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December 2008 - January 2009



by Anil Malhotra

A one day Lecture Seminar was held at the Army Institute of Law, Mohali (India) to deliberate on the topic, ‘India, Inter-Country Parental Child Removal and the Law.” The principal lecture was delivered by Anil Malhotra, Advocate. Mr. Justice AR. Lakshmanan, Chairman, Law Commission of India delivered the Presidential Address and the Inaugural address was given by Mr. Justice T.S. Thakur, Chief Justice, Punjab and Haryana High Court. The concluding observations were made by Mr. H.S. Mattewal, Advocate General, Punjab and Dr. Anjana Kakkar, Principal, Army Institute of Law deliberated on the issues with the Panelists.

Dr. AR. Lakshmanan, Chairman, Law Commission of India stressed upon the need for India to sign the Hague Convention on Civil Aspects of International Child Abduction. He expressed that the dilemma before the Indian Courts invariably was whether to send back the removed child to the country of his origin. Since India was not a signatory to the Hague Convention, the custody of such children are considered by the Indian Courts on the merits of each case. In all such matters, the welfare of the child is considered to be of paramount important and the order made by the foreign court is considered to be only one of the relevant factors in such decisions.

Chief Justice T.S Thakur said that the profile of litigation had changed over the years. He added that now things were fast changing and issues which defied immediate solutions were fast cropping up. Inter-Parental Child Removal was one such issue.

Anil Malhotra narrated his professional experience on the issue spread over 25 years to say that the magnitude of the problem could be gauged from the fact that there were rampant inter-parental child removal cases in cross border unions between 1.1 Billion Indians of which 30 million were non-resident Indians living in 130 nations abroad. India not being a signatory to the Hague Convention, compounded by the fact that inter-parental child removal is neither an offence nor is it the violation of a defined right, there existed no remedy in Indian law to enforce custody claims.

The High Courts and the Supreme Court of India entertained Habeas Corpus petitions for securing the custody of a minor at the behest of a parent who lands on Indian soil alleging violation of a foreign court custody order. In the absence of any other practical remedy, this is the most preferred judicial recourse for effective, speedy and timely decisions. Anil Malhotra however added that Inter-parental Child Abduction not being a defined offence under any statutory Indian law, the seeking child custody under a writ of Habeas Corpus was an uphill task since it was extremely difficult to establish illegal detention of a child by his parent. Custody claims under conventional guardianship proceedings were tedious, cumbersome, protracted and often a frustrating exercise. Hence, there was a dilemma in reality.

It was further deliberated that there was a lack of uniform Indian policy on the subject and the responsibility lay on the Indian legislature and the executive to frame a suitable legislation and accede to the Hague Convention in matters of both inbound and outbound inter-parental child abduction to and fro from India.

Anil Malhotra narrated that in preparation to accede to the Hague convention on child abduction, a Civil Aspects of International Child Abduction Bill had been prepared but the progress was slow. He quoted earlier law and latest verdicts of Indian Courts to elaborate upon the issue. Reasons as to why India should join the child abduction convention were also quoted. Suggestions on the proposed Bill were also mooted. The consensus was that signing of the convention would ensure effective resolution of custody issues involving children removed to India from foreign jurisdictions.

The Embassies of foreign jurisdictions like America, England, Australia, Canada and Germany were particularly concerned with the status quo issue whereby children of Indian origin who had acquired foreign nationalities of their jurisdictions through their parents were presumably at risk by being removed to India. Unresolved court cases in inter-parental child custody disputes led to peculiar situations as India was not a Convention Country. Voicing concerns, even they felt that India ought to consider signing the Hague Convention to permit a free resolution of Inter-Country Child Custody Disputes by litigating parents who contested parallel proceedings in different jurisdictions.

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