Child Abduction by Parents: Laws on Violation of Child Custody

In India, child abduction or separating a child by one parent from another is not identified as a criminal offence. In general, any "taking, retention or concealment of a child or children by a parent or other family member, or his or her agent, in derogation of the custody or visitation rights of another parent, family member or legal custodian'' is considered as child abduction or parental kidnapping.

A parent who does not have legal custody of a child can be convicted of such kidnapping.

While assessing this situation, the court looks into the following relevant factors:

• The legal status of the parent who has ‘abducted’ the child (whether the said parent has legal custody of the child or not).
• Existence of any court orders regarding custody of the child.
• The intent with which the child was taken away by the ‘abducting parent’

The following elements must be fulfilled by an aggrieved parent to convict the ‘abducting parent’ of parental kidnapping:

• Maliciously taking away, enticing away, keeping, withholding, or concealing a child from their lawful custodian (who may be the other parent).
• The child must be under the age of 18.
• The ‘abducting parent’ did not have the right to custody of the child.
• Intention of detaining the child from their lawful custodian.

• The Courts may order immediate restoration of the child if there is a possibility of immediate and irremediable harm to the child.
• Even if a child gets adjusted in a country after being moved from one country to another, and their continuance in the said country proves to be harmful, the Court may order repatriation for the child’s well-being.
• In Prateek Gupta v. Shilpi Gupta, the Court held the welfare of the child must prevail as foremost overriding consideration, while pre-existing foreign court’s order must be taken as one of the factors for deciding the question of custody. Applicability of the doctrine of “comity of courts” would depend upon various facts and circumstances, keeping in mind the welfare of the child.

 

The Hague Convention on the Civil Aspects of International Child Abduction, 1980 (herein referred as "Convention") is a multilateral treaty seeking to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return and to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states. India is not a signatory to this Convention.

In order for the Convention to be applied, there are two conditions which must be concurrently met:

• The states involved must be parties to the Convention;
• The child in question should not be older than 16 years old.

The return proceeding set by the Convention may be initiated with an application in the state where the child's habitual residence rests ("Requesting State") or in the state where the child is being requested ("Requested State").

As per Section 6(a) of the Hindu Minority and Guardianship Act, 1956, a father is the natural guardian of the child, and after him, the mother would have rights over the child. However, for a minor who has not completed the age of five years, their custody would ‘ordinarily’ be with the mother. In Gita Hariharan v Reserve Bank of India, the Supreme Court discussed the Constitutional validity of this provision stating that it violated Article 14 of the Constitution. The Supreme Court clarified that the word ‘after’ in the above Section did not mean that the mother was not entitled to being the natural guardian of the child during the lifetime of the father; it meant that the mother steps in “in the absence of the father”. Absence could mean “temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise”.

• They are legally married and there is no court order of custody.
• They are divorced and the parent taking away the child has the sole physical custody of the child.

 

2. When does it become illegal for a parent to take away their child from the other parent?

• Physical custody is different from legal custody. If one parent has the sole physical custody of their child, it becomes illegal for the other parent to take them away.
• After the visitation time, the parent who is not in the custody of their child must always bring the child back to the other parent who is in custody. The other parent must obey the parenting time order. In an event where they fail to do so, it is treated as a violation of the Court’s custody order.
• Because of the absence of proper laws on cases of “abduction” by one parent, such cases are treated as cases of custody battle in India. Guardianship Petition can be filed under Section 9 of Guardians and Wards Act, 1890

 

In a habeas corpus petition, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person. The next question to be considered by the High Court would be whether an order passed by the foreign court, directing the person having custody to produce the child before it, would render the custody of the minor unlawful? On mere grounds that such an order was passed by a foreign court, the custody of the minor would not become unlawful. An order from a foreign court must yield to the welfare of the child. Which is why the remedy of a writ of habeas corpus cannot be used for enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court.

The fact that the other parent had already approached the foreign court or was successful in getting an order from the foreign court for the production of the child, cannot be a decisive factor. Similarly, the parent having custody of the minor has not resorted to any substantive proceeding for custody of the child, cannot whittle down the overarching principle of the best interests and welfare of the child to be considered by the Court.

In Rajesh K Gupta v. Ram Gopal Agarwala it was held that a Habeas Corpus petition can be filed even by a person who is not a citizen of India or where the child has been taken to from India (habitual residence).

In Lahari Sakhamuri v. Sobhan Kodali, it was held that the Family Courts in India would not have any jurisdiction over custody matters of minor children who are foreign citizens and do not ordinarily reside within the jurisdiction of the Family Court. In Elizabeth Dinshaw v. Arvand M. Dinshaw, it was held that it is the duty of courts to see that a parent doing wrong by removing children out of the country does not gain any advantage of their wrongdoing.

The aggrieved parent has the option of opting for mediation services as well. Mediation is voluntary and both parents must agree to participate. Additionally, in different states in India, mediation is also available as an alternative to litigation for couples interested in attempting to reach a voluntary agreement.    

India can easily be termed as a ‘safe haven’ for child abductors who stay in India and do not leave since India is not a party to the Hague Convention and there is no legislation which sets forth helpful law on this issue. Parental kidnapping remains a complex and low-priority area of law. Conflicting civil custody orders and the involvement of courts from several jurisdictions frequently complicate parental kidnapping cases. An understanding of psychological, social and legal implications and knowledge of civil statutes are essential to well-reasoned judicial decisions. The eventful agreement about custody may often be a reflection of the parents’ interests, rather than the child’s. The issue in a child custody dispute is what will become of the child, but ordinarily, the child is not a true participant in the process. To focus on the child rights in case of parental conflict is a proactive step towards looking into this special situation demanding a specific articulation of child rights.