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Inter-country Child Abduction - Indian Legal Response
By: Molshree “Molly” A. Sharma / January 20, 2017
As the world shrinks and people travel all over the world to work and live so do they establish families and roots where they go. International marriages are becoming increasingly common as immigration and vast diasporas’ becomes a reality of the world. As a result, the development of a body of private international family law has been crucial to resolving the inevitable issues that arise. A significant issue is that of child custody where parents may not only be of different nationalities but also may simply live or be present in different countries for what become crucial periods of time. Before, the issue of custody and best interest of the child can even be addressed the first matter of inquiry is which country can rightfully adjudicate the custody matter. To avoid, competing jurisdictions and purposeful wrongful removal of children by a parent attempting to divest the other parent of any custody rights, the Hague Convention on the Civil Aspects of International Child Abduction serves as the comprehensive body of law that first establishes which country has the right to adjudicate custody which is crucial as stated above, to avoid, multiple jurisdictional fights, and entanglement of politics on what become emotional issues of nationhood, cultural standards for children and issues surrounding parental kidnapping. There has been a strong push by practitioners for India to sign the Convention. To be a part of the global community, the case is made, that India must be seen as a place where standard international Conventions especially as they relate to child custody will be honoured. In fact the Indian Law Commission in 2009 completed its report authored in part by Justice Lakshmanan, concluded that India must accede to the Convention and sign it rather than become a haven for parental kidnapping. This is however controversial for a number of reasons where realities of spousal abuse, fraudulent marriages and lack of ability to litigate are cited. Further, so far, the judiciary in India has been extremely quick to adjudicate custody disputes even when the child has not resided in India for any substantial period or arguably has been “wrongfully removed” per standards of the Convention. The chapter will explore the case law generated specifically in the Indian case law and also changes in it, while at the same time explore what reasons Court’s have applied to resolve these issues.