Year-long jail for parental kidnapping, six months for relatives proposed

NEW DELHI: Warring couples, beware! One could end up behind bars for a year if found guilty of “abducting” a child from a parent in another country.

And relatives facilitating the “abduction” may find themselves in jail for six months. In a first, the government’s law body has proposed imprisonment for a maximum of one year for those found guilty of inter-parental child “abduction.” The Law Commission has suggested a lenient view towards such parents because such offences are borne out of “overwhelming love and affection and not with the intention to harm the child.”

India has no law to deal with such offences. To ensure the return of children who are wrongfully removed, the Ministry of Women and Child Development has drafted the “Civil Aspects of International Child Abduction Bill, 2016.”

The bill doesn’t have a provision for punishment for wrongful removal or retention. The panel, headed by retired Supreme Court judge BS Chauhan, submitted a report to the law ministry making several recommendations on the issue of inter-country child removal or abduction.

The 43-page report has suggested that the existing bill be rechristened the “Protection of Children (Inter-Country Removal and Retention) Bill, 2016.”

The commission’s recommendation of a one-year imprisonment term is less stringent than laws for such offences in some other countries. In the UK, the Child Abduction Act, 1984, makes such offences punishable with imprisonment of up to seven years, the panel said.

The commission recommended the word “abduction” be replaced with “removal” or “retention” from the existing bill.

Suggesting a soft approach towards such parents, the commission stated that “child abduction is dealt with stringently by most countries but ‘abduction’ of the child across borders by his or her own parent is governed by a rather arcane corpus of laws. In the case of parental abduction, these so-called abductors are most of the times, loving parents.”

Settling a long-pending debate, the commission was of the opinion that Indian courts have the power to order the return of an “abducted” child even if the matter has already been settled by a court of a foreign country. There are six exceptions under which Indian courts cannot order the return of a child.

These include: If the child has attained an age and level of maturity to decide for his/her well-being; if there is a grave risk that the return of the child would expose him/her to physical or psychological harm, and if the return is not permitted under the fundamental rights of the country. Another exception is if the person allegedly involved in the wrongful removal or retention was fleeing from any incident of domestic violence.

The panel held in normal circumstances, Indian courts should not interfere in legal matters already decided by a court of a foreign country. It said the object of the Hague Convention, 1980, and the International Child Abduction Bill “must be subordinate when considered against the child’s interest. The desire to protect children must be based upon a true interpretation of their best interests.”