Custody row abroad; Law Comm's draft law on parental abduction

If an NRI parent chooses to take away a child and restrict the other parent from meeting or talking to the kid, there is no law to deal with it in India.
Such a situation has often caused a tricky situation for the judiciary here to decide those cases in the absence of a specific law, as there have been growing instances of estranged NRI couples accusing one another of either going away with a child to another country or fraudulently getting a favourable decree from a foreign court.
The rise in such cases in which the bitter cross-country custody battle many a times take an ugly shape, has prompted jurists to ponder over a law to deal with the concept of "parental abduction."

Parental kidnapping or abduction is defined as taking, retaining or concealing a child by his parent in violation of the rights of the child's other parent or another family member, including custody and visitation rights, Law Commission Chairman Justice B S Chauhan told PTI here.
Taking a cue from the Hague Convention of 1980, the Law Commission has prepared a draft legislation to deal with the issue of growing cases of "parental abduction".
A law on it became necessary as there is no specific law today to deal with such a situation and the courts here decide such cases as per their "own wisdom", Justice Chauhan said.

He said there is a need to have such a law as the person, aggrieved by a foreign court decree in custody battle cases, refuses to honour the outcome and indulges in deceit. He or she then unlawfully leaves the foreign country with the child and comes to India where there is no such law.

"We have submitted our report to the Centre in which a draft legislation has been prepared on the aspect of parental abduction law," Chauhan, a former Supreme Court judge, said.
"The draft law stresses that the welfare of the child was of paramout consideration," he said.

"The basis of the draft law is the Hague Convention of 1980 and the emphasis has been that the courts here should decide that the foreign decree on custody has not been secured by fraud, misrepresentation, deceit or the decree has been obtained without the jurisdiction."
Further, he said the law on parental abduction referred to the custody battle for a child where one of the parents tries to defeat the decree of a foreign court.
The draft law was prepared by the Law Commission in pursuance of a reference received from the Punjab and Haryana High Court in Seema Kapoor versus Dipak Kapoor case through an order of February this year.

The reference involved inter-country, inter-parental child removal amongst families and to consider whether recommendation should be made for enacting a suitable law for signing a convention on child abduction.