In a globalized, interconnect world, the laws of one nation impact those living in foreign nations. Today India is the Top 3 destination of international parental child abductions from the U.S. and U.K.
India is widely referred to as a “safe haven” for abducting parents who take advantage of a favorable Indian judicial system, and face no consequences for their wrongdoing;
Parental child abduction is not recognized as a crime in India, judges decide abduction cases on arbitrary basis, wrongfully asserting jurisdiction on foreign nationals and Non-Resident Indians(NRIs);
Indian courts choose to re-litigate custody decisions already made in the best interest of the child by courts where the child resided prior to the abduction, children are rarely returned to their countries of habitual residence;
Cultural and gender bias are pervasive in Indian society, the Judiciary isn’t immune. Abducting mothers commonly file false cases of domestic violence (DV) and dowry (IPC 498A) against their husbands and in-laws, which cause severe hardships, including incarceration of American victims of IPCA. Many Indian Judges and victims have described the misuse of these laws as ” judicial terrorism “;
Litigants in Indian Courts face long and costly delays, left behind parents rarely get access to their children, thus children are systematically alienated from their left behind parent.
“Nonetheless, for many reasons India is generally a safe haven for child abductors who stay in India and do not leave. This is firstly because India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and because no Indian legislation sets forth helpful law on this issue. Furthermore, the court system in India is extremely slow so that an abductor has ample time to create “facts on the ground” in terms of getting the child sufficiently settled into life in India as to justify an Indian court in ultimately deeming that it is best to keep the child in India.
The law in India was previously settled that foreign children taken by a parent to India without the consent of the other parent would normally be returned to their country of residence or nationality. “
India does not adhere to any protocols with respect to international parental child abduction. In 2017, India demonstrated a pattern of non-compliance. Specifically, the competent authorities in India persistently failed to work with the Department of State to resolve abduction cases,” the report said.
“As a result of this failure, 90 per cent of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for one year and ten months,” it said.
Justice delayed is …
“Judicial action in custody cases in India has been slow, and Indian courts tend to default to granting custody to the taking parent. The lack of clear legal procedures for addressing international parental child abduction cases under Indian law makes it difficult for India to resolve these cases,” it said.
India also disregards the Guardians and Wards Act of India, 1890, which states that when a child is abducted to a foreign country or even to another district, custody should be decided only by the district where the child was “habitually resident” at the time of abduction. This law is not implemented by Indian courts in these international cases, parent advocates say, most likely because of all the money to be made from warring NRI/ U.S. citizen parents.
“The reality is many abducting parents opt for the criminal approach because India affords them protection. The victim: a hapless child.”
Left-behind parents also allege that another important issue they have to deal in India courts is gender bias — affecting both women and men. While the left-behind fathers are almost always accused of domestic violence, abuse, neglect, dowry-related torture, the left-behind mothers are looked at like they were villains. But the abductor mother is favored, they say, because of the way the laws are structured. They also say that a child being with the mother is always seen as an advantage. “There is the whole ‘abla nari’ (weaker sex) concept that works well in favor of women who are abductors” Rahman said.
Kunthur concurs, saying Indian laws and the Indian Ministry of Women’s Affairs “are encouraging [abductor] women and creating a safe haven for them.” He said more women flee to India with their children than do men, but there is no State Department or Indian data to corroborate that.
Many observers say this is probably one reason why India has not signed the Hague Abduction Convention, a treaty that numerous countries, including the U.S., have signed. According to a January 2014 report in the Economic Times, India’s Ministry of Law and Justice believes that “if India signs the pact, it would put Indian women married to non-resident Indians or foreign nationals to disadvantage in cases of divorces and legal battles over the custody of children.”
Rahman said India’s focus on womens’ abuse instead of the children’s abuse contradicts studies by child experts as well as India’s own legal commitments under the UN Convention on the Rights of Children, which requires signatories like India to prevent child abductions from their home countries and ensure children are not denied the right to be returned there.
* IPCA is child abuse and a crime against children, perpetrated by a parent, not a stranger;
* Children are deprived of the love and affection of the parent left behind, often subjected to sustained mental manipulation to believe the parent left behind is the cause of their problems, and robbed of their sense of security, leading to parental alienation and other consequences;
* Taking parent resorts to “forum shopping” to thwart laws of the child’s home country. Cases often take years to resolve, victimized children and families often suffer emotion, psychological and financial trauma.
Victims often struggle to get the support they need from law enforcement, government officials and society at large, who fail to recognize IPCA as a crime.