Plea Seeking Guidelines on International Parental Child Abduction: Hearing Progressing In Supreme Court

A Supreme Court Bench headed by Justice Rohinton Nariman on Tuesday continued the hearing of a petition seeking guidelines on the trend of international parental child abduction over custody disputes."Suppose both the mother and the father are happily residing in the US. The mother then decides to come to India to practice Yoga. The child is torn between his two parents and taken away from a happy home. So, just because the child is with the mom, it is supposed to satisfy his best interest?", asked Justice Rohinton Nariman on Tuesday.Prominent family lawyer Malvika Rajkotia, appearing as an intervenor in her personal capacity, had advanced, "It is a misrepresentation to say this is not a gender issue. In 99% of the cases, it is the mother who is the primary care-giver. The judgments of this court have been consistent on maternal preference. It is in the interest of the child to be with the mother. The connection which comes from birthing the child is not a random connection, even if it may sound so. The mother gives up agency over her body, her career in carrying and delivering the child! This agency has to be recognised" Justice Nariman described this as "an extremely extreme argument". "In all these cases, the mothers are fleeing a bad marriage. Not for career or to do Yoga", responded Ms. Rajkotia. "Suppose a father flees a bad marriage? Made bad by the woman on facts?", pressed Justice Nariman. "Fathers are well-entrenched in their ecosystems. broadly speaking, they have jobs...", Ms. Rajkotia sought to submit. "Not necessarily", interjected Justice Nariman. "In most cases, these are stay-at-home moms. But there could be exceptions...if she is going to Reykjavík to be the CEO of Pepsi, then it is not good for the child, where I don't know the language, where I am myself lost...Where the fleeing father is the primary care-giver, then the best interest of the child is to be with the father", agreed Ms. Rajkotia. "What you are saying may have been true 25 years ago. But we can't forget the fact that children are now increasingly becoming tools or instruments over whom spouses start negotiating...", remarked Justice Ravindra Bhat. In the earlier part of the hearing, reference was made by the petitioners to a 2010 decision of the Superior Court in Ontario, Canada, disallowing the motion by a father to remove the child from its jurisdiction and bring him to India to experience a Hindu festival. In doing so, the court had relied on the opinion of an expert in the field of international family law- "It was his (the expert's) 'very firm opinion' that notwithstanding any order of a court in Ontario, if the father retained the child, 'it would be exceedingly difficult and perhaps impossible for the mother to secure V's return home from India'. Any court proceeding in India to secure the child's return would be exceedingly slow...The mother would have to spend considerable money on legal fees to try and secure the child's return-or even have access to the child in India. India does not comply with international norms concerning the return of internationally abducted children 'and it is a justifiably well-recognised safe haven for international child abductors.' India has chosen not to accede to the Hague Convention. 'India's failure to sign the treaty constitutes a strong signal that it does not consider the abduction of children from other countries to be a serious matter'...""The father is not an abductor...the father would be better off if he just abducted the child rather than come to the court", quipped Justice V. Ramasubramanian, even as Justice Nariman exclaimed at the phrase "international child abductors" employed in the decision.This is a consideration by the Canadian court that if you send the child to India, it is a possibility...", observed Justice Bhat. "Whatever (mechanism) we set up, it will be all in the air...there are delays in courts...we have to instruct the lower court as to a 'summary' inquiry (while considering whether a child should be removed to the jurisdiction of the foreign court or not), otherwise there will be confusion", noted the judge.Next, on the petitioner's side, the expert evidence rendered in a 2014 British case, in response to the English family court's query 'what is the legal position in India if the mother (who had applied to bring the child to India for a holiday) does not return to the UK', was quoted- "Father would have to file an application for custody of children under the provision of Hindu Minority and Guardianship Act. The proceedings may take from 1 year to 2 year and likelihood of success cannot be predicted as it will be dependent on Court's fact finding to ascertain best interest and welfare of the children in deciding the custody rights.""In these cases, there is no amicus or independent counsel. The child's best interests are seen by the child's lawyer", remarked Justice Bhat. "'Best interest' of the child is a term of many uses, not just one", he...

Plea Seeking Guidelines on International Parental Child Abduction: Hearing Progressing In Supreme Court

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Plea Seeking Guidelines on International Parental Child Abduction: Hearing Progressing In Supreme Court

MEHAL JAIN

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