“Leave your pride, ego, and narcissism somewhere else. Reactions from those parts of you will reinforce your children’s most primitive fears [i]”
Throughout the world, yearning for companionship, affection, and an innate desire to pass-on one’s gene, often form the driving forces behind nuptials. It has been recognized[ii] that the “basic unit of society is the family and that marriage creates the most important relation in life, which influences morality and civilization of people, than any other institution.” The relationship emanating from marriage, though, often premised on a promise of union for a lifetime, however, in certain cases prove incapable of withstanding the hardships of life. Unfortunately, several such instances of break-down of matrimonial alliances result due to incidences of cruelty, infidelity, ego-tussles, lack of intimacy, etc.
With a change of societal attitude and improved education; divorce is no longer considered taboo. Despite the same, in majority cases of marital discord and incompatibility, it has been vehemently professed that dissolution of marriages must be adopted by spouses as a last resort and that every endeavour must be made for reconciliation of the differences which may arise between them. This becomes even more imperative when the consequences of the prospective dissolution of marriage tend to affect not only the active participants of such ‘ego-clashes’, rather, the innocent minds of children in such broken homes. It is, therefore, quite understandable that the Hon’ble Apex Court[iii] of our country has counselled spouses to make an endeavour to bear with the ordinary wear and tear of married life, for the larger interest, health, normal growth and development of their offspring(s).
The Hon’ble Court has further lamented, observing that in the cases of divorce/ separation, “the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents.” In fact, the Hon’ble Supreme Court, in Soumitra Kumar Nahar v. Parul Nahar[iv], has specifically remarked, “[i]n a custody battle, no matter which parent wins but the child is always the loser and it is the children who pay the heaviest price”.
The consequences of shattered homes become grave when in an enduring marital discord, children are treated as chattels and dislodged from their places of birth, residence, and liking and ultimately deprived of the love and affection of one or both the parents in the process. It is not quite uncommon that in such events of a tussle between spouses based in India, one of the parents may withdraw from the family and abandon the country, accompanied by child/ children. In contrast, there may be instances where one of the parents in a family, settled abroad, may choose to return to India along with the child/ children, during the process of separation, and often in violation of an order(s) of custody/ interim-custody or injunction against such removal, etc., which may be passed against such individual by a foreign Court. In the countries recognizing and providing for prosecution for such an act as an offence, the term assigned thereto is; International Parental Child Abduction/ Parental Child Abduction/ Inter-Country Parental Child removal and retention.
Internationally, the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), inter alia, aims to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence”. As per Article 3 of the said Convention, removal or the retention of a child/ children is considered wrongful, where the same is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident, immediately before the removal or retention.
Simultaneously, it is imperative that at the time of removal or retention those rights were “actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention”. The applicability[v] of the Hague Convention depends on the age and the place of habitual residence of the child, being a Contracting State, immediately before any breach of custody or access rights. The terms, ‘right of custody[vi]’ and ‘right of access[vii]’ are defined under Article 5 of the Hauge Convention. The said Convention, further, provides for the establishment/ designation of a Central Authority (Chapter II, Articles 6 and 7) by the Contracting States to discharge functions related, inter alia, to the discovery of the whereabouts of a child who has been wrongfully removed or retained; prevention of further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; securing the voluntary return of the child or to bring about an amicable resolution of the issues; etc.
The procedure and mechanism which may be adopted for the return of the child/ children from the Contracting State to which the child/ children may be ultimately removed and retained (“Requested State”), to the Contracting State of habitual residence of such child/ children (“Requesting State”), are provided under Chapter-III (Articles 8 till 20) of the Hague Convention. Pertinently, as per Article 13 of the said Convention, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that the person, institution or other body having the care of the person of the child (hitherto) was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention. Such request for return of a child may be further rejected in case, “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.
Pertinently, to date, one hundred and one counties[viii] across the world have accorded their assent to the Hague Convention. However, India has not yet assented to and/ or ratified the provisions of the Hague Convention. The same is despite the fact that the incidents of International parental child abduction are a common occurrence and ever-rising, with an increase in global employment opportunities, migration of spouses outside India, etc. The Law Commission of India (“Law Commission”), in the year 2009, carried out a review on the laws on International Parental Abduction across the globe consequent to the Hague Convention and the need for such Laws in India. Based on the studies carried out, the Law Commission submitted its Report[ix] prima facie noting that in the absence of India being a signatory to the Hague Convention, there may be a prejudice in the mind of a foreign Judge, deciding on the custody of a child.
As per the Law Commission, “[w]ithout the guarantee afforded by the Hague Convention to the effect that the child will be swiftly returned to the country of origin, the foreign judge may be reluctant to give permission for the child to travel to India.” As per the Law Commission, the absence of Law governing the aspects of International parental child abduction would have a serious impact on the physical and emotional well-being of the child. Accordingly, it was recommended that the government, “may consider that India should become a signatory to the Hague Convention which will, in turn, bring the prospects of achieving the return to India of children who have their homes in India.”
Subsequently, the Ministry of Women and Child Development, Government of India, drafted a Bill on the Civil Aspects of International Child Abduction, 2016 (“2016 Bill”) in tune/ sync with the provisions of the Hague Convention. The said Bill comprised of thirty-five Section providing, inter alia, for the constitution, powers, and functions of the Central Authority (Sections 4-6); procedure for applications to the Central Authority (Sections 7-9); refusal by Central Authority to accept application and remedies against such refusal (Sections 10-12); etc. However, despite Law Commission’s recommendations neither the Hague Convention ratified/ signed by India nor the 2016 Bill, adopted as a statute.
Subsequently, the Law Commission was tasked with responsibility by the Hon’ble High Court of Punjab and Haryana[x] to examine, inter alia, issues involved in inter-country, inter-parental child removal, and submit its report thereon. Pursuant thereto, the Law Commission submitted its 263rd Report and a draft Bill[xi] in October 2016. The Law Commission, based on the analysis of several judicial precedents[xii] observed that the principles consistently followed by Indian Courts while deciding custody in cases of international child abduction/ removal are; the welfare of child and comity of courts/ self–restraint. Further, the Law Commission, while appreciating the distinction between the terms “child abduction” and “child removal” opined that the word abduction be removed from the existing Bill/ 2016 Bill. As per the Law Commission, “[i]n the case of ‘parental abduction’, these so-called ‘abductors’, are most of the times, loving parents. The child is taken away by a parent to any other place because of the fear of losing his/ her custody i.e. such an abduction, as stated earlier, is out of overwhelming love and affection and not to harm the child or achieve any other ulterior purpose.”
Nevertheless, it was duly acknowledged by the Law Commission that the incidents of wrongful removal and retention of a child seriously prejudice the right of one of the parents and the overall development of the child. Accordingly, the Law Commission, though, refrained from submitting an elaborate report, in light of its previous report in the year 2009, however, suggested a revised draft Bill in the form of, ‘The Protection of Children (Inter-Country Removal and Retention) Bill, 2016’ (“2016 Revised Bill”).
The 2016 Revised Bill specifically clarifies its applicability[xiii], inter alia, to every child who has not completed sixteen years of age and has been either wrongfully removed to, or retained in India, irrespective of his or her nationality, religion, or status in India. Under the said Bill, wrongful removal or retention is defined under Section 3, constitution, powers and functions of the Central Authority are provided under Chapter II (Section 4 till 7) and procedure for making an application to the said Authority under Chapter III (Section 8 till 10). Under the 2016 Revised Bill, provisions dealing with the power of the High Court to pass interim orders and to refuse an order of return of child are provided under Sections 15 and 17, respectively, thereof.
Significantly, the said Bill specifically provides for punishment for wrongful removal or retention (under Section 28) and punishment for willful misrepresentation or concealment of fact (under Section 29) with imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees or with both and imprisonment for a term which may extend to three months or with fine which may extend to five thousand rupees or with both, respectively. Pertinently, though, an improvement over the 2016 Bill, the 2016 Revised Bill, as before, failed to transform into binding law.
Thereafter, on 18.05.2017, High-Level Committee[xiv] (“Justice Bindal Committee”) was constituted to examine the issues relating to inter-country parental child removal and to suggest model legislation to safeguard the interest of the parents and children. The Committee, while, thoroughly reviewing the existing legal framework and the previous Reports of the Law Commission, submitted its recommendations, in form of a Report, to the Ministry of Women and Child Development on 21.04.2018. While making its recommendations, Justice Bindal Committee was cognizant of the fact that while dealing with the cases of international child removal/ retention, factors such as; marital discord and incidents of domestic violence cannot be ruled out. Accordingly, the Committee was of the opinion, “habitual residence as the sole criterion to determine the best interest of the child, does not seem just and fair.” It was specifically highlighted that certain mechanical provisions of the Hague Convention failed to take into consideration factors such as; lack of access to one of the parents, especially in the cases of a toddler; mental well-being of the child; visa, and permanent residence issues; etc.
Therefore, the Committee recommended for the establishment of an Inter-Country Parental Child Removal Disputes Resolution Authority to, inter alia, encourage mediation as a tool for resolution of dispute/ differences between the parents; ensure immediate access of the child to the left-out parent to mitigate negative impact, and allegation of tutoring of the child by the taking-parent; offer prompt legal aid to the parties; etc. At the same time, the Committee submitted a draft Bill in the form of “The Protection of Children (Inter-Country Removal and Retention) Bill, 2018” to deal with these issues. However, even the said bill has not been adopted as binding law.
Indian judiciary has consistently adopted an approach of parens patriae towards children caught in parents’ scuffle and custody-related disputes. Time and again, the Hon’ble Apex Court has professed that in custody related issues, the welfare of the child must be of paramount consideration. In Dhanwanti Joshi v. Madhav Unde[xv], the Hon’ble Supreme Court appreciated that in the instances which required for an elaborate inquiry on the issue of return of the child to a parent in a country outside India, “the court could go into the merits as to where the permanent welfare lay and ignore the order of the foreign court or treat the fact of removal of the child from another country as only one of the circumstances”.
The Hon’ble Apex Court in V. Ravi Chandran (Dr.) (2) v. Union of India[xvi] clarified that in the cases of inter-country parental child removal/ retention, the Court in the country to which the child has been removed must, first decide, whether to conduct a summary on an elaborate inquiry. As per the Hon’ble Court in the case where elaborate inquiry may be necessitated, welfare and happiness of the child should be treated as the paramount consideration and that the order of a foreign court, “as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case.” Nevertheless, the Hon’ble Court, in the instant case, order the return of the child to a foreign country on the basis of the principle of ‘comity of courts’. Subsequently, the Hon’ble Supreme Court[xvii] emphasized the consideration of principles such as; most intimate contact; the doctrine of closest concern; comity of Courts; etc., as few determining factors while passing an order of return of the child. In fact, as per the Hon’ble Court[xviii], “best interests and welfare of the child are of paramount importance. However, it should be clearly understood that this is the final goal or the final objective to be achieved—it is not the beginning of the exercise but the end.”
However, a three Judges Bench[xix] of the Hon’ble Supreme Court, appreciating that India is a non-Convention country, in Nithya Anand Raghavan v. State (NCT of Delhi)[xx], settled that the principle of comity of courts cannot be given primacy or more weightage in a non-Convention country for deciding the issues of custody and return of the child to the native state. In fact, the exposition of the law in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112 was declared to be a good law to the effect, “that so far as non-Convention countries are concerned, the law is that the court in the country to which the child is removed while considering the question must bear in mind the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration.” These principles were reiterated by the Hon’ble Supreme Court[xxi] in its subsequent judgments to the effect that the principles of comity of courts and doctrines of intimate contact and closest concerns must give way to the welfare of the child, which must be treated as a paramount consideration.
Understandably, the Hague Convention strives to uproot the widespread problem of International parental child abduction. Nevertheless, a mere process of adoption of the provisions thereof under the Indian domestic Laws may not provide a feasible solution to this daunting concern. The same is especially true when the Hon’ble Apex Court has clarified that subjugation and compliance to the order of custody and return of the child, on the principles of comity of Courts, intimate contact, etc., may not be advantageous, considering the best interest of the child. Under such circumstances, the reluctance of the Indian government to accord approval to the Hague Convention seems quite reasonable.
Such reluctance/ delay may be further justified in the light of the observation and lacunae pointed out by Justice Bindal Committee in its Report regarding, inter alia, non-consideration of factors of age, the possibility of domestic violence, migration issues, etc. under the said Convention. Therefore, the proposals of the said Committee and the draft Bill emphasizing on the mandatory requirement of mediation, prior to the passing of any order on the return of the child seem to be a practicable approach. Undoubtedly, though, the issue of International/ inter-country parental child abduction may seem to have a simplistic solution of return of the child to the place of his/ her habitual residence, however, considering the intricacies of matters involved, this subject is graver than what it seems at a first glance. Therefore, where the questions relate to the welfare and development of innocent minds of kids, though, this problem may be quite pressing, however, a cautious approach is not only necessary, rather, inevitable. As someone[xxii], once, rightly said, “Children ought not to be victims of the choices adults make for them.” The same holds true even in the instances where laws are adopted for the welfare of children.
References
[i] Dr Henry Cloud.
[ii] Sumedha Nagpal v. the State of Delhi, (2000) 9 SCC 745.
[iii] Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.
[iv] 2020 SCC OnLine SC 207.
[v] Article 4 of the Hague Convention- “The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years”.
[vi] Article 5(a) of the Hague Convention-“rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence”.
[vii] Article 5(b) of the Hague Convention, “rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”
[viii] Convention of 25 October 1980 on the Civil Aspects of International Child Abduction-https://www.hcch.net/en/instruments/conventions/status-table/?cid=24 (last accessed on 31.07.2020).
[ix] 218th Report of the Law Commission of India-Need to accede to the Hague Convention on the Civil Aspects of International Child Abduction (1980)- March 2009.
[x] Refer to Seema Kapoor v. Deepak Kapoor, 2016 SCC OnLine P&H 1225.
[xi] The Protection of Children (Inter-Country Removal and Retention) Bill, 2016.
[xii] Refer to Surya Vadanan v. State of Tamil Nadu, AIR 2015 SC 2243; Dr V. Ravi Chandran v. Union of India, (2010) 1 SCC 174; Arathi Bandi v. Bandi Jagadrakshaka Rao, AIR 2014 SC 918; Laxmi Kant Pandey v. Union of India, AIR 1984 SC 469; Gaurav Jain V. Union of India, AIR 1997 SC 2021; and NilRatan Kundu v. Abhijit Kundu, (2008) 9SCC 413.
[xiii] Section 1(3) of the Protection of Children (Inter-Country Removal and Retention) Bill, 2016.
[xiv] Justice Rajesh Bindal Committee under the Chairmanship of Hon’ble Mr Justice Rajesh Bindal, Hon’ble Judge, Punjab and Haryana High Court (then).
[xv] (1998) 1 SCC 112.
[xvi] (2010) 1 SCC 174
[xvii] Refer to Arathi Bandi v. Bandi Jagadrakshaka Rao, (2013) 15 SCC 790 and Surya Vadanan v. the State of T.N., (2015) 5 SCC 450.
[xviii] Surya Vadanan v. the State of T.N., (2015) 5 SCC 450.
[xix] HMJ Dipak Misra, HMJ A.M. Khanwilkar and HMJ Mohan M. Shantanagoudar.
[xx] (2017) 8 SCC 454.
[xxi] Refer to Prateek Gupta v. Shilpi Gupta, (2018) 2 SCC 309 and Kanika Goel v. State (NCT of Delhi), (2018) 9 SCC 578.
[xxii] Wade Horn (U.S. Assistant Secretary for Children and Families under President George W. Bush).
This Article is written by Mr. Sanjeev Kumar, Partner and Mr. Abhishek Goyal, Managing Associate at L&L Partners Law Offices. Mr. Sanjeev Kumar is a part of the litigation and dispute resolution team at the Firm and is primarily involved in corporate commercial matters before Courts, Arbitral Tribunals and Tribunals such as NCLT, NCLAT etc. Mr. Abhishek Goyal is an Advocate based in Delhi and presently is a part of the Disputes Resolution Team of L&L Partners Law Offices, Delhi, designated as a Managing Associate.
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