Factoring the ‘best interest of the child’ and safety of the mother in a foreign land in an abusive relationship, India must not sign the Hague Convention on International Child Abduction
The phenomena of NRI marriages brought with it the inevitable problems of ‘limping marriages’, where a person is considered married in one country and divorced in another. When faced with domestic violence, a woman will pick up her children and go back to her home country where she has family to support her. The husband in the meantime gets an ex-party decree of divorce and the custody of the children. This makes the mother an ‘abductor’ of her own children in the eyes of a foreign court. . But is she an abductor under the Indian law? Not yet, but if India’s proposed move to sign the Hague Convention goes through she will not only become a child abductor but will also be denied the protection of the Indian courts which she now has.
The signing of the Hague Convention on International Child Abduction will enable the government to force children away from their mothers and immediate family, and be sent to a foreign country without considering whether this is in the ‘best interest of the child’. This thoughtless move flies in the face of the professed policy of the Indian government to empower women. Today they at least have the protection of Indian courts, but if the Hague Convention becomes law, they will lose that protection.
Many mothers, who flee to India with their children, often are either abandoned or face domestic violence. The convention shows no recognition of the role domestic violence plays in compelling a mother to go back to her country of origin. If India adheres to the provisions of the convention, the woman, just to be with her children, will be forced to go back to a violent relationship.
Japan did not sign the convention till 2013. The decision to sign the convention with reservations required developments in their domestic laws. The courts in Japan are obliged to consider whether the abuse towards the parents who ‘abduct’ their children could psychologically harm them upon returning to the marriage. Japan has shown awareness of domestic violence while signing the convention through the Act on Implementation of Convention on the Civil Aspects of International Child Abduction.
In a battle for custody of minor children, the courts in India look at what is in the ‘best interest of the child’. In a transnational marriage, the courts will not only look at the fact that a foreign court has given custody to the father but also whether it is in the interest of the child to go back to the father when the mother is in India. The inevitable argument of the father is that he has a higher standard of living; that the child will have a better life. Some get carried away by such arguments but the courts look at all other factors, including the fact that the mother is unable to return because of the violence she faces and the fact that the child has a settled life in India. This is a healthy approach which does not confuse economic comforts alone with well-being.
The argument in favour of signing the convention has been that it will benefit mothers as well when fathers abduct children. However this disguises the fact that most times it is mothers who take their children out of a foreign country when faced with domestic violence.
No doubt there are cases where the parent residing in the foreign country has legitimate custody claims. However, by signing the Hague Convention, we will be compelled to recognise a foreign judgment regardless of the justness of the decision on custody under Indian law, or whether it was delivered ex-parte. Today an Indian court will not send a child back to a foreign land unless it is in the interest of the child.
In 2016, the ministry of women and child development took the decision to not sign giving reasons such as the practical reality of child-custody claims by the NRI parent against the Indian-resident parent. The reason for a possible change in stand is not yet known to the public. It could possibly be the lobbying by rich NRI husbands, which has ultimately succeeded.
This is not an arrangement that India should agree to keeping in mind the practical realities, such as the prejudice in foreign courts, and plight of mothers returning to India with their children. The child should have access to both parents, but not at the expense of the safety of the mother who is forced to leave. Efforts must be made to negotiate with the foreign government on a case-to-case basis, and not simply label a parent as a child ‘abductor’. This is possible only if both the parties want the ‘best interest of the child’ and not the mere physical location.
Indira Jaising is a senior advocate, Supreme Court