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Domestic violence and the Hague Abduction Convention: the Indian perspective

  • Editorial Note
  • Published:
Indian Journal of International Law

Abstract

This note seeks to point out India’s objections for acceding to the 1980 Hague Convention on International Child Abduction. It highlights the drawbacks in the now recommended draft of The Protection of Children (Inter-country Removal and Retention) Bill, 2016. Domestic violence is one of the major causes of parental abductions as seen from the approach of the Indian judiciary. Indeed, the principle of the paramount welfare of child overrides the personal rights of either parent for custody of child. The note rejects the Indian Law Commission’s recommendation of sending the mother to jail if the mother had justifiable grounds to leave the husband and the foreign country. India’s sovereign rights under Section 13 CPC/44 A CPC is not subject to foreign custody/ return orders. India’s accession to The Hague Convention acts as an estoppel to its sovereign rights under the above mentioned provisions of the CPC.

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Notes

  1. Report No. 263 (2016).

  2. Section 26 of the Hindu Marriage Act, 1955, stipulates that a court can pass orders and make such provisions in the decree with respect to the custody, maintenance and education of minor children upon an application.

    Section 4(a) of the Hindu Minority and Guardianship Act,1956, defines a minor to mean a person who has not reached the age of 18 years. Under the Act, the custody of a child is given to any person, be it the child’s natural parents or guardian (appointed by the Court) with the prime importance given to the welfare of the child. The landmark case in this context is Gita Hariharan v. Reserve Bank of India (1999) 2 SCC 228. Indian law does not define or even mention parental removal of the child.

  3. (1998) 1 SCC 112. This case arose out of proceedings under the Guardian and Wards Act (1890).

  4. (2000) 3 SCC 14. See Lakshmi Jambholkar, India and the 1980 Hague Convention on Civil Aspects of International Child Abduction, 51 IJIL (2011) 85–96 for more details.

  5. AIR 2011 S.C. 1952.

  6. Ibid.

  7. (1998) 1 SCC 112 at 126.

  8. For example, provisions that carry out the objectives of the Convention as mentioned below amongst others: The Hague Abduction Convention states the objects of the Convention in: Article 1a – to secure the prompt return of children wrongfully removed to or retained in any Contracting State ; and Article 1b – to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. Article 2 – Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available. Article 17 – the sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested state shall not bear ground for refusing to return a child. Rohna Schuz observes ‘Once a Convention comes into force each state is obliged to return children. This requirement to return is mandatory subject to a few narrowly drawn exceptions and not subject to the discretion of the court or to the examinations of the best interests of the child in a particular case.’ Rohna Schuz, The Hague Child Abduction Convention: A Critical Analysis (Hart Publishing, Oxford, 2013) 13.

  9. Report 263 at [5.1].

  10. Report 263 [8.2].

  11. However, it may be pointed out that the expressions, ‘Abductor, Child abduction, Parental Removal/Retention’ are not defined in the Draft Bill and the Hague Convention on Civil Aspects of International Child Abduction (1980).

  12. Indian Law Commission Report, No. 263 [5.2].

  13. Ibid [5.3]. See also for similar views, Noah L Browne, Note, Relevance and Fairness: Protecting the Rights of Domestic Violence Victims and Left-Behind Fathers under the Hague Convention on Civil Aspects of International Child Abduction, 60 Duke LJ (2011) 1193, 1203.

  14. Samako Yamaguchi v TarynLyndhorst, ‘Domestic Violence and Implementation of the Hague Convention on Civil Aspects of International Child Abduction: Japan & US Policy.’ The authors observe that the U.S. Hague implementing legislation (ICARA) does not address domestic violence at all so respondents in the United States have generally been unsuccessful in having domestic violence recognized as a reason to deny the return of their children to an abusive spouse. As a result, the U.S. law is more likely to ignore the legitimate safety risks to the child and the mother caused by returning them to their legally determined habitual residence. See, 17(4) J Intl Women’s Stud 24, 35 [16–30].

  15. Korowin v Korowin, No.138036, Judgment of 23 February 1992, quoted in Linda Silverman, Hague International Child Abduction Convention: A Progress Report, 57(3) L & Contemporary Problems (1994) 238 [210].

  16. See in this context, Shani M King, The Hague Convention and Domestic Violence: Proposals for Balancing the Policies of Discouraging Child Abduction and Protecting Children from Domestic Violence, 47(2) Family L Q (2013) 299.

  17. Brian Quiller, The New Face of International Child Abduction, 49 Texas Intl L J (2014) 621 [627].

  18. See for details, Merle H Weiner, International Child Abduction and the Escape from Domestic Violence, 69 Fordham L Rev (2000) 631 [593].

  19. In re Shamee, Judgment of March 12,1993, Trib.gr.inst.de Colmar 2d(Fr) available on Hilton BBS, as quoted in Linda Silberman, Hague International Child Abduction Convention: A Progress Report, 57(3) L & Contemporary Problems (1994) 239 [210].

  20. Why India should not sign the Hague Convention on Civil Aspects of International Child Abduction <http://www.change.org/p/dkute-why-india-should-not-sign-the-hague-Convention-on-parental-child-abduction>.

  21. Three areas – Foreign Penal, Revenue and public policy – are excluded from Private International Law.

  22. Universal acceptance of the Convention is not always possible. Cultural deviations are not unique to the Child Abduction Convention. Countries with Islamic influence do not conceive of the family as constituted by two equal parents, with equal rights of access to or influence over their children. These countries accept a theological absolute of the male as unchallenged monarch over the family. Consequently, the “best interests of the child” are defined synonymously with the decisions of the father, and it is difficult to conceive of an Islamic Court ordering a father to return a child when a mother objects to a move to an Islamic country. Silberman, supra note 19, 266 [209].

  23. Schuz, supra note 8, at 61.

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  1. Member, Editorial Board, Indian Journal of International Law; Professor Emeritus, National Law University, Jodhpur, Rajasthan, India

    Lakshmi Jambholkar

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  1. Lakshmi Jambholkar
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Correspondence to Lakshmi Jambholkar.

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Jambholkar, L. Domestic violence and the Hague Abduction Convention: the Indian perspective. Indian Journal of International Law 57, 179–188 (2017). https://doi.org/10.1007/s40901-017-0066-3

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