After much deliberation, the Union government has decided that India will not ratify the Hague Convention on the Civil Aspects of International Child Abduction (1980). Signing the multilateral treaty would have meant that the government will have to send back women, who have escaped bad marriages abroad and brought their child along with them to India, back to the country of the father’s residence.
The decision was taken by Women and Child Development Minister Maneka Gandhi and has been agreed to by the Ministry of External Affairs. The government’s view is contrary to the recommendations given by the Law Commission, which endorsed acceding to the Hague convention. It has even suggested a jail term of one year for a parent of foreign origin living in India who takes away the child without the consent of the other unless it is a case of domestic violence.
“We found that there are more cases of Indian women who return to the safety of their homes in India after escaping a bad marriage. Cases of women who are foreign citizens, married to Indian men, going away with their children are far fewer. Hence signing the Hague Convention would be to the disadvantage of Indian women. Also, a majority of such cases pertain to women instead of men running away,” said a WCD official. The Law Commission’s report too cites data showing that 68 per cent of the parents who took their child away were mothers, where 85 per cent of these mothers are the primary caregivers of their children across the globe.
According to the WCD Ministry, the matter of ratifying the Hague Convention was taken up following lobbying by groups in the United States and certain European nations. The pressure from the developed countries to get India to be a signatory to the treaty was based on gender equality and the idea that the father should have equal rights to the child as the mother. “But that doesn’t apply here given the reality of Indian marriages,” said the official.
Ministry officials point out that in some of the cases before them, husbands have procured orders from US courts which could translate into the woman being arrested the minute she goes back to the foreign country. “If we ratify this, we would have to send the woman and the child back immediately as the act of escaping with the child is treated as abduction. This strips them of the protective cover they have in their own country,” said the official. Since India is not a signatory, it is presently the father who has to come to the country to take legal recourse in Indian courts if he wants to claim custody of the child.
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The Law Commission has in its March 2009 report titled ‘Need to accede to the Hague Convention on the Civil Aspects of International Child Abduction 2009’ advised that the Union government should be a signatory to the treaty. This year, the WCD Ministry issued its draft Civil Aspect of International Child Abduction Bill, 2016. The present Law Commission took up the matter of fine-tuning the draft after the Punjab High Court, while hearing a related matter, observed that there is a need to examine “inter-country, inter-parental child removal”.