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Why India Should Not Sign The Hague Convention - On Parental Child Abduction

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WHY INDIA SHOULD NOT SIGN THE HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION.

  1.       The Hague Convention on Civil Aspects of International Child Abduction was signed and came into force in the year 1980.  Since that time a number of countries have become parties to the said Hague Convention.  The Hague Convention on Civil Aspects of International Child Abduction encompasses entirely Western ideals and notions on the issues of child custody and guardianship.  India is one of the major countries which has chosen not to become a party to the said Convention, and rightly so.  Not surprisingly, India has been subjected to pressure from Western countries, especially, the USA and the UK to become a party to the said Convention. India continues to refuse to succumb to such pressures.  This Memorandum summarizes, in brief, why India should clearly and emphatically continue to refuse to succumb to Western pressure to sign the Hague Convention on the Civil Aspects of International Child Abduction.


  2.  India has consistently objected and continues to object to being a party to the said Convention.  Those who urge India to sign this Convention, often put forward the arguments that go like this – “Because India is a modern country and because the Indian diaspora has increased quantitatively over the years, the number of Indians marrying and staying abroad and giving birth to children abroad have increased.  Therefore, India should be forward-looking and should change itself and sign the Hague Convention on the Civil Aspects of International Child Abduction.  If India becomes a signatory to the Convention, it will help in the return of those Indian children who have been abducted and taken abroad.” 

    However, these advocates and proponents who urge India to sign the Hague Convention, have failed to understand the fundamental and simple fact that the number of Indian children taken away from India to foreign countries is miniscule, compared to the number of Indian-origin children who have been brought back into India, by either of their parents, mostly mothers, in the interest of protecting the life, safety and security of such children.  Moreover, there is an increasing number of the Indian diaspora abroad, especially the younger generation, who, having being exposed to the Western culture, values and lifestyle, are opting to raise their children in India with the same family value systems and family ties that they themselves grew up with.


  3. What would be the effect of India signing the Hague Convention without changing its own laws?

    The Hague Convention clauses, as they exist at present, state unequivocally that when a minor is abducted from one Contracting Party and taken into the territory of another Contracting Party, the Contracting Party from whom the child is taken away, may make a request for immediate return of the said child to the Central Authority of the Contracting Party where the child has been taken away to.  The Contracting Party to whom such a request is made is known as the Requested State and Contracting Party which makes such a request is known as the Requesting State.  Normally, as per the framework of the Hague Convention, the Requested state is expected to adhere to or comply with such requests from the Requesting State, irrespective of its own laws regarding child abduction.  Thus, if India were to sign the Hague Convention and thereafter were to receive requests from another Contracting State for return of an abducted child, the Indian Courts would be requested to comply with such requests, notwithstanding the fact that as per existing Indian law, a child being in the custody of either of its parents, is a child in lawful custody and such a child is not defined to be an “abducted” child.  In effect, signing the Hague Convention would mean bowing down to foreign pressure and accepting a foreign interpretation of law which is contrary to law as interpreted in India.  This would also amount to an attack on the very sovereignty of India as an independent democratic nation.  It would even nullify Section 13 of the Code of Civil Procedure, in so far as foreign decrees/orders in child abduction cases from Contracting Parties are concerned.

    Section 13 of the Code of Civil Procedure reads as follows :-

“A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties, or between parties under whom they or any of them claim litigating under the same title, except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in India.

The power granted to Indian Courts by and under Section 13 of the Code of Civil Procedure, to examine and scrutinize foreign decrees in order to decide whether or not they ought to be executed in India, would be totally nullified in the event India were to sign the Hague Convention, as it stands at present, in so far as cases pertaining to child abduction are concerned.

4.     India becoming a signatory to the Hague Convention would never prove to be beneficial for the interests of persons and children of Indian origin or to citizens of India, because there are very few instances of Indian children being taken away from India to a foreign country by either one of the child’s parents.  Even if such incident were to occur, the question of India making such requests of return of such Indian children from a Contracting Party to which the said children have been so removed, would never arise, because as already discussed hereinabove, a child who is in the custody of either one of its parents, is not defined to be an ‘abducted’ child, not only as per existing Indian laws, but also as per Indian culture and value systems. The Indian family value system has been the uniting thread, historically, that has stitched the entire Indian diaspora together, both in India and globally.  Disintegration of this fabric will throw the entire nation and civilization in complete turmoil.

Thus, the Advocates and proponents who favor India becoming a signatory to the Hague Convention, thus allowing its own value systems and legal systems to succumb to and be completely eroded at the hands of foreign intervention, have failed and neglected to understand these crucial issues. 

5.      The Advocates and proponents in favour of India signing the Hague Convention, would then argue that India should make  drastic changes/amendments to Indian laws, such as Section 361 of the Indian Penal Code, Section 13 of the Code of Civil Procedure, several sections of the Hindu Minority and Guardianship Act etc., and thereafter sign the Hague Convention.  However, amending Indian laws to bring them in line with laws relating to child abduction in foreign countries, only with a view to getting certain “imaginary benefits” under the Hague Convention is neither practical nor beneficial to any Indian citizen, or to anyone of Indian origin, for as already stated, even people of Indian origin aspire to maintain and stay connected with their roots in India, both for themselves and also for their children.  In fact, amending Indian laws in this manner to bring them in line with western laws, based on western i.e alien ideas and values pertaining to family, personal relations etc., would mean bowing down to foreign pressure without understanding and considering the Indian ground reality.

The Indian ground reality is that though the young generation may be migrating abroad and may seem to be leading a modern lifestyle, as far as personal life is concerned, they remain steeped in Indian values and traditions regarding child-rearing, family life, etc.  Very often, even in Indian families living abroad, the mother is the prime and sometime the only care-giver of children.  The children are her prime responsibility even though she may be earning as much as, or sometimes even more than her husband.  If such a woman faces marital problems with her husband while abroad, which in many instances takes the form of extreme abuse and domestic violence, and decides to come back to the safety and security of her own family and extended family in India, it is but natural that she would bring her children along with her.  In such a scenario, our Indian laws would certainly not consider her guilty of kidnapping/abducting her own children.  Or, consider the case where, if such a warring couple were to have come down for some special occasion to India with their children and the wife were to refuse to return abroad with her children and would choose to remain in India with her children, in the interests of her children, our Indian laws would not consider her to be guilty of illegally retaining those children in India or of “kidnapping” her children.  It also ought to be remembered that there have been several instances, where a spouse living abroad, has filed a false case of child abduction against the other spouse who has child custody and who is in India, only with a view to getting a divorce decree easily from a foreign court, by falsely and maliciously portraying the spouse in India to be a criminal.  If such a spouse living abroad, were to get even child custody easily, by invoking the provisions of the Hague Convention, it would simply leave the spouse in India, as also the children, completely traumatized.  In case India were to sign the Hague Convention, it would have a disastrous effect on victimized wives, living abroad with their husbands, who would not dare to save themselves and their children by coming back to India, for fear of being branded as criminals, guilty of child abduction.  Such victimized wives, would constantly live in the fear that in case they were brave enough to come back to India with their children, their children would be ultimately sent back to the foreign country and handed over to the mercy of their violent husbands, under the aegis of the draconian clauses of the Hague Convention.  Warrants issued by courts in foreign countries using the shield of the Hague Convention clauses, are themselves ultimately violative of the basic principle of the paramount consideration being the welfare of the children, in child custody cases.  Existence of a foreign court warrant puts the custodial spouse under extreme and unimaginable stress on a continuing basis, and this naturally adversely affects the upbringing of the child who is in the custody of such a spouse.  The very existence of such debilitating laws and conventions based on such laws, violates the rights of affected children to a happy, balanced, care-free and normal childhood.              

It is to be appreciated that only the most compelling circumstances would drive a normal person to give up the obvious advantages of a lucrative job in a foreign country, or even foreign citizenship, and to seek shelter in his/her home state with his/her children. 

It also ought to be appreciated that foreign divorce decrees very often prove to be ultimately generous to wives in terms of child support, alimony and share in their husband’s property/ies, and yet there are scores of Indian women who most readily and willingly forgo such huge financial gains, by turning their backs on foreign countries and returning to India, because they believe that doing so is necessary for the sake of protecting their children.    

To drive away and/or to refuse protection to such persons of Indian origin/Indian citizens, when they are at their most vulnerable and utterly defenseless and who have sought refuge in India for themselves and their children for serious and compelling reasons, is not the hallmark of a great nation.  If India bows down to such foreign pressure and amends Indian laws, such as Sec. 361 of Indian Penal Code, Section 13 of the Code of Civil Procedure, several sections of the Hindu Minority and Guardianship Act, etc., in order to make child abduction even by one of the child’s parents an offence, India would be doing the greatest disservice towards people of Indian origin, who come back to India with their children, in the hope of finding peace, happiness and security, for themselves and for their children on Indian soil.

6.     Even contemplating drastic amendments to such important sections of Indian Laws, as referred to hereinabove, would be a daunting task - complicated and time-consuming.

It ought to also be understood and appreciated that change imposed from outside is not long-lasting, nor is it genuinely accepted nor should it be accepted under any circumstances.  Change, to be meaningful and effective, has to come from within. Public support and public approval are required in a democratic country, such as India, for considering such drastic amendments to existing laws.  To say that the Indian public at large should give approval to a law under which either one of the parents can be charged as an abductor of their own child, is to ask for the impossible.  Such drastic, foreign-induced amendments to laws touching upon the most personal matters in the lives of ordinary Indian citizens and people of Indian origin would face stiff opposition from all quarters in India, as well as from the well informed sections of the Indian diaspora abroad.  It would not be presumptuous to say that in case such drastic amendments were to be carried out without considering public opinion and without considering the ground reality in India, the same would not go down well even with ordinary Indians and there would be fear of large scale violation of these amended laws; causing unnecessary public unrest, which would certainly not bode well for India’s safety, security and future.

7.      Conclusion : Thus, seen from any angle whatsoever, and considering the Indian ground reality and the nature of Indian family traditions and family values, it is not in the interests of people of Indian origin and of Indian citizens, for India to sign the Hague Convention.  In fact, not only should India not become a signatory to the Hague Convention, but India should also not enter into any one-on-one arrangements or treaties with foreign countries for return of children of Indian origin/citizenship to such foreign countries.  It is eminently just, right, correct, proper and humane that each and every case regarding child custody and guardianship, when being agitated before Indian Courts, should be decided on a case-by-case basis by Indian Courts, without succumbing to any pressure from any quarter and keeping in mind only the welfare of the child in question.  Indian Courts have also been very protective of the rights of the non-custodial spouse, as regards, their rights to gain access to their children are concerned and so no injustice would be suffered even by spouses staying abroad at the hands of the Indian Courts, in so far as exercising their rights to access to their children are concerned.  Indian Courts are humane, competent and well-equipped to adjudicate upon delicate issues involving children, as demonstrated time and again by the plethora of judgments emanating from our various trial Courts, High Courts and our Apex Court on the issue of child custody and guardianship.  This is in direct contrast to foreign court judgments wherein the trend has been to safeguard the interests and rights of the agitating parent and their ‘equity’ in the child vs. the paramount welfare of the child, to the extreme detriment of the welfare of the child in many instances.  There is no need, no reason, no cause and no occasion for any foreign entity to impose alien ideas and values upon Indians, nor for the Indian government to succumb to pressure from anyone on this issue involving the welfare of children of Indian origin/citizenship.

We, therefore, strongly urge the Government of India to take the necessary steps and precaution to ensure that India continues to oppose undue pressure imposed by Western Governments and their diplomatic channels, especially that of the USA and UK, to coerce India to sign the Hague Convention on the Civil Aspects of International Child Abduction and should refuse to sign the same.  We further urge the Government of India to allow us, the supporters of this draft, a personal hearing on all issues related to the Hague Convention, some of which have been outlined above.

 

      

 

 



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