must take care of your children in a way that doesn't harm them.
The Norway goverment should take immediate steps and hand over the child to the parents else even the child will not be aware who is its Father/Mother!
Even though I agree with the author mostly and think that the action taken by the Norwegian authorities was extremely cruel, outrageous and insensitive of cultural lifestyle of the Indian couple, one point I fail to understand is why will Norway care about HMGA, 1956. Or, GWA, 1890 ? Aren't these Indian laws only ? Why will HMGA have extra-territorial application ? It would have been better if the author had shed some more light on this. Otherwise, I am a bit confused about the applicability of these laws.
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