STOP CHILD ABDUCTION TO INDIA, GIVE EQUAL RIGHTS TO FATHER
Posted by 498A_Crusader on February 28, 2008
|International Court of Justice
2517 KJ The Hague
|Chief Justice of India
Supreme Court of India
Borders Divide jurisdictions but families reunite them. The chain to this link is the global citizen. However, this inter-nation cross-flow has with the passage of time generated a new crop of legal issues in the realm of private international law which comprises rules a court would apply whenever there is a case involving a foreign element.
It is rather ironic that while the British Parliament is working its way through The Human Fertilization and Embryology Bill to legalize parentage from in-vitro fertilization births and recognize same sex couples as legal parents of children conceived through the use of donated eggs, sperms or embryos, in India, 27,000 children die each day, thousands of children go missing each month, many NRI/PIO/OCI/foreign citizen children are kidnapped from abroad and brought to India, and thousands of children are denied access to their father by estranged and vindictive Indian women.
However, India is yet to enact any concrete law that will help prevent childhood deaths, kidnappings, denial of visitation rights to fathers and stop International parental child abduction (removal or retention of a child across international borders by one parent). International parental child abduction to India, either in contravention of court orders or without the consent of the other parent, is sadly an increasing phenomenon that causes acute emotional distress to the abducted child.
A fugitive foreign citizen/permanent resident kidnapper who is declared a proclaimed offender in matrimonial and custody proceedings in his/her country of citizenship/domicile (because of the wrongs he/she did to her ex-spouse and in-laws) kidnaps the foreign citizen children of the marriage and is provided safe haven in India (sometimes enabled by kidnapper’s family’s political/bureaucratic/legal connections). The left behind NRI/PIO/OCI/foreign citizen parent cannot even see or talk to his/her children removed to India and is denied all access because the kidnapper is allowed to file false complaints with the Indian legal system using the easy to misuse laws.
The NRI/PIO/foreign citizen kidnapper is easily able to obtain injunctions from the Indian guardianship courts (despite the lack of jurisdiction) against the return of the kidnapped NRI/PIO/OCI/foreign citizen children to their place of habitual residence (because the Indian Courts ignore all current and even pre-existing custody orders from the foreign courts). These occurrences find daily mention but no straightforward solution for the NRI/PIO/OCI/foreign citizenunder any Indian law.
The Government of India is in the process of acceding to the Hague Convention on Civil Aspects of International Child Abduction. However, before that is done, and India becomes a member of about 80 contracting convention nations, an appropriate Indian legislation will have to be enacted for its implementation. In this way children removed to and from India will be reunited with their aggrieved parent and India will no longer be a sought after destination for parking removed NRI/PIO/OCI/foreign citizen children from foreign jurisdictions. Also, foreign courts will be encouraged to permit NRI kids to freely visit India without fear of abduction. The draft of the Indian Civil Aspects of International Child Abduction Bill 2007 meant to secure the prompt return of children wrongfully retained or removed to India proposes to ensure that the rights of custody and access under laws of contracting states are respected by providing for prompt removal of wrongfully removed children.
The salient features of this proposed law are as follows:
- A Central Authority for performance of duties under the Hague Convention for securing the return of removed children by instituting judicial proceedings in the High Court.
- The appropriate authority or a person of a contracting country may apply to the Central Authority for return of a removed child to the country of habitual residence.
- The High Court may order return of a removed child to the country of habitual residence but may refuse to make such an order if there is grave risk of harm or if it would put the child in an intolerable situation. Consent or acquiescence may also lead to refusal for return of a child by the court.
- The HC may refuse to return a child if the child objects to being returned upon it being satisfied that the child has attained an age and maturity to take into account his views.
Based on the experience from other countries that have ratified the Hague Convention, it is critical that all loopholes that will prevent the implementation of this be plugged. This (the exploitation of loopholes)is likely to be a serious problem in India and the political/bureaucratic/legal system will continue to provide a safe haven for the NRI/PIO/OCI/foreign citizen kidnapper, especially if the kidnapper is the mother. One example of a loophole is that abducting parent starts custody proceedings in India under the 30 year old laws before/in parallel with proceedings started by the left behind parent under the Hague Convention. Before India signs the Hague convention,appropriate laws will have to be enacted to prevent the exploitation of loopholes. In this way, children removed to and from India will be reunited with their aggrieved parent and India will no longer be a safe haven and sought after destination for parking removed NRI/PIO/OCI/foreign citizen children from foreign jurisdictions.
Furthermore, India should take steps to prevent child abductions within India, stop children being taken away from the gender that is denied custody rights, and penalize kidnappers and custodial mothers/fathers who deny visitation to the other parent.Mostly Indian women bargain child custody as blackmailing tool to get easy Divorce and huge sum of Alimony.Even Father is a natural guardian, but hardly 2% of Fathers get Child custody. Custody Should be Equal to both gender and child should be raised with both Parents love and Affection.
We request all of you to sign this e–petition to support the above-mentioned petition.
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