Open Access Research Article
“INDIA, INTER-COUNTRY PARENTAL CHILD REMOVAL AND THE LAW” BY ANIL MALHOTRA AND RANJIT MALHOTRA BY: SHOBHANA SANJAY SINGH, DR. SAPNA BANSAL & PROF. KARTHIAYANI
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Article Details
“INDIA, INTER-COUNTRY PARENTAL
CHILD REMOVAL AND THE LAW”
BY ANIL MALHOTRA AND RANJIT
MALHOTRA
AUTHORED BY:
SHOBHANA SANJAY SINGH
(LL.M
student, Symbiosis Law School, Pune)
CO-AUTHOR:
DR. SAPNA BANSAL
(Assistant
Professor, Symbiosis Law School, Pune),
CO-AUTHOR
2: PROF. KARTHIAYANI
A
(Assistant Professor, Symbiosis Law School, Pune)
The
Context and Background of the key theme:
The book examines the legal
challenges associated with international parental child abduction cases,
particularly in the context of India. The authors discuss how there is an
increasing number of Indians residing abroad and the resultant rise in
transnational family conflicts, which often manifest as child custody disputes
following separation or divorce. The authors emphasize India’s need to adopt
international legal frameworks like the ‘Hague Convention on International
Child Abduction to better address these issues.
This book makes a significant
contribution to comprehending the complexities of cross-border parental child
removal from an Indian viewpoint and lays the groundwork for exploring the potential
in such instances. Also, it discusses how the Indian legal system is currently
dealing with such cases the challenges faced by the left-behind parents, and
the impact on child as well.
INTRODUCTION
The authors have eloquently presented
the legal aspect of inter-country parental child removal in this book, by
shedding light on the complex challenges faced by parents and children in a
situation where there is no legal remedy for a child taken away from one
country to another without the consent of another. In such cases of
inter-country parental child removal, the legal system can be manipulated by
one parent to gain an advantage over the other, leading to prolonged and
emotional tussle in custody battles. The lack of consistency in international
child custody decisions can result in harm to the child’s well-being. Then what
about the left behind parents well being? However, while their analysis illustrates
various facets of this kind of complex issue, it fails to critically engage
with the implications of cultural relatives in the judicial processes spanning
diverse legal systems.
This is significant as it underpins
the very fabric of international child abduction jurisprudence. Furthermore,
the author's approach to the international legal framework oversimplifies the
intricate balance between parental rights and the welfare principle, often portraying
the neglect of the nuanced realities faced by binational families. This review
seeks to delve deeper into critical aspects, offering a more granular
understanding than the current literature appears.
The review begins with Chapter I Inter-Parental
Child Removal- a bird’s eye view with 10 subchapters containing brief
perspectives of the issue and different dimensions of the problems in the Indian
legal context. Chapter II Inter-Parental
Child Removal Law in India and Chapter III To Return or Not to Return:
Hague Convention vs. Non-Convention Countries cover various issues relating
to the implications of foreign court judgements and possible safeguards to
ensure the return of children to their foreign homes. The analytical
complication included the 16 Supreme Court Judgements on the subject matter,
along with a few key decisions laid down.
Chapter I Inter-Parental Child
Removal- A Bird’s Eye View
A. Pulling children across different
Continents provides content reflecting a concern regarding inter-parental child
abduction in India. When parents separate and settle on different continents,
child custody disputes can become an international issue. Now, taking India’s
largest population in the world, the scope of such conflict is considerable
under such circumstances. The typical legal remedy involved is filing a Habeas
Corpus Writ with the High Court or the Supreme Court seeking the return of the
child based on a foreign court order or due to the violation of parental
rights.
B. Indian Delemma on Inter-Parental
Child Removal outlines the increasing complexity of family and legal matters
stemming from the ease of international travel in today’s globalized world.
Children worldwide are being raised in an environment filled with both
opportunities and risks, including the potential danger of getting caught up in
cross-border custody disputes. Due to the lack of consistent legal resolutions
across different countries, parents involved in acrimonious marital disputes
may unilaterally choose to relocate their children across international borders
without proper legal consent from courts or the other parties. This often leads
to conflicting legal proceedings in various countries.
C. Signing the Hague Convention for
children’s sake, the Supreme Court considers a foreign court's custody order
but does not solely rely on it. Unlike any other country Indian courts face difficulties
in adapting to foreign court orders due to differing legal systems and
jurisdictional boundaries, it also encompasses the evolution of custody
disputes due to the growing instances of children being removed across national
borders by one parent without the consent of the other, This reflects a two-way
issue, with children being brought to and taken from India, highlighting a
significant gap in the legal system.
D. No Voice for the Child, raise
emphasizes the necessity for more effective legal frameworks that prioritise
the well-being of children and aim to address the inherent complexities in
cross-border custody disputes. There are concerns about children’s rights
within the legal system and the global need for sensitive handling of
international custody matters.
E. The Inter-parental child removal is the
dark side of the moon, this phrase does lead to a myriad of legal, emotional
and psychological issues for all the parties involved, especially the child. Fresh
Directions in a Custody battle after 2011, has laid down principles and created
a precedent which is bound to have a wide-ranging impact. But no quick or fixed
solution for the same.
F. The need for uniform law, as
inter-state child abduction, is a crime in India but inter-country has been not
defined in any legislation.
G. The three specific areas in the realm
of divorce law are of main concern to Non-Resident Indians (Page 25) for
irretrievable breakdown of marriage under various Acts.
H. The content also points out that the
law applied in these situations is usually that of the country where the child
is currently located. For the parent who is left behind seeking legal recourse
involves navigating the foreign country's legal system, which can be
complicated by visa issues or substantial financial costs and unfamiliarity
with local legal procedures. Without any governing international legal
framework or treaty. This gap in the international legal system regarding child
abduction highlights the distress and obstacles faced by aggrieved parents.
I.
‘A
bird’s eye view’ delves into legal challenges surrounding the international and
inter-parental abduction of children within the context of India. The report
discussed the law commission’s involvement after receiving a reference from
Panjab and Haryana High Court to examine various issues related to abductions
in family disputes.
J. It also promotes India’s accession to
the Hague Convention as a means to restore stability in cases of international
country of residence. The document argues that this approach would enable
courts more familiar with the child’s living conditions and environment to make
informed decisions regarding their welfare. This review emphasizes the crucial
need for India to establish a statutory framework aligned with international
standards to protect the best interests of children involved in cross-border
custody disputes.
Chapter II Inter-Parental Child
Removal Law in India
A. The introduction outlines how
increased global connectivity and moblility have led to a rise in international
relationships and subsquently, cross border family disputes. It emphasizes the
heightened risk of international child abduction in such scenarios. Child
removal is not clearly defined in Indian legislation but conventionally
understood as moving a child away without the other parent;s consent or legal
authorization, imparting thr custodial rights of that parent. Article 3 of the
Convention on the civil aspects of international child abduction signed at the
Hague Conference 1980 has defined removal or retention wronful.
B. There are global solutions and
remedies as the authors brings to the notice about the Hague Convention on
Civil Aspects of International Child Abduction. In which the objects of the
convention are:
i.
To secure the prompt return of children wrongfully removed to or retined
in any contrscting state; and
ii.
to ensure that rights of custody ad of access under the law of one
contracting state are effectively repected in the other contracting states.
C. Various cases laws have be dealt
under this chapter and factors on which court has granted custody order like
visiting rights cannot be denied, orders relating to custody of children are
interlocutory in nature, Habeas Corpus can also be issued by a person who is
not a citizen of India, Welfare of the children is the paramount consideration
in deciding custody matters.
D. The authors have provided with
suggested possible steps which can be adopted by foregin courts as conditions
to secure the return of children visiting India on temporary movement form
their foregin homes.
i.
Noterised Agreement between parties before leaving the foregin
jurisdiction.
ii.
Placing of Noterised Agreement before foregin court and its Embassy in
India.
iii.
Docunments of Indian Guarantors be furnished to the Foregin Embassy in
India.
iv.
Caveats be filed before Guardian Judge/High Court in India.
v.
Advance Prior Intimation/Confirmation form Foregin Embassy in India.
vi.
Advanced Interimation to Indian Embassy/Consular Office in the Foregin
Jurisdiction.
E. The authors have also about the
effectiveness of any such Safeguards/Safety Measures.
Chapter III To Return or Not to
return: Hague Convention vs. Non-Convention Countries
Malhotra points out that
international mobility has increased, leading to a rise in rekationships
between individuals from different cultural and national backgrounds. This, in
turn, has lead to a new set of risks for children caught in cross-border disputes
following the breakdown of a relationship. It also highlights the issue of how
child removal is defined and the nuances of what constitutes parental child
abduction. Without a clear legal defination, actions may vary between being
seen as abduction or as a custodial right by different legal systems. Overall,
it provides a thorough analysis of the challenges faced by families and legal
systems in addressing international child abduction, particularly emphasizing
the plight of child and parents in non-convention countries.
CONCLUSION
In conclusion, the book "India,
Inter-Country Parental Child Removal and the Law" by Anil Malhotra and
Ranjit Malhotra provides a comprehensive analysis of the legal issues
surrounding inter-country parental child removal in India, highlighting the
need for a more balanced approach that takes into account the best interests of
the child and the rights of both parents. Future research in this field could
explore the impact of international treaties and conventions on inter-country
parental child removal in India and the role of alternative dispute resolution
mechanisms in resolving these complex legal issues. Additionally, examination
the cultural and social factors that influence inter-country parental child
removal in India could provide valuable insights for policymakers and legal
professionals.
Article Information
“INDIA, INTER-COUNTRY PARENTAL CHILD REMOVAL AND THE LAW” BY ANIL MALHOTRA AND RANJIT MALHOTRA BY: SHOBHANA SANJAY SINGH, DR. SAPNA BANSAL & PROF. KARTHIAYANI
Authors: SHOBHANA SANJAY SINGH, DR. SAPNA BANSAL, PROF. KARTHIAYANI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/27
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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