Frame a law based on the Hague Convention

In 2012, Smriti Madan and Perry Kansagra started their nine-year legal battle for the cross-border custody of their child, Aditya Vikram Kansagra. Perry Kansagra is a dual citizenship holder of Kenya and the United Kingdom and had refused to subject himself to the jurisdiction of the Supreme Court of India after flying away with the child to Kenya.

In October 2020, the Supreme Court (SC) of India gave Aditya’s full custody to his father. But in October 2021, the SC directed the Central Bureau of Investigation to register a case against Perry Kansagra, accusing him of kidnapping Aditya by securing court orders for his custody (based on false representations) and taking him to

Kenya. Accordingly, the custody of the child with the father was declared to be illegal and ab initio void.

The taking away of the child by a parent to another country is known as “inter-country child abduction”.

Due to the rapid increase in globalisation and augmented transnational movement of individuals and families, there is an unparalleled spurt in familyrelated disputes, especially concerning the custody of children.

The adoption of The Hague Convention on the Civil Aspects of International Child Abduction in 1980 was an effort of international collaboration to combat the issue of transnational inter-country abduction. The Convention is an attempt to prevent the wrongful removal of the child and to ensure the return of the child to her habitual residence. The Convention’s objectives are: Reverse the abduction to help mitigate the psychological trauma for the child and return the child to her habitual residence. One hundred and one countries are signatories to this Convention that shields children under 16 years from “wrongful removal or retention” by a parent.

The Convention requires the establishment of a central body in signatory countries to assist parents in locating the abducted children and help in promoting harmonious solutions to such cases. It also mandates that the country to which the parent flees with the child has to send back both to the child’s

“habitual place of residence”. Under the Convention, removal or retention of a child is “wrongful”, if it is in breach of “rights of custody” in the child’s country of habitual residence. However, there are exceptions to the State’s requirement to return a child if there is a serious danger of physical or psychological harm to the child or the child’s objection to the return.

Unfortunately, there is no codified law in India that deals with the issue of custody and inter-country abduction. In fact, the term “custody” is not even defined in any statute. However, we do have the Guardians and Wards Act, 1890, which defines a guardian as a person having the care of the person of a minor or of their property or of both.

The fierce battles for custody, which require proof of conventional evidence, fall under this outdated Guardians and Wards Act, which is a secular act. Hindu parents often take resort to Hindu Minority and Guardianship Act, 1956, in seeking guardianship and custody over their children, making use of the extraterritorial application of this Act. Filing a writ of habeas corpus is another legal alternative utilised by aggrieved parents.

Since India is not a signatory to the Hague Convention, any case related to child custody is decided by the Indian courts on merit, taking into account the principles of comity of courts, and the principles of best interest and welfare of the child.

In Dhanwanti Joshi vs Madhav Unde, the SC observed that the welfare of a child is of paramount importance and the order of any foreign court is only a factor to be taken into consideration while dealing with child custody matters.

Despite the Hague Convention having garnered robust international support, India continues to oppose it. It was thought that acceding to the Convention would hamper the protection of Indian women and children from difficult living situations, especially in cases of those suffering from domestic violence in NRI marriages.

The decision not to accede to the Convention runs contrary to the recommendations given by the Law Commission in 2009, which endorsed the accession. Though the government brought the Protection of Children (Inter-country Removal and Retention) Bill in 2016, nothing substantive could be achieved.

Indisputably, there is an atypical surge in the transfer of children by parents from abroad to India and vice-versa. The issue of inter-country adoption is a global concern. Therefore, a balanced and sensitive approach has to be taken by the government while taking a final call.

However, in the current scenario, it is imperative for the country to adopt a comprehensive law addressing the international child abduction by adhering to the principles set out in the Hague Convention.

THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION IN 1980 WAS AN EFFORT TO COMBAT THE ISSUE OF TRANSNATIONAL INTERCOUNTRY ABDUCTION. UNFORTUNATELY, THERE IS NO CODIFIED LAW IN INDIA THAT DEALS WITH THE ISSUE OF CUSTODY AND INTERCOUNTRY ABDUCTION

Jyoti Singh is an advocate based in New Delhi The views expressed are personal