With the rise in the number of cases of divorce and judicial separation worldwide -the most affected are the children of the parties involved. In terms of custody, one parent receives the custodial rights whereas the other parent is devoid of such custodial rights as per the law of the country. Sometimes, the non-custodial parent chooses the path of abducting their own children from the custody of the other parent . In this process, it is not necessary that the non- custodial parent needs to be physically present to abduct the child, but he could be accompanied by the grandparents, acquaintance or any other family members to commit such an offence.
There are no stringent parental abduction laws in India .Before going into the nuances of parental abduction laws, it is essential to know what constitutes abduction in India.
Abduction is defined u /§362 of the Indian Penal Code 1860 which runs as follows: ‘Whoever by force compels, or by any deceitful means induce, any person to go from any place is said to abduct that person’ . Abduction per se is not culpable unless accompanied by motive to commit another offence. In the context of parental abductions, either of the parents, who are regarded as guardians of the children, are the supposed abductors . The child is taken away by either of the parent, especially the one who is non-custodial parent .
Essentials of a Parental Abduction in India
Parental Abduction comprises of certain essentials . Abduction is controlled by three primary variables they are ;
- The legitimate status of the culpable intent.
- The presence of any court orders with respect to care, and
- The motive of the culpable parent.
The Hague Convention 1980 seeks to achieve two objectives, namely – to protect a child from the harmful effect of such removal; and to secure prompt return and re-integration of the child in an environment of his or her ‘habitual residence and both these objectives correspond to the specific idea as to what constitutes the ‘best interest of the child’.
Salient features of the Hague Conventionon Civil Aspects of International Child Abduction 1980 are :
- It ensures rapid procedure for the return of the child wrongly removed to or retained in contracting party to its country of ‘habitual residence’;
- It ensures that rights of custody and of access under the law of one of the Contracting States are effectively respected in another Contracting State;
- It re-establishes status quo ante by returning the child to the country of ‘habitual residence’
- A return order is not a final determination of the issue of custody, rather, it provides for return of the child to the jurisdiction which is most appropriate to determine the issues of custody and access; and
- Each country that has signed the Convention must have established a Central Authority, which processes such applications. The Convention lays down certain roles and functions of the Central Authority. This Authority must, inter alia, help locate children; encourage amicable solutions and; help process requests for return of children.
The Hague Convention lays down that, when a court has jurisdiction over a child, the first question to determine is whether the Hague Convention applies to the case. Two conditions must be satisfied before the Convention applies : (a) the child must be under 16 years of age; and (b) the child must have been habitually resident in a Convention country immediately before any breach of custody or access rights. In Cooper and Casey, it was held that a child can have only one place of habitual residence which should be determined by focusing on the child’s past experience and not on its or its parents’ intentions.
There is no law against Parental Kidnapping or Parental Child Abduction in India. If one parent chooses to take away the child(ren) and restrict the other parent from meeting the child, there is no law against it.There is no option left to the other parent but to go through the tedious, lengthy court procedure. Meanwhile, there are parents who live in India (abducting parent) who decides to take the child(ren) from the custody of the parent who has the custodial rights to some other country. Though there is no such law where a legal action can be directly brought, but the custodial parent can approach the nearest court and obtain an interim custody with an apprehension and residence clause included . In the view of interim custody , there are different legislations governing child custody in India . India being a secular country nation practices different religions namely Hindu, Christian and Islam. Hence, every religion has a personal law set for child custody which determines the process through which parents can seek the custody of their child .
1. Custody under Hindu Law:
The laws associated under Hindu Law namely, Section 26 of Hindu Marriage Act 1955, Section 38 of Special Marriage Act 1954 and Hindu Minority and Guardianship Act 1956 describe about the reforms and regulations set for seeking child custody .
i. Section 26 of Hindu Marriage Act 1955
This act deals with the maintenance, education and caring of child and validates the child’s custody if and only if both the parents follow Hindu religion. Under this act, the court can any point of time pass interim orders, judgments, amendments, etc… with respect to the child’s maintenance and can dispose of the pending decree within 60 days from the date of service of notice.
ii. Section 38 of Special Marriage Act 1954
The act validates the child’s custody if both the parents belong to different religions or have undertaken a court marriage. Under this act, the court can any point of time pass interim orders, judgments, amendments, etc… with respect to the child’s maintenance and can dispose of the pending decree within 60 days from the date of service of notice.
iii. Hindu Minority and Guardianship Act 1956
Under this act, only biological parents and not step parents are given the right to seek the custody of their minor child only if he/she is a Hindu.
2. Custody under Muslim Law
As per the Muslim Law, only the mother holds the ultimate right to seek her child/children’s custody under the Right of Hizanat until she is not convicted or found guilty of any misconduct.
3. Custody under Christian Law
The child’s custody for parents belonging to Christian religion need to follow the reforms and laws set under Section 41 of the Divorce Act 1869. In addition to this, Section 42 and 43 of the same act hold the right to decide upon the child’s custody once the judgment with respect to separation or divorce has been passed.
Children being naïve and emotional, thus it is incumbent on the judiciary to safeguard their interest, without having to leave them emotionally scarred post the proceedings. Thus the main objective of the Courts, while deciding on custody issues which arise during divorce proceedings is to protect the best interest of the child.
.The court order shall state the following :
- The non-custodial parent may not travel abroad with the child(ren) outside of the province without first notifying you or the court in writing.
The non- custodial parent is to surrender passport, and the child’s if they possess it to his/her lawyer.
- Certify the custody order and keep it up to date. Keep a certified copy with you at all times.
- If the non-custodial parent is allowed visitation with your child(ren), there should be specific time frames.
- Any other as per circumstances of the case necessary to include.
VIOLATION OF CHILD CUSTODY ORDER:
As an aftermath of the divorce or judicial separation of the wedded couple, one parent possesses the custodial rights and the other is devoid of the same right depending on the circumstances and the interest of the child /children basing on the aforementioned criteria as the court decides.
Child custody primarily means when one parent possess care taking rights of the children. However, the non-custodial parent may still possess visitation rights as per the court orders.
Visitation rights are the rights given to a parent to allow him/her to visit a child, or to have the child stay with them for a short period of time. In most cases, this refers to the rights of the non-custodial parent. Since they don’t have custody of the child, most of the times, courts may grant them specific times that they can visit the child, such as on weekends or every other week.In the context of divorce or judicial separation, the court issues child custody orders and the parents are legally bound by the terms of the order. If it is found that either of the parent disobeys the court order, a judge can impose serious penalties, criminal charges, permanent loss of the custody of the child(ren) or the visitation rights. If both the parents are of the view of any alterations in the court order, they must approach the court for the same.
International child abduction has serious consequences for the various parties involved. It is an act of illegally taking or enticing a child from their home. Usually such kind of an act is done by one of the parent or by an acquaintance or any family member to some other country
International parental child abduction laws are different in different countries. India is not a signatory to Hague Convention, 1980 on the Civil Aspects of International Child Abduction.
Statistics show that the number of divorce cases and custody disputes has increased ever since the advent of globalization and technological development leading to a very busy life-style and work culture. The international parental child abduction/child removal finds its root here .
In Mahadevan v. Shankar, 2010 ONSC Carswell Ont 8537 – The Supreme Court in Ontario, Canada ruled that the father of a four-year-old child living in Ontario should not be permitted to take the child on a family visit to India .
InBalakrishna v. Murali, FA104042105, July 18, 2012, The Superior Court in New Haven, Connecticut ruled that the mother of a young child living in Connecticut should not be permitted to take the child on a family visit to India.
In Purushothaman v. Radhakrishnan, 2014 ONCJ 300; In the instant case, the court deals with the judge’s discretion to deny a parent to travel with his/her child(ren) to a non-Hague Convention Country where the other parent suspects an intent to escape Ontario’s jurisdiction over the child. While deciding the instant case, the court gave weightage to following factors:
- Young children are capable of absorbing new experiences and new ideas;
- There is no evidence the mother overstayed the first trip with the child to India and it remains undisputed that the mother went
- There was persuasive evidence a physically and emotional abusive relationship where the father was attempting to exert control over the mother’s life and behaviour;
- While there is evidence that the mother may have strong motivation to flee early on in the proceeding, she chose instead to remain resident in Canada and cooperate with Canadian legal system to work out issues with the father; and
- If the mother intended to abscond with the child, she would have done so years ago prior to being granted sole custody in 2012.
The Court concluded that there was no evidence of any motive for the mother to remove the child permanently from Canada. As such, it would be beneficial to allow the child on the trip as it was in his best interests. The mother was free to travel to India with the child for a set period of time. The Court further cautioned the father from making future objections against travel on similar grounds.
RELEVANT JUDICIAL PRONOUNCEMENTS
In Re: McGrath (Infants)  1 Ch 143 Lindley LJ said :
“The dominant matter for the consideration for the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded”
The aforementioned words have their values till date in various Indian judicial pronouncements. The Courts referred to the Convention on Rights of the Child , 1989 emphasized the various importance of the principle of best interest of the child(ren) in Laxmi Kant Pandey v. Union of India AIR 1984 SC 469 ; Gaurav Jain v. Union of India , AIR 1997 SC 2021 and Nil Ratan Kundu v. Abhijit Kundu , (2008) 9 SCC 413.
Hereinafter, the “best interests of the child(ren)” means the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development.
The Supreme Court in Dr.V.Ravi Chandran v. Union of India, (2010)1 SCC 174 and ArathiBandi v. BandiJagadrakshaka Rao, AIR 2014 SC 918 directed to return the respective children to the country of their ‘habitual residence’ on the principle of ‘ comity of courts’ principle for the determination of their best interests and welfare which is the prime consideration .
In Ruchi Majoo v. Sanjeev Majoo, AIR 2011 SC 1952, the Supreme Court emphasised that in case the child is not ‘ordinarily resident’ in the territorial limits of the Court, the Court must examine the matter independently. Recently, the Supreme Court succinctly reiterated all principles, the Courts have applied over the course of years to judge cases of international parental abduction, in the case of Surya Vadanan v. State of Tamil Nadu, AIR 2015 SC 2243. The Court stated that: principle of ‘comity of courts and nations’ must be respected and the principle of ‘best interest and welfare of the child’ should apply;
- rule of ‘comity of courts’ should not be jettisoned except for compelling special reasons to be recorded in writing by a domestic court;
- interlocutory orders of foreign courts of competent jurisdiction regarding child custody must be respected by domestic courts;
- and an elaborate or summary enquiry by local courts when there is a pre-existing order of a competent foreign court must be based on reasons and should not be ordered as routine when a local court is seized of a child custody litigation .
The Supreme Court has observed in the case of Sumedha Nagpal v. State of Delhias under: “No decision by any court can restore the broken home or give a child the care and protection of both dutiful parents. No court welcomes such problems or feels at ease in deciding them. But a decision there must be, and it cannot be one repugnant to normal concepts of family and marriage. 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. During infancy and impressionable age, the care and warmth of both the parents are required for the welfare of the child(ren).
The rise parental abductions across the world strongly impacts the interests of the children . Some suggestions can be incorporated in order to combat the cases of parental abduction :
The role of NGOs play a vital role in working for the welfare and the interests of the children’s rights . NGOs such as CRY has initiated , launched and organised campaigns to amplify the voices of the children and their rights .
“Bring Our Kids Home” is an association established by left behind guardians, whose kids have been abducted to India from the United States. They bring issues to light about International Parental Child Abduction (IPCA) inside the group and supporter for the provoke return of all stole American kids, casualties of this wrongdoing.
Through training, activism and support, they expect to change the way worldwide child abduction is seen and treated in the United States and India. Child abduction is child abuse and it is crime against kids and their deserted parent.They additionally try to have a wide coalition of help from Government, child’s rights group, legitimate community, media and in particular overall population.
The speedier cure is to record a Writ of Habeas Corpus in the High Court or the Supreme Court for the return of authority by a parent on the quality of a remote Court arrange or infringing upon parental rights. The elective cure is to start guardianship procedures under the Guardian and Wards Act, 1890 by driving proof and setting all apt material on the record under the watchful eye of a Guardian Judge .
It is highly recommended to frame a stringent legislation for the welfare of the children . In the present scenario , there is no law which would govern such a crime .
[i]Indian Pen. Code, No. 45 of 1860 , India Code§.362
[ii] Sushant Pandey , Parental child Abduction – Laws in India , ipleaders Intelligent Legal Solutions ( Dec. 29, 2017 ) .
[iii] supra at 1
[iv] Law Commission of India , Report No. 218 [ Need to accede to the Hague Convention on the Civil Aspects of International Child Abduction (1980) ].
[v] id at 3
[vi] Jose Rivera , Not Following or Disobeying Court Order on Child Custody or Violating Visitation Order, Legal Match’s Law Blog ( last modified Aug. 01 , 2019 at 1:43 pm ) .
[vii] Purushothaman v. Radhakrishnan, 2014 ONCJ 300 Ontario.
[viii] Re: McGrath (Infants)  1 Ch 143.
[x]Surya Vadanan v. State of Tamil Nadu, AIR 2015 SC 2243 (India). [xi] Helpline Law , Child custody laws in India, http://www.helplinelaw.com/family-law/CHILDCLI/child-custody-laws-in-india.html
The Guardianship and Wards Act , 1890 , India Code.
Surinder Kaur v. Harbax Singh Sandhu, 1984 AIR 1224 , India.
id at supra
Cooper and Casey  18 Fam LR 433
Law Commission of India , Report No. 263 [The Protection of Children (Inter-Country Removal and Retention) Bill, 2016 ]
Mahadevan v. Shankar, 2010 ONSC Carswell Ont 8537
Balakrishna v. Murali, FA104042105. July 18, 2012
Purushothaman v. Radhakrishnan, 2014 ONCJ 300
Re: McGrath (Infants)  1 Ch 143
Laxmi Kant Pandey v. Union of India AIR 1984 SC 469 (India).
Gaurav Jain v. Union of India , AIR 1997 SC 2021(India).
Nil Ratan Kundu v. Abhijit Kundu , (2008) 9 SCC 413(India).
Dr.V.Ravi Chandran v. Union of India, (2010)1 SCC 174 (India).
ArathiBandi v. BandiJagadrakshaka Rao, AIR 2014 SC 918 (India).
Ruchi Majoo v. Sanjeev Majoo , AIR 2011 SC 1952(India).
Surya Vadanan v. State of Tamil Nadu, AIR 2015 SC 2243 (India).
Sumedha Nagpal v. State of Delhi,JT 2000 (7) SC 450 (India).