Mother is recognised in India as a primary caregiver, and it is unfair that those who often flee an abusive marriage, is branded an abductor. Analyse the validity of the statement and the rationality behind signing the Hague Convention.
Refer - The Hindu
IAS Parliament 7 years
Issue
· This is a gendered issue, which concerns women who live in what has come to be known as NRI marriages.
· Often a male Indian migrant who is a green card holder comes to India to marry an Indian woman, not a green card holder, who he takes back on a dependent visa.
· They settle abroad and have children.
· When trouble erupts between them, women tend leave the country with her children to India.
· Hague Convention enters the picture here.
Hague Convention
· It is an international treaty to ensure the return of a child who has been “abducted” from the country of their “habitual residence”.
· To address the issue of custody of children caught in “transnational marital discord.”
· Under the Convention, contracting countries must establish a central authority to trace unlawfully removed children and secure their return to the country of habitual residence.
· This is irrespective of the country’s own laws on the issue and applies to children under the age of 16.
Disadvantages of ratifying agreement
· There are number of cases where women fleeing a violent marriage with the children, with no desire to return. To compel such a child to return to the foreign country, who would obviously go with her mother, would be terrible.
· It is mainly women, who are compelled to return to a foreign country to fight lonely battles for custody with no support.
· Often such litigation is carried only by husbands with a view to compel a woman to give up her claims to alimony and any separation settlement.
· It is a known fact that when faced with such a choice, custody of children or alimony, women choose to exit a bad marriage with custody of the children with no alimony.
Indian scenario
· Indians’ follow the principle that, No parent can ‘abduct’ her own child.
· Our courts exercise ‘parens patriae’ jurisdiction over children - they are the ultimate guardians of children in their jurisdiction.
· When faced with a claim from a father who says that the child has been removed from his custody in the face of a court order granting him custody, the court must decide whether it is in the best interest of the child to be sent back to a foreign land.
· Indian law does not automatically recognise foreign judgments.
· Now by signing the Hague Convention, we will be compelled to recognise a foreign judgment regardless of the justness of the decision on custody under Indian law or whether was delivered ex-parte.
