NRIs Approach Supreme Court Over Parental Abduction Cases

A group of United States-based NRI parents has approached the Supreme Court of India to direct to the central government for framing a law to handle cases of parental abduction. The rise in the number of cases where a parent living in a foreign country takes the child back to India without notifying the other parent prompted the group to seek the apex court’s intervention on Dec. 1.

The group’s advocates Jayant Bhushan and Shadan Farasat appeared before a bench of Justices RF Nariman and Navin Sinha, and said that the 1980 International Convention on Child Abduction, which mandates that a child should be immediately restored to his or her country of habitual residence in case of such abduction, has not been ratified by India, the Times of India reported.

They also contented that India does not have a law to deal with such cases, and that it was important that the bench intervenes and sets guidelines so that child abduction cases involving NRI parents are heard by one competent court.

After consenting to hear the plea of the group, the bench issued notice to the government, asking it to file its response within eight weeks.

The petition points out that such cases often take years to reach resolution, which leads to children and families suffering from emotional and financial trauma. “There have been cases where the left-behind parent does not even know where the child is staying in India. Some parents vanish with the child without disclosing an address to the other parent. This is a traumatic experience for the other parent who does not know the whereabouts of his/her child. Despite the alarming rate of child abductions, neither the US nor India has put in place a mechanism to remedy the human suffering,” the petition said.

The group of NRIs has contended that despite the Law Commission’s recommendations, the government is not taking steps to ratify the 1980 Convention. “There was lack of clear guidelines on the issue of jurisdiction and procedural aspects pertaining to international parental child abduction cases which were being filed by estranged couples both in India and the country of their residence, resulting in simultaneous proceedings in two different courts,” the petition added.

The 1980 International Convention on Child Abduction provides for a legal mechanism where countries can work on these cases together. The convention requires that a central authority be formed, which is then supposed to help locate abducted children, encourage amicable solutions to parental abduction cases and process requests for return of children within six weeks of filing an application.

“Despite several pleas, Indian law does not even recognize international parental child abduction as a legal issue, leave alone a crime. In India, there is no legislation or guidelines by the government to deal with such cases and matters of custody have so far been left largely to be determined by the courts. There has been no uniform policy followed by the courts, which tends to treat the issue of child removal as a custody dispute between parents. This is clearly in contravention of India’s international obligations,” added the petition.

International Parental Child Abduction (IPCA) is the illegal removal of children from their home country by a parent to a foreign country or the illegal retention of children in a foreign country without the other parent’s consent or a court order from the jurisdiction where the children habitually reside.