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International Family Law

The leading authority on international family law

08 APR 2016

India - Law Commission receives reference from HC on inter-parental child ‘removal’

India - Law Commission receives reference from HC on inter-parental child ‘removal’

The Law Commission has received a reference from the Punjab and Haryana High Court for examining multiple issues involved in inter-country and inter-parental child removal among families locked in disputes.

At present, India does not recognise such abduction of children as an offence. The removal or retention of a child in breach of custody rights is an offence under the Hague Convention on the Civil Aspects of International Child Abduction 1980. Since India is not a signatory to the agreement, children are taken away with the courts and authorities not being able to take any action.

The Punjab and Haryana High Court has forwarded a reference to the Law Commission and the Union Ministry of Women and Child Development to examine the issue and thereafter consider whether recommendations should be made for enacting a suitable law on the subject and for signing the Hague Convention.

Justice Rajive Bhalla of the High Court passed the order recently in a matter involving a minor child, who was removed from the de jure custody of the court by misusing an interim order of 2006. Despite the efforts of the amicus curiae and the Central Bureau of Investigation, the child remains untraceable.

When it became clear that the minor had been spirited away to the United Kingdom on a fake passport after the petitioners were allowed to retain her custody, the court transferred the investigation to the CBI. The child was found in the UK by the British Police in 2008 and was placed in foster care. The High Court of Justice, Family Division, London, delivered a judgment in April 2009 declaring that it would order summary return of the girl to India.

However, on April 24, 2009, the child left the school from a playground in the company of ‘an unidentified Asian male’. Efforts by the British Police and various agencies to trace her have since met with failure. The court noted that amicus curiae Anil Malhotra, who is a Chandigarh-based lawyer, and the CBI, despite their stellar efforts, had been thwarted at every step on the way primarily for the reason that India is not a signatory to the Hague Convention.

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Taking on record a report submitted by Mr. Malhotra, Justice Bhalla observed in his six-page order that for want of the Indian government acceding to the Hague Convention or enacting a domestic law, children would continue to be spirited away from and to India, with courts and authorities ‘standing by in despair’.

The court forwarded Mr. Malhotra’s report on the subject with the reference and adjourned the matter to March 30. The report stated that it was not possible any longer for Indian courts to stretch their limits to adapt to foreign court orders arising in different jurisdictions.

Mr. Malhotra, who has authored several books on the related subjects, practises in interpretation and application of foreign court orders regarding divorce decrees, child abduction, custody, maintenance, adoption and family-related issues for non-resident Indians, and handles family law litigation across the country.

In his report submitted to the court, Mr. Malhotra has concluded that it was the need of the hour for India to have a codified and statutory law on inter-country and inter-parental child removal. ‘Despite the Law Commission’s recommendation in its 218th report in 2009, India has not signed the Hague Convention and no domestic law defines or governs this problem till date,’ he said.

Currently, India does not recognise such ‘abduction’ of children as an offence.