Introduction
Children are described as the pillar of a nation’s future and in the words of Nelson Mandela “there can be no keener revelation of a society’s soul than the way it treats its children”.[1] It is however children who are most vulnerable to being the victims of different crimes on account of their fragile minds which haven’t yet grasped the complexities of the world they live in. One of them is abduction, which is the action of forcible moving someone against their will from one place to another. While the laws of our country provide various provisions in place against this offense within our borders, the force of law weakens once the act is taken outside our borders as not every country can be compelled to abide by international law. As daunting as the situation may seem, remedies do exist, the study of which shall be presented below.
Reasons for child abduction
Two major reasons come to mind when it comes to cross-border child abduction. Firstly, child trafficking, and secondly, parental abduction where one parent takes their child away to another country on account of differences with their spouse. In the latter, it is either a woman fleeing situations of domestic violence and seeking to return to their home country in hopes of a better life for themselves and their children or vindictive fathers taking a child away from the custody of his mother in to assert their authority. The child thus has very little control over his own life, which makes it very important for the law to step in and pave way for measures which prioritize the child’s welfare.
Provisions in Indian Law
Sections 359 to 369 of the IPC have provisions relating to kidnapping and abduction. Section 359 describes kidnapping to fall under two heads, kidnapping from India, and kidnapping from lawful guardianship[2]. These two scenarios are further substantiated in Section 360 and Section 361 of the IPC.
Section 360-This section of the IPC relates to taking away a person forcefully beyond the limits of India. A person would be said to be guilty of kidnapping a person from India if they do the said act without the consent of the person so kidnapped or the consent of a person with the legal authority to consent on their behalf.[3]
Section 361 of the IPC– This section substantiates what it means to kidnap a person from their lawful guardian. A person would be guilty of committing this offense if they “entice under the age of sixteen years a male or under the age of eighteen years a female or a person of unsound mind against the consent of their lawful guardian, out of their lawful guardianship”.[4]
India and The Hague Convention
The Hague Convention on the Civil Aspects of International Child Abduction was introduced by the United Nations in 1980. The purpose of this convention was to ensure the return of an abducted child to his or her lawful guardian. This convention has 101 signatories so far. If a child is abducted and carried to a signatory country, then the laws of that particular country concerning this offence shall be implemented in returning the child.[5] In the case of non-signatory countries, however, the situation would be more challenging. While the Hague Convention was established for a noble purpose, it does create problems for women who take the child away from the guardianship of the father to escape domestic violence and ensure that their child grows up in a healthy environment. It is on account of this factor that India chose to be a non-signatory country. She aims to prioritize the welfare of the children through her laws. For instance, a writ petition of habeas corpus can be filed under Article 226 of the Constitution in the High Court which shall compel the abducting parent to come to the court premise along with the child.
Judgments of Indian Courts
Several judgments of the court have held up the need to prioritize the child’s welfare which shall be listed below.
Saraswatibai Shripad Vad vs Shripad Vasanji Vad[6] held that in cases involving a dispute over the child’s custody, it is the welfare of the child alone that the court shall prioritize and not the welfare of the mother or the father.
Rosy Jacob v. Jacob A. Chakramakkal[7] postulated that while the father does have his rights as the natural guardian of the child, the custody shall be given to the mother if such custody fails does not fall in line with the best interests of the child putting the welfare of the child at risk. Thus it is not merely establishing the custody of the child the purpose of the Guardianship and Wards Act 1890 but also ensuring due protection to the education, health, and welfare of the ward
Mausami Moitra Ganguli vs. Jayant Ganguli[8] substantiated the heavy duty of the courts to determine where the best interest of the child would lie in by a careful examination of the facts and circumstances of each case which extends far beyond looking at which party had better financial resources or which one could provide the child with more love.
Surinder Kaur Sandhu vs. Harbax Singh Sandhu[9] liberally interpreted Section 6 of the Hindu Minority and Guardianship Act 1956 wherein the father is constituted as the natural guardian of the minor son. The court held that this section should be interpreted keeping in mind the best interests of the child in question. This judgment does very well in providing recourse to the victims of domestic violence in the event of cross-border child abduction on their end.
Conclusion
Cross-border child abduction is either a necessary evil, when it comes to the person escaping an abusive household, or a move to establish dominance over the situation by the perpetrator of domestic violence. In either of these scenarios, it is the child who has the least control over his own life. While it is true that parents owe the greatest responsibility to their child as it was their choice to bring one into this world, they do not always carry it out. Thus the legal system has to step in to make up for this. While India chose to not become the signatory of the Hague Convention, her laws have adequate provisions for the welfare of her children. Thus by deciding to prioritize the child’s welfare, India leaves room for open interpretation of laws which ensures that instead of merely designating someone a criminal for taking away their child from one place to another, the facts and circumstances of each case are examined carefully, which may not have happened had India chosen to be a signatory to the Hague Convention.
Author(s) Name: Manya Manish (Hidayatullah National Law University)
References:
[1] Sureshika Samindi Thilakarathna ‘Children are the future pillars of our nation-it’s our responsibility to protect them’ (news.ik 15 May 2015) < https://www.news.lk/fetures/item/7661-children-are-the-future-pillars-of-our-nation-it-s-our-responsibility-to-protect-them> accessed May 15,2022
[2] Indian Penal Code, 1860 s359
[3] Indian Penal Code, 1860 s360
[4] Indian Penal Code, 1860 s 361
[5] Sharanjit Kaur, ‘A Parent’s Nightmare: Cross Border Child Abduction’ (BW BUSINESSWORLD, 12 December 2019) < https://www.businessworld.in/article/A-Parent-s-Nightmare-Cross-Border-Child-Abduction-/12-12-2019-180260/> accessed 21st May 2022
[6] [1941] 43 BOM LR 79
[7] [1973] 1 SCC 840
[8] [2008] 7 SCC 673
[9] [1984] 6 SCC 698
