In its very first report, the 21st Law Commission of India has recommended a jail term of one year for any parent or family member who is found guilty of wrongfully retaining or removing a child from the custody of the other parent.
Law Commission Chairman Justice B S Chauhan submitted the report on ‘The Protection of Children (Inter-Country Removal and Retention) Bill, 2016’ to Union Law Minister Ravi Shankar Prasad on Monday.
The report fine-tunes the recently drafted Bill of the Women and Child Development Ministry on the same issue, and adds the provision for punitive measures. A jail term of three months has also been suggested for those who willingly conceal or misrepresent any information on the location of the child.
The draft Bill would be applicable to all such cases of inter-country “parental abductions” where a child, less than 16 years old, is taken away from India by one of the parents without the consent of the other. The Law Commission cites the example of the UK, which takes an extremely stringent view in such cases and makes the offence punishable with imprisonment up to seven years.
The Law Commission only makes an exception in cases where the parent, involved in the alleged wrongful removal or retention, did so in an attempt to escape from any act of domestic violence. “The woman must not be put in a situation where she has to make the impossible choice between her children and putting up with abusive relationship in a foreign country,” it notes.
The WCD Ministry’s Bill makes an exception only in cases where the child has been taken away with consent or where returning the child poses some kind of grave risk to him or her.
The Bill would be a precursor to India becoming a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (1980). The Hague Convention is a multilateral treaty whereby the contracting states will have to cooperate with each other in expeditiously sending back the runaway parent and the child to the country of the child’s ‘habitual residence’. However, a return order would not decide the issue of custody but would only ensure that the custody battle is settled in the jurisdiction of the country where the child has lived for most part of his life.
Sources in the WCD Ministry told The Indian Express that Union WCD Minister Maneka Gandhi is still undecided as to whether India should accede to the Hague Convention, as was recommended by a March 2009 Law Commission report. This is because in majority of the cases, the runaway parent is a woman.
“Joining the Convention would mean that women of foreign nationalities who run away with children can be brought back from contracting states. But such cases are far lesser than cases where Indian women come back to the country. Being a signatory, India too would have to ensure that Indian citizens and their children, who have returned from any of the contracting states, will have to be sent back for the matter to be settled legally in that country,” said ministry sources.
Data cited in the Law Commission’s report states that 68 per cent of the parents who take away the children globally were mothers, with 85 per cent of these mothers being the primary caregivers of their children.
The Commission has said that the parent who has retained the child in India must bear all the costs incurred by the government-appointed central authority in legal proceedings as well as in locating and returning the child. The report mentions that more than “three crore Indians live in foreign countries, having cross border matrimonial relationships”.