Abductions of children from USA
There are over 3 million people of Indian origin living in USA.
There have been several instances where a couple of Indian origin is living in USA, and the wife surreptitiously leaves with her child or children for India, and then refuses to return to USA. In such cases sometimes the husband obtains an order for custody from a U.S. Court, but it is not honoured in India. What is the law in this connection ? I myself had some such cases before me when I was a Judge of the Indian Supreme Court.
The law is that both the parents have joint custody of a minor child. So it is illegal for one of the parents to surreptitiously take away the child, and deny joint custody to the other spouse. In USA this is a crime under the Parental Kidnapping Crime Act.
Apart from the above law, there is a Hague Convention on Civil Aspects of International Child Abduction, 1980, which came into effect in December 1983. This provided for returning an abducted child to the country from which it was abducted.
However, India has not signed the Hague Convention, and so the Indian Govt. is not bound by its provisions.
As regards, judgments of American courts for restoring custody to the father, these are not binding in India, vide Dhanvanti Joshi vs. Madhav Unde, JT 1997 (8) S.c. 720, Sarita Sharma vs. Sushil ASharma, JT 2000 (2) S.C. 268, Sahiba Ali vs. State of Maharashtra, JT 2003 (6) S.C. 79 etc, though they are a factor which can be taken into consideration.
The Indian Govt. will not comply with orders of custody passed by American courts, as these are not binding in India. India is a sovereign country having its own laws and its own courts.
If the father of the child files a petition for custody of the child in an Indian court, the law that will apply is the Guardians and Wards Act, 1890, and, in the case of Hindus, the Hindu Minority and Guardianship Act, which provide that custody of a child below 5 years of age should ordinarily be with the mother. However, the law of custody is well settled, that the paramount consideration for the court in awarding custody is the welfare of the child. So even if the child is below 5 years of age, the court may not grant custody to the mother if by evidence it is established that it will not be in the interest of the child's welfare to award custody to the mother, e.g if she is a prostitute or drunkard or drug addict or is otherwise unfit to look after the child
There are over 3 million people of Indian origin living in USA.
There have been several instances where a couple of Indian origin is living in USA, and the wife surreptitiously leaves with her child or children for India, and then refuses to return to USA. In such cases sometimes the husband obtains an order for custody from a U.S. Court, but it is not honoured in India. What is the law in this connection ? I myself had some such cases before me when I was a Judge of the Indian Supreme Court.
The law is that both the parents have joint custody of a minor child. So it is illegal for one of the parents to surreptitiously take away the child, and deny joint custody to the other spouse. In USA this is a crime under the Parental Kidnapping Crime Act.
Apart from the above law, there is a Hague Convention on Civil Aspects of International Child Abduction, 1980, which came into effect in December 1983. This provided for returning an abducted child to the country from which it was abducted.
However, India has not signed the Hague Convention, and so the Indian Govt. is not bound by its provisions.
As regards, judgments of American courts for restoring custody to the father, these are not binding in India, vide Dhanvanti Joshi vs. Madhav Unde, JT 1997 (8) S.c. 720, Sarita Sharma vs. Sushil ASharma, JT 2000 (2) S.C. 268, Sahiba Ali vs. State of Maharashtra, JT 2003 (6) S.C. 79 etc, though they are a factor which can be taken into consideration.
The Indian Govt. will not comply with orders of custody passed by American courts, as these are not binding in India. India is a sovereign country having its own laws and its own courts.
If the father of the child files a petition for custody of the child in an Indian court, the law that will apply is the Guardians and Wards Act, 1890, and, in the case of Hindus, the Hindu Minority and Guardianship Act, which provide that custody of a child below 5 years of age should ordinarily be with the mother. However, the law of custody is well settled, that the paramount consideration for the court in awarding custody is the welfare of the child. So even if the child is below 5 years of age, the court may not grant custody to the mother if by evidence it is established that it will not be in the interest of the child's welfare to award custody to the mother, e.g if she is a prostitute or drunkard or drug addict or is otherwise unfit to look after the child
Sir, In lieu with what was said above , the irony and further set back to such father is that before he returns to India to file joint custody petition, there will exist a fake 498a on him and entire family members to jeopardy him further more, which would take considerably long long time and expensive fight in the court. I remember Mr. Govinda's song in a movie which goes like this ... "It happens only in India...It happens only in India...."
ReplyDeleteSir, I'm sorry..but in the above comment I forgot to mention other embarrassments which father would go through.. Seizure of his passport to block his return by police, loss of job, defame him in the society, showing him as criminal without even proving allegations in police records in order to further not letting him get job anywhere in the country as he will fail background verification. Now will start DVC CASE on him for maintaining wife and children separately from 498a. Sir, if I start...it will go on without end. You know it all Sir...as per NCRB the suicide rate of men is more than double compared to women approx 75,000 men commit suicides each year. It time for India to have unbaised law system which is gender neutral. Else in no time marriages in India would extinct and only history!
DeleteI bow down to this article....
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