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)