Broken families await legal solution

Without the Hague Convention, NRI families faced with parental abduction have no forum to turn to

April 07, 2018 07:59 pm | Updated 09:53 pm IST

 When marriages with NRIs break down, most women relocate to India with the child, causing anguish to the child and the father. (Photo for representational purpose only).

When marriages with NRIs break down, most women relocate to India with the child, causing anguish to the child and the father. (Photo for representational purpose only).

Little Mohit (name changed), a Class III student of Chennai, gets emotionally swept over on seeing his friend being picked up by his father or getting gifts from his beloved grandma. He stays alone with his mother and hasn’t seen his father or grandparents for years.

Kiran, an engineer from Karnataka living in California for 18 years, nurses the frustration of being denied an opportunity to see his son living in India for the last three years. His estranged wife took their son to India in 2014, never to return.

Subrahmanyam, a retired bank official of Hyderabad, has not seen his grandson for over a year despite living in the same city. With five long years having passed since he last met his grandson, retired farm scientist Srinivasa Reddy of Tirupati is determined to pursue a legal battle against the system that has created a rift in hundreds of families.

The common thread in all these cases is the inaccessibility caused by a rigid legal system that is insensitive to emotions. There is also the problem of not having access to the Hague Convention.

What’s the Hague Convention? The covenant, which came into force in 1983, protects children from unilateral removal by a parent and is meant to establish procedures to ensure their prompt return to their state of habitual residence, besides securing protection for right of access. India is not a signatory to the Convention, although 98 countries, including Pakistan and Sri Lanka are. In the absence of a law on the issue, many NRI parents — mostly mothers — unilaterally relocate to India with the child, causing mental agony to both the child and the left-behind parent. Such an act is simply known as ‘parental abduction’.

Migration & matrimony

Andhra Pradesh, Maharashtra, Delhi, Kerala, Tamil Nadu, Punjab and Haryana account for a larger share of such cases. “Since migration to foreign countries is high from here, the likelihood of marital failure is a stimulus for the huge number of cross-border, inter-parental child removal cases. Once concentrated in north India, such disputes of late have started occurring in southern States,” observes Anil Malhotra, a Chandigarh-based lawyer and author, who studies legal issues around child abduction, custody, maintenance and adoption. The issue is rampant in High Income Group (HIG) families, where the tendency to remove a child on marital breakdown is strong. “On relocating, the parent invokes judicial remedies to secure the custody of the child whereupon the left-behind parent in the foreign jurisdiction is constrained to seek a parallel order in the country of matrimonial home”, Mr. Malhotra says.

If India considers signing The Hague Convention, retaining domestic violence as a ground for refusal to return, a system will be in place to define the scope of law, a central authority formed will take such matters to the High Court and parental child removal will be identified as an offence for remedies and resolution under Indian law.

“In its absence, the judicial precedent set by the Supreme Court guides domestic courts to take varying, independent decisions,” Mr. Malhotra says.

A non-compliant India

Statistics on cases of parental abduction are sketchy. However, the U.S. has termed India as a ‘non-compliant country which does not adhere to any protocols’. In its annual report on ‘International Child Abduction 2017’, the US State Department says 66% of requests made in 2016 for the return of abducted children have remained unresolved for over a year. India has been accused as being ‘non-compliant’ since 2014. From 74 cases at the start of 2015, it rose to 101 at the end of 2016. While terming the judicial action in custody cases as ‘slow’ in India, the report mentions Indian courts as tending to default to granting custody to the taking parent. In the absence of clear legal procedures on abduction cases under Indian law, the parents’ efforts to resolve custody disputes in local courts were often ‘unsuccessful’, the report added.

With more and more transnational marriages, the issue assumes significance as the child’s future hangs in the balance. Though the ball was first set rolling in 2009 and stonewalled several times, the Centre is reviewing the issue now. The Ministry of Women and Child Development constituted a committee, which held meetings at New Delhi and Bengaluru soliciting public opinion. As aggrieved grandfathers, both Dr. Reddy and Mr. Subrahmanyam gave their opinion favouring India’s accession to The Hague Convention.

‘Child knows best’

India continues to look at the issue through a women-centric prism, but does not recognise it as violation of a child’s right.

“Instead of leaving it entirely to the court/parents, the child should also have a say in deciding the parent to stay with. The child knows which parent spends quality time with him/her,” argues R. Meera, Secretary, Women’s Initiatives (WINS), an NGO. The child loves both parents, but with a disturbed childhood, he/she gets estranged from and finally hates the left behind parent.

“The child is traumatised on denial of the second parent’s love, which leads to risky health behaviour in the teen years, troubled relationships in adulthood and suffers from chronic health conditions,” says Jasleen Goel, a paediatrician in Ohio, USA. Nannapaneni Rajakumari, Chairperson, Andhra Pradesh Women’s Commission felt that protection of the rights of such children should get priority.

Through Article 19, the UN Convention on the Rights of a Child (UNCRC) clearly mentions a child’s right to be protected from abuse. “Like parental alienation, abduction is also a crime,” reasons Dr. Rakesh Kapur, who runs ‘Parvarish’, a New Delhi-based NGO dealing with child rights and alienation-related cases.

The Centre, on its part, came up with the draft Protection of Children (Inter-Country Removal and Retention) Bill, 2016 seeking to address the issue, and the Law Commission reviewed it.

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