When children are abducted by their own parents to a foreign country even as their custody battle is pending before an Indian court, there is little that law enforcement agencies or even courts can do to trace the child or worse, pass orders to recover them.
Faced with this situation, the law Commission has decided to initiate a study as to whether it is high time that India needs a law to recognise such acts as an offence. Globally, this phenomenon exists and is termed inter-country child abduction. There is an international Convention called the Hague Convention on the Civil Aspects of International Child Abduction 1980 to which India is not a signatory.
The Commission, which received a reference to probe deeper into this issue from the Punjab and Haryana High Court, has been asked to examine whether India should sign the Convention, adopted by 93 countries till date.
The reference came in the backdrop of a judgment passed by the Punjab & Haryana High Court in a case where a girl was taken to london by her mother and uncle in 2007 and remained untraced till date. Incidentally, the girl’s parents were locked in a bitter custody battle that led the High Court to allow at one stage the mother to enjoy custody of the daughter for few days. When the time came to return the child, the child’s father discovered she was taken away to london on a fake passport. The Central Bureau of Investigation (CBI) was asked to probe the case as the child was situated in a foreign jurisdiction.
The court appointed advocate Anil Malhotra as amicus curiae who brought his vast experience in dealing with such cases to the fore and explained to the court that the issue central to the controversy was the absence of any legal regime to return the child to India. With India reluctant to sign the 1980 Convention, no foreign judge will allow the abducted child to return to India as only with the Convention are the interests of the child secured, Malhotra told the High Court. Even the CBI confirmed to the court that all its efforts to retrieve the child had hit a standstill on account of there being no legal regime to deal with inter-country child abduction.
Finding merit in the suggestions of CBI and Malhotra, Justice Rajive Bhalla hearing the case decided to refer the matter to the law Commission. The judge said, “The removal or retention of a child in breach of custody rights is a wrong under the Hague Convention but for want of the Union of India acceding to the Hague Convention and or enacting a domestic law, children will continue to be spirited away from and to India, with courts and authorities standing byin despair.”