International parental child abduction (IPCA) is a distressing and complex issue that affects families worldwide. It occurs when one parent wrongfully takes or retains a child, often without the consent of the other parent or legal guardian, leading to severe emotional and psychological consequences for both the child and the left-behind parent. India, like many other countries, has been grappling with the challenges posed by international parental child abductions.

In the recent years, the Indian judiciary has responded to this issue by passing significant judgments that aim to protect the best interests of the child and provide legal remedies to aggrieved parents. This article explores the current status of international parental child abductions in India, with a focus on relevant case laws that have shaped the legal landscape.

International parental child abductions are a significant concern in India, even though precise statistics are difficult to obtain due to underreporting and lack of comprehensive data. Cases of child abduction within the country and across international borders have been reported, with a notable rise in instances involving couples of mixed nationalities. Common motives behind these abductions include disputes over custody and visitation rights, marital conflicts, and attempts to alienate the other parent.

India is among the 14 countries that do not adhere to any protocols concerning international parental child abduction (IPCA), according to a United States report. The Department of State's 2023 annual report on IPCA that was submitted to the US Congress on Tuesday was referring to a pattern of noncompliance.

"India does not adhere to any protocols with respect to international parental child abduction. In 2022, India continued to demonstrate a pattern of noncompliance. Specifically, the competent authorities in India persistently failed to work with the Department of State to resolve abduction cases," it said. "As a result of this failure, 65 per cent of requests for the return of abducted children remained unresolved for more than 12 months," the report added. On average, these cases remained unresolved for three years and ten months.

The mediation cell, established in 2018 by the National Commission for the Protection of Child Rights with the objective of mediating custody disputes, is yet to resolve any abduction cases between the United States and India, it said. India was previously cited for demonstrating a pattern of noncompliance in the 2015-2022 annual reports. In 2022, the department received one initial inquiry from a parent regarding a possible abduction to India for which no additional assistance was requested or necessary documentation was received as of December 31, 2022.

After India formally refused the proposal for a US-India Joint Committee on IPCA in 2021, the department presented a new proposal to the Indian government to create a bilateral dialogue on IPCA following the US-India Consular Dialogue. In response to which, in October 2022, India hosted representatives from the Office of Children's Issues in its capital and held IPCA discussions for the first time outside of the annual Consular Dialogue, it said.

The State Department said in 2022, the competent authorities in India regularly failed to work with the Department of State towards the resolution of pending abduction cases. Moreover, the competent authorities have failed to resolve cases due to a lack of viable legal options, which contributed to a pattern of noncompliance, it added.[1]

India has faced pressure to sign the Hague Convention from the USA and various other countries but has refused. Its decision to not sign the Convention has been guided by the reality of failed "NRI marriages" forcing women to return home with their children.[2]

Legal Framework and Initiatives
In India, international parental child abductions, in the absence of any national law, usually fall under the purview of the Guardians and Wards Act, 1890 and under the Hindu Minority and Guardianship Act, 1956, which provides guidelines for child custody and guardianship matters.

The Hague Convention on the Civil Aspects of International Child Abduction, which India is not a signatory to, provides a framework for the prompt return of abducted children to their country of habitual residence. However, India has taken significant steps towards tackling parental child abductions through various legislative measures and case laws.

Further, one of the speedy methods (under Indian Law) to process the return of an internationally abducted child, by his/her parent in India, is to file a writ petition of Habeas Corpus, under Article 32 before the Supreme Court of India, or under Article 226 of the High Court which falls under the jurisdiction where the child is suspected to be abducted to. This writ is filed by the left behind parent, before the relevant Indian Court.

The Protection of Children from Sexual Offenses (POCSO) Act, 2012, and the Juvenile Justice (Care and Protection of Children) Act, 2015, prioritize the welfare of children, including those affected by abduction. These acts aim to provide a robust legal framework for preventing, investigating, and prosecuting child abductions. Additionally, the Supreme Court of India has issued landmark judgments emphasizing the rights and protection of the child.

Surinder Kaur v Harbax Singh Sandhu[3] (1984) was one of the earliest cases in which the Indian judiciary addressed claims of international parental child abduction and made a significant statement on the welfare of a child and also about jurisdiction. The parties were married in India and moved to England, where a child was born to them. Marital discord resulted in the husband plotting criminal assault on the wife, leading to his conviction and imprisonment.

The husband, on probation, removed the child from England and brought him to India. The wife, in possession of an order of Ward of the Court, arrived in India and filed a petition before the judicial magistrate for custody. The husband successfully argued that the Hindu Minority and Guardianship Act saw the father as the natural guardian. The wife's writ petition for custody of the child was dismissed on the ground that the financial and social condition of the wife in England was not conducive to the welfare of the child.

Against the order of the High Court, the wife brought a Special Leave petition in the Supreme Court. Espousing the welfare and best interests of the child as the foundational guidance for decisions on international parental child abduction, the Court observed Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. But, that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor.[4]

Recent case laws in India have contributed to shaping the legal landscape concerning parental child abductions. One such recent notable case is the judgment in V. Ravi Chandran v. Union of India[5] (2010) judgment, where the Supreme Court ruled that the Indian courts have jurisdiction over custody matters of Indian children even if they are taken abroad by one of his/her parents. This judgment highlighted the need for international cooperation in resolving cross-border parental child abduction cases and encouraged the Indian government to consider ratifying the Hague Convention.

In the case of Ruchi Majoo vs. Sanjeev Majoo[6] (2011), the Supreme Court of India emphasized the paramount importance of the child's welfare in custody disputes. The court held that when deciding custody, the child's happiness and well-being should be the primary consideration, and the principle of continuity in their life should be upheld. The court also underlined that children should have access to both parents, except in exceptional circumstances.

In another significant case of Surya Vadanan vs. State of Tamil Nadu[7] (2015), the Madras High Court addressed the issue of parental child abduction by focusing on the child's rights. The court emphasized that a child should not be treated as a chattel or object, but as an individual with distinct rights. It held that depriving a child of their other parent's love and affection without a valid reason constitutes a violation of their fundamental rights.

In the case of Sarita Sharma vs. Sushil Sharma[8] (2020), the Supreme Court of India emphasized the significance of international cooperation in resolving cross-border parental child abductions. Although, India is not a signatory to the Hague Convention, the court stressed the need for judicial comity and cooperation with foreign courts to protect the child's best interests in such cases.

Conclusion:
International parental child abductions continue to pose a significant challenge in India, impacting the lives of children and left-behind parents. While India is not a signatory to the Hague Convention, recent case laws and legislative measures have demonstrated the country's commitment to addressing this issue.

The judiciary's emphasis on the child's welfare, the recognition of international jurisdiction, and the criminalization of parental child abduction highlight the evolving legal framework. Although, some Indian case laws on international parental child abductions provide valuable legal guidance, there is still a need for continued efforts to raise awareness, improve legal mechanisms, and promote international cooperation to address the challenges posed by international parental child abductions effectively.

End-Notes:

1. India does not adhere to international parental child abduction protocols, says US report, The Tribune, May 2023,
2. 'The Many Legal Complexities Around Cross Border 'Parental Abductions'', The Wire, May 2022,
3. 1984, 3 SCR 422
4. 'International Parental Child Abduction and India – Attempting Engagement with the Hague Convention', Stellina Jolly and Sai Ramani Garimella, Australian Journal of Asian Law, 2018, Vol 19 No 1, Article 3: 47-66,
5. (2010) 1 SCC 174
6. (2011) 6 SCC 479
7. AIR 2015 SC P.2243
8. AIR 2002 SC P.1019

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