India: a Non-signatory there to : How is it dealing with the ever rising cases of International Parental Child Abduction?”

What is this Convention all about?

This convention provides for the scenario when there is a child born of parents in a place, to whom neither of parents belongs originally and there is a strain in marital relationship, and one of the parents took the child to that parent’s nation of origin, without the consent or knowledge of the other parent. This convention is to tackle the situation when a child is born in a particular state and is growing up there and suddenly due to strenuous relationship between the parents, a tug of war starts and one of the parents deceitfully take away that child to his/her state of origin and the child suddenly finds him/herself in a strange place altogether. This situation will have detrimental impact on the welfare and well being of the child, being wrongfully removed from or retained outside his/her state of habitual residence.

Therefore, the focal point is the habitual residence of the child before child’s wrongful removal or retention. The child when takes birth and starts his/her journey of life from being a ‘just born’, to being an infant, from toddlerhood to childhood to adolescence, builds a societal equation around him/her in the form of social ties and to bring in a sudden change of place abruptly, results in serious consequences to the child. And this situation is on the constant rise in view of the ever increasing globalised world where boundaries are getting blurred by the day and there is constant movement of the people building societal ties and all this unfortunately is leading to a growth in number of international child abductions.

The convention tries to locate, recover and return those children, which could be complex and difficult; its aim is to protect children internationally from the harmful effects of their wrongful removal or retention by a providing a system of cooperation between parents and an effective procedure for the return of the child to their state of habitual residence.

This convention also provides for the protection of rights of access of the child. This convention defines child being person who has not attained the age of 16 years.

This convention declares that the interests of the children are of paramount importance in matters relating to their custody.

How is India dealing with it?

The Government of India is not yet ready to sign the treaty, though there has been immense pressure, esp. from the United States of America. The Indian state has the apprehension, considering the state of women in the country, esp. in the scenario of NRI taking advantage of womenfolk of the country by marrying them and leaving them in a foreign land; that signing the treaty could lead to harassment of women escaping marital discord or domestic violence.

India, taking cue for Japan, has been asserting that it will put safeguards before acceding to the Hague Treaty.

A Committee was constituted by the Central Government to examine the legal issues involved in international parental abduction, which had submitted its report in April 2021; in the report the said Committee had opposed a central provision of the Hague convention, with the opinion that criterion of habitual residence of the child, which is used to determine whether the child was wrongfully removed by a parent as well as to seek the return of the child to the country of habitual residence, was not in the best interest of the child. The Committee had also recommended setting up a Child Removal Disputes Resolution Authority to act as a nodal body to decide on the custody of the child as well as a model law to deal with such disputes.

However the Govt. of India on the other hand has been contemplating assigning the National Commission for Protection of Child Rights, the role of adjudication in such cases along with a judicial expert.

Therefore India has its own standing on the subject and is taking time to understand various nuances around the subject-issue; and could be expected that it will come out with a nuanced stance over the subject.

How are Indian Courts dealing with it?

In 2013, Delhi High Court[1], while dealing with the issue of international child abduction, had observed that in parental abduction cases, where a spouse is residing separately or otherwise from the opposite spouse, in a particular country, and flees from the said country to her original home country along with the minor child born to the parties, and the issue of custody arises in the Court within territorial jurisdiction whereof the spouse and the minor child ordinarily reside, post abduction, the legal principles to be kept in mind are that irrespective of whether the country of the Court concerned is or is not a signatory to the ‘Hague Convention’, principles embodied in the Convention must be kept in mind. This would mean that if there is an order of a Court of competent jurisdiction in the country wherein the abduction took place, the said order has to be respected. The disadvantage to the other spouse has also to be kept in view. One has to keep in mind the injury caused to the mind of the child who is uprooted all of a sudden from a familiar surrounding; the psychological damage caused to the child due to sudden removal from a familiar environment to an unfamiliar environment. Injustice caused to the opposite spouse. The welfare principle i.e. the risk of harm while returning the child to the foreign shores; the welfare and interest of the child.

Therefore, the High Court, in above noted matted, had applied the principles embodied in the Hague Convention, while deciding the issue, to which both the parents also had accorded their consent.

This case before High Court pertained to a matrimonial dispute, wherein the wife was of Indian origin and husband was non-Indian and there matrimonial home was at South Africa; husband’s was second marriage and first was, initially a live-in relationship, out of which one son was there aged 13 at that time i.e. 2004, when instant marriage took place and in 2006 a girl child was born with Indian wife. Relationship soured between the couple and they took recourse to legal help. Both moved an application for divorce by mutual consent to snap the matrimonial bond; requiring husband to pay monthly maintenance to wife. The couple agreed to the joint custody of the girl child as also how the girl child would share her invaluable time with the two separated parents. Divorce by mutual consent was granted in 2010 by the High Court of South Africa, inter-alia, binding the parties under terms of settlement arrived at between the parents; and both agreed to joint custody of the girl child and the school to which the girl child would be admitted and all other aspects connected with the education and other aspects of welfare and well being of the girl child. It was agreed between the couple that the girl child would not be removed by either parent from South Africa without the written consent of the other parent. One facilitator was also appointed in South Africa, in order to crease out any future occurring differences between the couple. Things did not go smooth and the couple finally took to warring paths. Disputes and differences started piling up. Ultimately, the wife deceitfully, took the girl child to India and started filing cases in Delhi, which finally reached the Delhi High Court.

The Delhi High Court, in the attending complicated facts and complex legal issues tried to pave the way towards adjudicating the issue and made following pertinent observations:

“The bond between a mother and her child has always been held, especially in India, standing on a higher pedestal vis-à-vis the bond between a father and his child. From times immemorial, the Indian ethos gives the highest place in the life of a child to the mother, followed by the teacher and at third place comes the father.” (Para 48)

“But, this is only a starting point of discussion, or to put inlegal language: Theonus cast is against the father.” (Para 49)

“But, there are no easy solutions for the reason an organizedcivil society and an orderly world order require : (i) It being the object of every law to deter either parent from taking law into in their own hands; and (ii) respecting the principle of comity of nations and Courts.” (Para 50)

“Children, especially of a tender age, and by that we mean children who have not entered their teens, do not always know what is best for them though they may have acute perception of what is going on around them. They may profess to have authentic views about the right and the proper way to resolve matters, but the same would be hazy.” (Para 56)

“When we speak about a child’s interest we understand the same to be comprising of two distinct parts. Part I : Maintaining family ties. Part II :Ensuring the child’s development within a sound environment and least not such as would harm the development of the child. It is the second which is inherent in the rule requiring a prompt return of the abducted child, unless there is a grave risk that the child’s return would expose the child to a physical or a psychological harm or otherwise place the child in an intolerable situation and its converse that if one year elapses from the date of the abduction when the aggrieved spouse moved for return of the child, the Courts should be reluctant to return the child. (Para 57)

The Court after laying Paragraphs 56 and 57 went on to decide the issue at hand on principles so quoted in said paragraphs. But the High Court beforehand launched a caveat in the subsequent paragraph i.e. para 58, which is a nuanced legal nicety adopted and followed to resolve the issue at hand; which is as follows:

“Having understood what would be the interest of the child to be kept in mind, we need to lodge a caveat. The law requires that ‘the best interest of the child shall be a primary consideration’. The law does not require that ‘the interest of the child shall be the primary consideration’. The law also does not require that ‘the best interest of the child shall be a paramount consideration’. Thus, the distinction between ‘a primary consideration’; ‘the primary consideration’; and ‘the paramount consideration’ has to be kept in mind. (Para 58)

The High Court clearly says that the law requires that ‘the best interest of the child shall be a primary consideration’. The subsequent lines concerns legal niceties to be appreciated by a lawyer or judge. It connotes that in a legal battle between spouses, while resolving the complex, intricate legal and factual issues, the best interest of the child shall be a primary consideration for the Court concerned; the Court, therefore, is bounden to take notice of perspectives of child as to his/her interest and welfare when both the parents are indulged in a bitter legal battle involving the harsh games of adults far away from the world of a child; but the Court is at the same time seized with the matrimonial dispute which needs to be decided on its own merit and, therefore, the caveat.

The High Court went on to observe that the system in place in the Republic of South Africa on future custody issues was far better than what we have in India, in the form of Court adjudications, indicating again the concern of the child.

Finally, the Delhi High Court had held against the wife and observed the following:

“In our opinion Dr. Neeta Misra, for the moment, has no evidence to prima-facie justify risk of grave danger which Hope (the girl child) would be facing on return to the Republic of South Africa. By her act of contrivance, Dr. Neeta Misra has prevented the three experts: ______to interact further with Hope (the girl child) and identify the truth. Having aborted the inquiry by the three, she cannot claim the benefit of any scattered evidence which she projects.” (Para 69)

Following para shows as to how the High Court weigh mutually conflicting interests and arrived at a decision in the complex issues before it by striking a judicious balance, which only and only the High Court could have done being within its jurisdiction as endowed upon it vide the Constitution of India. (The Writ Jurisdiction)

“We have kept in mind the entire family situation, the factual, emotional, psychological and other material placed before us. We have to strike a fair balance between the competing interests of Hope: to return her to her familiar surroundings in the Republic of South Africa as also the alleged grave risk which she may be exposed to if required to be returned. Finding evidence of the latter being scanty, further finding Dr. Neeta Misra to have prevented a fair inquiry by the three experts after having sittings with Hope, noting further the walls created by Dr. Neeta Misra which prevented Philip David Dexter to seek redressal within one year of Hope?s parental abduction, respecting the comity of Courts, we find case made out in favour of Philip David Dexter in WP(Crl.) No. 1562/2012.” (Para 73)

Conclusion

Though India is not a signatory to the Hague Convention, but the Courts in India, esp. the Higher Courts i.e. the Supreme Court and the High Courts, are not hesitant to adopt, follow principles contained therein and on the basis of Principle of Comity of Nations & Courts

Parminder Singh, Advocate

[Tis Hazari Courts, Delhi]