Parental Abduction As A Crime In India: A Pressing Need
Author: Shreya Singh
Amity University, Lucknow
Rising transnational individual moves and, as a result, families have resulted in a complicated conflict of laws issues in family-related conflicts, particularly when it comes to child custody. Such questions frequently emerge as a result of differing legal criteria in different jurisdictions, as well as the application of different meanings to the same criteria, leading in lengthy and protracted custody disputes. The Hague Convention on the Civil Aspects of International Child Abduction was an important step toward resolving jurisdictional issues by emphasising the abducted child’s quick return to the appropriate forum. Concerns about uneven standards and interpretations continue. The fundamental objective of the Convention is to shield whatever the current situation child authority game-plan existed in a flash before an affirmed wrongful evacuation or upkeep thus keeping a parent from intersection worldwide limits searching for a more insightful court. As of now, there is no specific Indian institution tending to issues related to the abduction of the child from and into India. In any case, the Law Commission of India had introduced the 218th Report named “Need to agree to The Hague Convention on the Civil Aspects of International Child Abduction 1980” on 30th March 2009. This article tries to emphasise the importance of a strong law enforcement system, which can only be achieved by criminalising parental abduction.
Children’s vulnerability is linked to their “tender age,” necessitating the utmost care and protection. Children are more vulnerable to mistreatment, exploitation, prejudice, and other forms of violence due to their mental and physical immaturity. In the overall protection of children, parents and the community play a critical role. The fact that the state should pro-actively preserve the interests of minors and ensure the child’s well-being is widely agreed upon. In addition to multiple international treaties, India has a number of laws that address children’s rights, their protection, and the consequences of violations.
The children of the parties involved are the ones who are most affected by the rise in the number of cases of divorce and legal separation around the world. According to the law of the country, one parent is granted custodial rights while the other is denied such rights. Non-custodial parents have been known to kidnap their own children from the custody of the other parent. It is not required for the non-custodial father to be personally present throughout this process in order to abduct the child; nevertheless, he could be joined by grandparents, acquaintances, or other family members.
ABDUCTION AND KIDNAPPING
Abduction is defined as an act of compelling/taking away a person by deceptive means convincing him to leave any place, according to Section 362 of the Indian Penal Code, 1860. Kidnapping is divided into two categories: “kidnapping from India,” in which a person is taken outside of India without their agreement, and “kidnapping from lawful guardianship,” in which a person entices a minor or a person of unsound mind from legitimate care. The individual who commits the responsible act in the context of abduction could potentially be a legal guardian.
WHAT DOES PARENTAL ABDUCTION IMPLY?
In layman’s terms, parental abduction occurs when one parent removes a kid without the consent of the other parent, usually in violation of a custody agreement. It’s prevalent in situations where the child’s parents are going through a divorce or another type of matrimonial conflict. Parental abduction is not covered by the IPC or any other particular legislation. In India, parental child abduction is not considered a crime (unless it is coupled with the purpose to commit another crime); it is recognised as a custody struggle, and a civil suit can be filed. The Guardians and Wards Act of 1890 and the Hindu Minority and Guardianship Act of 1956 govern child custody in India (Applicable based on the parties’ religions).
Because both parents are natural guardians of the child, parental abduction puts the youngster in an unusual situation. The following elements are considered in parental abduction cases:
- The responsible parent’s legal standing, including any court orders relating to the child’s care: It is not per se culpable if the parents are not divorced and one parent takes the child away from the other parent, but being unresponsive or placing the child in an inaccessible position from the other parent with the intent to restrict the other parent could be a crime. Parental abduction occurs when one parent has sole physical custody of a kid and the other removes the child away from that lawful custody without the permission of the custody-holder. Furthermore, any previous court orders are enforceable and must be followed by the parties. A parent who merely has visiting rights, for example, cannot have full custody of their child. Non-compliance with a court order can also considered contempt of court.
- Parental intent: The parent’s intent to injure the kid or create custodial interference will be taken into account.
THE PROSECUTION MUST PROVE THE FOLLOWING COMPONENTS IN ORDER TO CONVICT YOU OF PARENTAL KIDNAPPING:
1. You abducted, enticed away, kept, withheld, or concealed the child from his or her rightful custodian, who may be the other parent;
2. The child was under the age of 18;
3. You did not have the legal right to custody of the child; and
4. You planned to keep or detain his or her lawful custodian.
WHEN IS IT LEGAL FOR ONE PARENT TO TAKE A CHILD AWAY FROM THE OTHER?
- It is legal for the other parent to take your child if you are married and there is no court order of custody;
- or it is legal for the other parent to remove your child if you are divorced and the other parent has sole physical custody.
- Legal custody differs from physical custody. The other parent cannot take your child away from you if you have sole physical custody.
WHEN IS IT ILLEGAL TO REMOVE A CHILD FROM ONE PARENT AND GIVE IT TO THE OTHER?
- If you have sole physical possession, the other parent cannot legally take your child away from you. Taking your child from you can be a felony known as “parental kidnapping.”
- Legal custody differs from physical custody. The other parent cannot take your child away from you if you have sole physical custody.
- The other parent must return your child or allow you to pick up your child after parenting time or visitation. The other parent is required to follow the parenting time schedule. Even if you share legal custody, they are violating the custody order if they do not return your child or allow you to pick up your child. They could be charged with “parental kidnapping” or “custodial interference.”
THE CHILDREN’S AND CUSTODY LAW IN INDIA
The domestic legislation of the nation to which the child was removed applies in the instance of improper removal to a non-signatory country. Though all domestic laws appear to assume that custody applications should be resolved based on the “best interests of the child,” the phraseology has been interpreted differently in different countries. Foreign law and foreign systems are likely to be viewed with scepticism and anxiety, which exacerbates the issues that come with non-signatory status. As a result, obtaining a foreign court order ordering the abducting parent to physically hand over the child is difficult for the left-behind parent. While it is possible to contact the government of the nation from where the child was illegally removed, there are few examples of parents successfully obtaining their child’s return through this method. Governments have only sometimes interfered to provide information and guidance on how to handle the situation in order to obtain the child’s return.
The status of India as a non-signatory has been debated, with the Indian courts advocating accession. Except for a few rare circumstances, parental child abduction cases in India have been recognised as child custody issues, for which personal law applies. According to US government data, India has a significant proportion of children that have been unlawfully removed, especially when compared to other countries. According to a 2016 report, there were 99 unresolved custody return applications in India, with 24 of them filed in 2015.
LAW OF STATUTORY INSTRUCTIONS
The Hindu law governing child custody is intertwined with the Hindu law governing guardianship. Guardianship refers to a set of rights and powers that an adult possesses in connection to a minor’s person and property, whereas custody relates to the minor’s upbringing and day-to-day care and control. In either secular or religious Indian family law, the term “custody” is not defined. The Guardians and Wards Act 1890 (India) (‘GWA’) defined a ‘guardian’ as a person who is responsible for a minor’s person, property, or both. The GWA is a secular law that governs guardianship and custody issues for all children living in India, regardless of their faith. While religious law can still be used to resolve substantive concerns, the GWA is the appropriate procedural law. It allows district courts to appoint guardians for a minor’s person or property if the minor’s natural guardian or a testamentary guardian designated under a will fails to fulfil their responsibilities to the minor. Section 17(2) states that decisions about a minor’s welfare will be made based on their age, gender, and religion; the character and capacity of the proposed guardian, as well as how closely related the proposed guardian is to the minor; the deceased parents’ wishes, if any; and any existing or previous relationship of the proposed guardian with the minor’s person or property. The court may consider the minor’s preference if they are mature enough to make an educated opinion, according to Section 17(3). The GWA then addresses situations in which the court is unable to appoint a guardian. Furthermore, section 25 of the GWA governs the guardian’s authority over the ward’s custody, and section 25(1) authorises the court’s order to be used to secure the ward’s return.
The Hindu Minority and Guardianship Act 1956 (India) (‘HMGA’) names the father as a minor’s natural guardian, followed by the mother.
- In the event of a minor boy or unmarried minor girl, the father is the natural guardian, followed by the mother.
- A kid who has not reached the age of five years is usually in the custody of his or her mother.
The Code of Civil Procedure (1908) (‘CCP’) deals with the enforcement of foreign court orders. 45 In matters involving foreign judgements, Sections 13 and 14 implements a res judicata rule. These articles enshrine the idea of private international law that a judgement issued by a foreign court of competent jurisdiction can be enforced by an Indian court and serves as res judicata between the parties:
- A foreign decision must be final.
- The judgement must have been rendered by a court that is competent under the laws of the state in which it was established, and it must have directly adjudicated on the “matter” that is pleaded as res judicata. The parties must have agreed to its jurisdiction or have been present or represented at the foreign court’s proceedings.
- A foreign judgement on the merits of the matter must have been issued.
WHAT IS THE HAGUE CONVENTION ON THE INTERNATIONAL ABDUCTION OF CHILDREN?
It is a treaty that ensures the timely return of a child who has been “abducted” from their “habitual residence” country. The Convention has been signed by 97 countries. Despite the US and European pressure, India has yet to ratify the treaty. Contracting nations are required by the Convention to establish a central authority to track down unlawfully removed children and achieve their return to their country of habitual residence, regardless of their own legislation on the subject. Children under the age of 16 are covered under the Convention.
WHAT IS INDIA’S POSITION ON THIS ISSUE?
In 2009, India’s Law Commission suggested that the Hague Convention be signed because it “would increase the chances of achieving the return to India of children who have their home in India.” In the absence of legislation, the Commission noted that Indian courts had not followed a pattern in such cases.
The Punjab and Haryana High Court sent the case to the Law Commission and the Ministry of Women and Child Development in February 2016. “The removal or retention of a child in breach of custody rights is a wrong under The Hague Convention,” Justice Rajive Bhalla (now retired) said in his interim ruling, “but for lack [of] the Union of India acceding to The Hague Convention or implementing a domestic law, “Children will continue to be kidnapped from and to India, with courts and officials watching helplessly.”
The court ordered the Commission and the Ministry to “examine whether suggestions for passing an appropriate statute and signing The Hague Convention should be made…”
A draught Civil Aspects of International Child Abduction Bill, 2016, was posted on the Ministry’s website in June 2016 for public comment, featuring provisions similar to The Hague Convention. Following an examination of the Bill and the issue, the Law Commission presented a new version of the Bill in October, dubbed The International Child Removal and Retention Bill, 2016, in accordance with The Hague Convention and previous legal precedents in the country.
DISPUTES AT THE GLOBAL LEVEL:
International kidnapping has major ramifications for all parties involved. It is the illegal removal or enticement of a kid from their home. Usually, one of the parents, an acquaintance, or a family member performs such an act in another country.
Varied countries have different laws regarding parental child abduction. India is not a member of the Hague Convention on the Civil Aspects of International Child Abduction, which was established in 1980.
Since the advent of globalisation and technological advancement, which has resulted in a very busy lifestyle and work culture, statistics show that the frequency of divorce cases and custody conflicts has increased. The international phenomenon of parental child abduction/kid removal has its origins in this country.
The Supreme Court of Ontario, Canada, ruled in Mahadevan v. Shankar, 2010 ONSC Carswell Ont 8537, that the father of a four-year-old kid living in Ontario should not be allowed to accompany the child on a family trip to India.
The Superior Court in New Haven, Connecticut found in Balakrishna v. Murali, FA104042105, July 18, 2012, that the mother of a young child living in Connecticut should not be allowed to take the kid on a family trip to India.
In Purushothaman v. Radhakrishnan, 2014 ONCJ 300, the court considers a judge’s discretion to deny a parent permission to travel with his or her child(ren) to a non-Hague Convention country if the other parent feels the child is attempting to flee Ontario’s jurisdiction. The court considered the following considerations while making its decision in this case:
- Young toddlers have the ability to absorb new experiences and concepts;
- There is no evidence that the mother overstayed the first trip to India with the child, and it is undisputed that the mother went;
- There was persuasive evidence of an emotionally and physically toxic relationship in which the father attempted to exert control over the mother’s life and behaviour;
- While there is evidence that the mother had strong motivation to flee early in the proceedings, she chose to stay in Canada and work out issues with the father through the Canadian legal system; and
- If the mother intended to abscond with the child, she would have done so years before being granted sole custody in 2012.
The court found no evidence that the mother had any reason to take the child out of Canada permanently. As a result, it would be in the child’s best interests to allow him to go on vacation. For a fixed length of time, the mother was free to travel to India with the child. The father was also warned by the court not to object to travel on similar grounds in the future.
IMPORTANT JUDICIAL DECISIONS
In Re: McGrath (Infants)  1 Ch 143 Lindley LJ stated :
“The wellbeing of the child is the most important factor for the Court to consider. However, a child’s well-being should not be judged solely in terms of money or physical comfort. The term “welfare” must be interpreted broadly. The child’s moral and religious well-being, as well as its bodily well-being, must be considered. Affectionate ties cannot be overlooked.”
The aforementioned words have been used in different Indian legal decisions to this day. The courts cited the 1989 Convention on the Rights of the Child, emphasising the relevance of the principle of the best interest of the child(ren) in 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. Union of India, AIR 1997 SC 2021.
The term “best interests of the child(ren)” refers to the rationale behind any action made in the child’s best interests, such as ensuring the child’s basic rights and needs, identity, social well-being, and physical, emotional, and intellectual development.
In Dr.V.Ravi Chandran v. Union of India, (2010)1 SCC 174, and ArathiBandi v. BandiJagadrakshaka Rao, AIR 2014 SC 918, the Supreme Court directed that the respective children be returned to their “habitual residence” country based on the principle of “comity of courts” for the determination of their best interests and welfare, which is the primary consideration.
The Supreme Court stated in Ruchi Majoo v. Sanjeev Majoo, AIR 2011 SC 1952, that if the kid is not “ordinarily resident” within the Court’s territorial bounds, the Court must investigate the situation independently. In the case of Surya Vadanan v. State of Tamil Nadu, the Supreme Court clearly reaffirmed the principles that the Courts have utilised throughout the years to determine situations of transnational parental abduction. The idea of “comity of courts and nations” must be observed, according to the Court, as should the principle of “best interest and welfare of the child.”
- Interlocutory orders of foreign courts of competent jurisdiction regarding child custody must be respected by domestic courts;
- interlocutory orders of foreign courts of competent jurisdiction regarding child custody must be observed by domestic courts;
- and when a local court is seized of a child custody litigation, an elaborate or summary investigation by local courts where there is a pre-existing order of a competent foreign court must be founded on reasons and should not be ordered as a matter of course.
“No judgement by any court can reconstruct the fractured household or offer a child the care and protection of both diligent parents,” the Supreme Court stated in the case of Sumedha Nagpal v. State of Delhi. No court enjoys dealing with such issues or feels at ease deciding them. But a decision must be made, and it cannot be one that is incompatible with traditional family and marriage values. The family is society’s fundamental unit, and marriage is the most essential relationship in life, influencing people’s morality and culture more than any other institution. Both parents’ care and tenderness are essential during infancy and impressionable age for the welfare of the child.
The growth in parental abductions around the world has a significant impact on children’s interests. In order to combat situations of parental abduction, the following measures can be implemented:
Non-governmental organisations (NGOs) play a critical role in promoting the welfare and rights of children. NGOs like CRY have created, launched, and organised campaigns to elevate the voices of children and young people.
“Bring Our Kids Home” is a non-profit organisation founded by left-behind guardians whose children have been kidnapped in the United States and sent to India. They raise concerns about International Parental Child Abduction (IPCA) within the organisation and advocate for the prompt return of all kidnapped American children who have been victims of this violation.
They hope to transform the way child abduction is perceived and addressed in the United States and India through training, activism, and support. Child abduction is a form of child maltreatment as well as a crime against children and their abandoned parents. They also strive to assemble a broad coalition of support from the government, children’s rights organisations, the legal community, the media, and, most importantly, the general public.
The quickest solution is to file a Writ of Habeas Corpus in the High Court or Supreme Court for the return of parental power on the basis of a distant Court order or infringing upon parental rights. The elective cure is to begin guardianship processes under the Guardian and Wards Act of 1890 by driving proof and recording all relevant information under the supervision of a Guardian.
It is strongly advised that strict legislation be enacted for the protection of children. There is no law that governs such a crime in the current situation.