bar & bench () · america since 2011. petitioner no. 2 was married in december 2004 in india...

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IN THE HON’BLE SUPREME COURT OF INDIA

(CIVIL ORIGINAL JURISDICTION)

Writ Petition (Civil) NO.________ OF 2017

(A petition under Article 32 of the Constitution of India

praying for a Writ of Mandamus or any other appropriate

writs for framing of guidelines and/or directions regarding

International Parental Child Abduction to India)

IN THE MATTER OF:

1. Bring Our Kids Home, Through its authorized signatory,

Mr. Vikram Jagtiani, S/o Kamal T. Jagtiani, aged about

53 years, R/o 64-41, Saunders St., Rego Park, NY, USA-

11374, presently at New York, USA; C/o J-14 (Basement),

Jangpura Extension, New Delhi-110014

2. Nihar Panda, S/o Bijay Sankar Panda, aged about 38

years, R/o Shubham Palace-C, Plot No. GA-501, Sailasree

Vihar, Bhubaneswar, India, Presently at 19564 Turtle

Ridge Ln, Porter Ranch, CA 91326 USA

3. Siminder Kaur, D/o Sh. Sukhvinder Singh Chopra, Aged

about 34 years, R/o 323 Grand Steeple Drive, Collierville,

TN 38017, USA; C/o J-14 (Basement), Jangpura

Extension, New Delhi-110014 … Petitioners

Versus

1. Union of India, Through Secretary, Ministry of External

Affairs, Central Secretariat, South Block, New Delhi-

110001.

2. Ministry of Woman & Child Development, Through

Secretary, Shastri Bhawan, New Delhi,110001

3. Ministry of Law & Justice, Through Secretary, 4th Floor,

A-Wing, Shastri Bhawan, New Delhi-110 001

4. Ministry of Home Affairs, Through Secretary, North

Block, Central Secretariat, New Delhi-110001

… All Respondents are Contesting Respondents.

Bar & Bench (www.barandbench.com)

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WRIT PETITION UNDER ARTICLE 32 OF THE

CONSTITUTION OF SEEKING ISSUANCE OF

APPROPRIATE GUIDELINES AND/OR DIRECTIONS

REGARDING INTERNATIONAL PARENTAL CHILD

ABDUCTION

To,

The Hon’ble the Chief Justice of India

And His Companion Justices

of the Supreme Court of India.

The Special Leave Petition of

the Petitioner above named

MOST RESPECTFULLY SHEWETH:

1. This Writ Petition under Article 32 of the Constitution has

been filed by the Petitioner Organization, consisting of

residents of USA, seeking clear guidelines from this

Hon’ble Court on the conflict of jurisdiction and

procedural aspects of International Parental Child

Abduction cases. Bring Our Kids Home is an incorporated

organization formed by left behind parents in the USA

seeking the immediate return of children kidnapped from

the USA to India. This organization was formed in

response to the alarming rate of child abductions to India

from the USA and other nations around the World, by

several parents. The Petitioner organization is

approaching this Hon’ble Court as their right to life under

Article 21 and the right to equality and non-

discrimination under Article 14 of the Constitution of

India is being violated by keeping their children abducted


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in India. A true copy of the certificate of incorporation of

the Petitioner-Bring Our Kids Home along with typed copy

is annexed herewith as Annexure P-1 at pages 45 to 46.

The present petition is being filed by Mr. Vikram Jagtiani,

who is the authorized signatory of the Petitioner

organization.

1A. The Petitioners in the present Petition have not

approached any concerned authority in respect of the

issue involved in this Petition.

1B. The Petitioners in the present Writ Petition are residents

of the United States of America and they have been

residing there for a long time. The Petitioner no. 1 and 3

do not have a local address. The local address of

Petitioner no. 2 is Shubham Palace-C, Plot No. GA-50,

Sailasree Vihar, Bhubaneswar, India.

1C. The Petitioners herein are aggrieved for lack of clear

guidelines on the issue of jurisdiction and procedural

aspects of international Parental Child Abduction cases

for the reasons as follows:

a. The Petitioner no. 1 is a Non-Profit Organization

formed by the parents who have suffered through the

plight of child abduction to a different country from

the United States of America. The Petitioner no. 1 has

made several efforts in facilitating the grievances of

such parents whose children have been abducted and

taken to different countries. In the present case, the


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Petitioner no. 1 is seeking effective guidelines from

this Hon’ble Court for the immediate return of the

children kidnapped from the USA to India in respect

of such helpless parents.

b. The Petitioner no. 2 is an Indian National, who had

started working and residing in the United States of

America since 2011. Petitioner no. 2 was married in

December 2004 in India and moved permanently to

the Unites States with his wife. Thereafter, Petitioner

no. 2 along with his wife applied for Green card in

June 2006, expressing their intention to permanently

reside in the United States by filing I-485, which is

the Adjustment of Status to Permanent Residence,

the last stage of the Green Card Process.

In December 2007, a daughter, Trisha Panda,

was born to the Petitioner no. 2 and his wife. Trisha

Panda is a US citizen by birth and a holder of PIO

card (Person of Indian origin) from the General

Consulate of India, New York.

The marriage of the Petitioner no. 2 has started

suffering due to various issues. So, on 15.08.2013,

Petitioner no. 2 filed for divorce and joint custody of

his child in the Hon’ble Superior Court of California,

Los Angeles, so that the child is in a peaceful

environment and is not affected by the strenuous

marriage. The summons in respect of the above-


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mentioned divorce and joint custody application was

served on the wife of the Petitioner no. 2, which

required her to avail permission from the Hon’ble

Superior Court before taking the child out of

California.

However, the wife of Petitioner no. 2 left for India

on 23.08.2013 with their child without taking any

permission. Thereafter, the wife of the Petitioner no. 2

lodged an FIR against the Petitioner no, 2 in India

under sections 498A and 307 of IPC and also under

Protection of Women from Domestic Violence Act,

2005, claiming hefty maintenance from the Petitioner

no. 2.

It is submitted that the Petitioner no. 2 has been

paying Rs. 30,000/- per month to his wife in respect

of interim maintenance and has already paid about

Rs. 8.7 lacs. The proceedings in the aforesaid cases

are pending since the wife of the Petitioner no. 2 has

stopped appearing before the Hon’ble Court for

evidence. The aforesaid cases are pending since the

last 4 years.

Meanwhile, in January 2014, the Petitioner no. 2

filed a writ of habeas corpus before this Hon’ble High

Court of Orissa bearing Writ Petition (Criminal) No.

93 of 2014. In march 2014, the Petitioner no. 2

appraise the Hon’ble Superior Court of Los Angeles of


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the habeas corpus petitioner before the Hon’ble Court

of Orissa in India. Subsequently, in June 2014, the

Hon’ble Superior Court of Los Angeles passed interim

order granting the Petitioner no. 2 sole legal and

physical custody of the child and directed the wife of

Petitioner no. 2 to return the child to the jurisdiction

of the Hon’ble Court.

Thereafter, in July 2014, the Petitioner no. 2

submitted the aforesaid interim Order of the hon’ble

Superior Court of Los Angeles before the Hon’ble High

Court of Orissa in the Writ Petition (Criminal) No. 93

of 2014. However, the proceedings in the aforesaid

writ petition is pending since the last 4 years. The

Petitioner no. 2 has travelled to India on 12 different

occasions for the purpose of the said case. However,

despite best efforts of the Petitioner no. 2 and his

advocates in trying to achieve a favourable outcome of

the said case, there has not been any progress.

The Petitioner no. 2 has lost valuable years with

his child due to her illegal abduction by her mother,

when she was 5.5. years old. Now, the child of the

Petitioner no. 2 is going to be 10 years old and the

Petitioner no. 2 has been completed alienated and

isolated from her emotionally. The child is being used

by the wife of the Petitioner no. 2 as a way of causing

emotional and mental distress to the Petitioner no. 2.


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There has been numerous occasion when the mother

of the child did not allow the child to talk to Petitioner

no. 2 even on the phone on occasions of her birthdays

and other festivals.

Therefore, the Petitioner no. 2 aggrieved by the

lack of any guidelines on the issue of jurisdiction and

procedural aspects of international Parental Child

Abduction has approached this Hon’ble Court for

appropriate relief.

c. Petitioner no. 3 is a young mom of a 3 year old child,

but past 2 years of being a new mom has been

nothing but easy for her. She went through intense

trauma and pain, a pain she wishes no other parent

goes through ever. Her son Anhad was only 15

months old when he was deceitfully snatched from

her by Petitioner no. 3’s husband and in-laws as part

of a conspiracy. Petitioner no. 3 and her husband are

legal permanent residents of US, living in US since

their marriage in 2008 and their son is a US citizen.

During a family vacation trip to India in Oct 2015,

Petitioner no. 3 was asked to leave her son with

paternal grandparents for a short while to work on

her “failing marriage”. Petitioner no. 3 initially refused

to leave her son but in an attempt to save her

marriage, in the end she agreed to her husband’s

proposal and entrusted her son to her in-laws, not


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knowing what was coming ahead of her. What

followed next was beyond anything she had ever

experienced in an abusive relationship. Petitioner no.

3 and her husband left their 15 month old child in

paternal grandparents’ care in Nov 2015 and went

back to US with a plan to come back in a few months

to take Anhad back. Little did Petitioner no. 3 know

that her husband had no intentions to work on the

marriage after leaving their son in India and was in

fact preparing for separation. Thereafter, her

husband started taking legal advice both in US and in

India and perhaps he may have realized that India is

a top safe haven for International Parental Child

Abduction. Oblivious to her husband’s intentions,

Petitioner no. 3 could not bear the separation from

her son and started asking her husband to make

plans for Anhad’s return as early as Jan 2016. Her

husband ignored all of Petitioner no. 3’s pleas and

kept delaying the return of the child on one pretext or

the other by using excuses like child’s health, child’s

OCI card under process, his work related travel, and

ultimately asking Petitioner no. 3 to quit her job to

care for the child in order to bring him back.

Petitioner no. 3 realized that her husband and in-

laws will not let her bring her son back unless she

agrees to their terms.


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In desperation to get her child back, Petitioner

no. 3 informed her in-laws that she is coming to India

to get her son back, but she received no response. In

April 2016, Petitioner no. 3 took one-week vacation

and with return tickets, she went to India alone to get

her son back, but as soon as she reached India, she

came to know that her in-laws had already lodged a

false police complaint against her debarring her from

coming to the house where her son was being held.

Petitioner no. 3 contacted the local police asking for

help, but instead of helping, the police asked her to

get a court order to see her own 20 months old son

withheld by the grandparents. Petitioner no. 3 later

found out that the police had been influenced by

husband’s political connections and perhaps even

money. That is when Petitioner no. 3’s fight for justice

began.

Petitioner no. 3 had faced domestic violence

including dowry harassment, emotional abuse,

physical abuse, financial abuse from her in-laws

throughout her marriage, but in fear of social stigma

and hopes of things getting better she never

complained. However, she did not think that one day

she will be subjected to the extreme form of abuse of

child snatching. When her in-laws denied Petitioner

no. 3 access to her son and refused her to even get a


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glimpse of her son, Petitioner no. 3 had to cancel her

return ticket and stay in India to fight for her rights.

She filed multiple civil and criminal law suits against

her husband and in-laws and stayed in India for 5

months, going from pillar to post to see her son.

Within a matter of days of being denied access to her

son, Petitioner no. 3 filed a criminal writ petition of

Habeas Corpus and domestic violence case among

other cases. In 5 months, she only saw her son for 10

hours on 5 different occasions, but only through

court orders. All of those meetings were completely

sabotaged and Petitioner no. 3 could not spend any

meaningful time with her son amidst the chaos that

her in-laws created. When Petitioner no. 3 met Anhad

through court orders, her son showed no emotions

towards her as he was alienated because of the

prolonged separation. In August 2016, the Hon’ble

Punjab and Haryana High Court gave Petitioner no. 3

a 6 months date without giving her any visitation /

access to the child. On 01.09.2016, Petitioner no. 3

filed an application for interim custody of her child by

referencing several rulings of this Hon’ble Court, but

her application was dismissed in limine without a

hearing by the same Court. Petitioner no. 3 was

shocked, broken and extremely traumatized to hear

that without granting an opportunity of hearing on


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the merits of the case, a court denied interim custody

of a 2.5 year old child and favored the grandparents

over the child’s natural mother. Moreover, a mother

was not given any visitation rights to her child.

Petitioner no. 3 realized that her husband and in-

laws were using all legal tactics and possible

influence to get things in their favor and she lost faith

in India’s justice system.

With a heavy heart and outraged mind, Petitioner

no. 3 went back to US to save her job and to seek

legal remedies for the return of her US citizen child.

Amidst the court battle, under compelling

circumstances Petitioner no. 3 also went public with

her story and campaigned on social media.

Thousands of people worldwide supported Petitioner

no. 3 and joined her fight for justice. Petitioner no. 3

kept fighting, never losing hope and with the amount

of support she got worldwide, she started her

litigation in US. On 06.10.2016, just after a month of

going back, she was granted an Order by the Hon’ble

Court in the United States against her husband to

return the child immediately to her. This was her first

big victory in a long time and she was elated, hoping

to see her son very soon. However, her husband did

not follow the orders of the Hon’ble Court in the

United States and instead appealed it on the grounds


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of jurisdiction. Once again Petitioner no. 3 was

devastated, not knowing how long this struggle will

take and not knowing whether she will be able to ever

see her child ever again. Petitioner no. 3’s legal team

argued the case in Hon’ble Tennessee’s Appellate

Court and ultimately won the appeal on 02.02.2017.

Petitioner no. 3 was afraid that as soon as her

husband loses the litigation before the Hon’ble Court

in the United States, he would flee from US and go

back to India permanently and she will never see her

child again. This happened in many cases of

International parental child abduction because India

is not a signatory to Hague Convention and therefore,

there is no easy way to get a child back once

abducted/retained to/in India.

Petitioner no. 3 never gave up and kept fighting,

pursuing her case with every authority she could,

both in India and in US. On 3rd Feb, FBI of United

States arrested Petitioner no. 3’s husband on charges

of “international parental child kidnapping and

conspiracy to kidnap”, and with the arrest, Petitioner

no. 3’s chances to see her child again increased. In

the subsequent 2 weeks Petitioner no. 3’s in-laws

negotiated with the US authorities and ultimately

brought the child back to US, but only after playing

the last of their legal tactics in India. Petitioner no. 3


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was asked to withdraw her cases and complaints

from India and not to pursue / depose criminal

charges against her husband in order for child to

come back to US. In desperation of seeing her son get

on a flight to US, she agreed to do so. On 24th

February, finally Petitioner no. 3 recovered her son

from the paternal grandparents with the help of FBI.

She took custody of her son right from the airport

gate having given a special clearance and escorted by

the FBI team. Petitioner no. 3’s arms were sore by

holding and carrying her son in her arms, but that

pain was the sweetest pain she ever felt in a long

time. She could not believe what she was seeing and

it took her some time to make sense of this new

reality.

Today, An had is back in his home living with his

mom, safe, happy and healthy but it was an uphill

battle to reach this stage. Petitioner no. 3 had to go

through immense emotional trauma and extreme

financial burden to get her child back as she received

no help from Indian authorities or the Indian judicial

system.

However, the Petitioner no. 3 has suffered

immense emotional and mental trauma due to the

illegal abduction of her child to India by her husband.

She not only had to face emotional and mental


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trauma but had to fight battles of litigation both in

the Hon’ble Courts of the Unites States and India due

to lack of clear guidelines on the issue of jurisdiction

and procedural aspects of international Parental

Child Abduction. In order to avail legal facilitation for

the aforesaid issues and sufferings of Petitioner no. 3,

she has approached this Hon’ble Court for

appropriate relief.

2. International Parental Child Abduction ("IPCA"), is the

illegal removal of children from their home country by a

"taking" parent to a foreign country or the illegal retention

of children in a foreign country by the taking parent. The

taking parent is either violating or refusing to honor

existing custodial order or custodial rights of the other

parent. Children are taken without the other parent's

consent or a court order from the jurisdiction where

children habitually reside, and thus wrongfully retained

in a foreign country. IPCA is a form of child abuse and a

crime against children, perpetrated by a parent, not a

stranger. Children are deprived of the love and affection of

the parent left behind, often subjected to and sustain

mental manipulation to believe the parent left behind is

the cause of their problems, and robbed of their sense of

security, leading to parental alienation and other serious

consequences.


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3. The facts that have led to filing of the present writ petition

are as follows:

a. On 25th October, 1980 various nation states

concluded the Convention on Civil Aspects of the

International Child Abduction at Hague, Netherlands

(“Hague Convention on Child Abduction, 1980”).

The Convention is based upon the notion that the

child should be promptly restored to his or her

country of habitual residence, so a court there can

examine the merits of the custody dispute. This is

because the Court in the country where the child has

habitual residence is in a better position to consider

the child’s best interests. The Convention further

provides for a legal mechanism for countries to work

together on child abduction cases. It requires for the

formation of a Central Authority which is supposed to

help locate abducted children, help encourage

amicable solutions to parental abduction cases, and

help process requests for return of children within 6

(six) weeks of filing a return application. In order to

file an application for the child’s return, certain

conditions must be fulfilled including that the child

must be a habitual resident in a Convention country

and must have been wrongfully removed or retained

in another Convention country. There are exceptions

to a country’s obligation to return the child when


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there is a grave risk that the child would be exposed

to physical or psychological harm, or the child objects

to returning, or if returning would violate the human

rights and freedoms of the country where the child is

held. Hence, The Hague Convention on Child

Abduction, 1980 also considers welfare and best

interest of the child as a paramount consideration.

Till date, India is not a signatory to this Convention.

A true typed copy of the Hague Convention on Civil

Aspects of the International Child Abduction

concluded at Hague, Netherlands on 25th October,

1980 is annexed herewith as Annexure P-2 at pages

47 to 68.

b. The United Nations Convention on the Rights of the

Child (“UNCRC”) came into force in 1990 and India

ratified the UNCRC on 11th December, 1992. The

relevant provisions of the UNCRC, in so far as the

issues raised in the present petition are concerned

are as follows:

“Article 2

1. States Parties shall respect and ensure

the rights set forth in the present

Convention to each child within their

jurisdiction without discrimination of any

kind, irrespective of the child's or his or

her parent's or legal guardian's race,

colour, sex, language, religion, political or


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other opinion, national, ethnic or social

origin, property, disability, birth or other

status.

(Emphasis Supplied)

“Article 4

States Parties shall undertake all appropriate

legislative, administrative, and other

measures for the implementation of the rights

recognized in the present Convention. With

regard to economic, social and cultural rights,

States Parties shall undertake such measures

to the maximum extent of their available

resources and, where needed, within the

framework of international co-operation.”

(Emphasis Supplied)

“Article 9

1. States Parties shall ensure that a child

shall not be separated from his or her

parents against their will, except when

competent authorities subject to judicial

review determine, in accordance with

applicable law and procedures, that such

separation is necessary for the best

interests of the child. Such determination

may be necessary in a particular case

such as one involving abuse or neglect of

the child by the parents, or one where the

parents are living separately and a

decision must be made as to the child's

place of residence.

2. In any proceedings pursuant to

paragraph 1 of the present article, all


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interested parties shall be given an

opportunity to participate in the

proceedings and make their views

known.

3. States Parties shall respect the right of

the child who is separated from one or

both parents to maintain personal

relations and direct contact with both

parents on a regular basis, except if it is

contrary to the child's best interests.”

(Emphasis Supplied)

“Article 10

1. In accordance with the obligation of

States Parties under article 9, paragraph

1, applications by a child or his or her

parents to enter or leave a State Party for

the purpose of family reunification shall

be dealt with by States Parties in a

positive, humane and expeditious

manner. States Parties shall further

ensure that the submission of such a

request shall entail no adverse

consequences for the applicants and for

the members of their family.

2. A child whose parents reside in different

States shall have the right to maintain on

a regular basis, save in exceptional

circumstances personal relations and

direct contacts with both parents.

Towards that end and in accordance with

the obligation of States Parties under

article 9, paragraph 1, States Parties


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shall respect the right of the child and his

or her parents to leave any country,

including their own, and to enter their

own country. The right to leave any

country shall be subject only to such

restrictions as are prescribed by law and

which are necessary to protect the

national security, public order (ordre

public), public health or morals or the

rights and freedoms of others and are

consistent with the other rights

recognized in the present Convention.”

(Emphasis Supplied)

“Article 11

1. States Parties shall take measures to

combat the illicit transfer and non-return

of children abroad.

2. To this end, States Parties shall promote

the conclusion of bilateral or multilateral

agreements or accession to existing

agreements.”

(Emphasis Supplied)

“Article 35

States Parties shall take all appropriate

national, bilateral and multilateral measures

to prevent the abduction of, the sale of or

traffic in children for any purpose or in any

form.

(Emphasis Supplied)

It is evident from the above quoted provisions of the

UNCRC that even though India has not ratified The

Hague Convention on Child Abduction, 1980, it has


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similar obligations under UNCRC, which is a binding

international obligation on India. A true typed copy of

the United Nations Convention on the Rights of the

Child entry in to force on 02.09.1990 is annexed

herewith as Annexure P-3 at pages 69 to 113.

c. The facts that constitute the cause of action are that

today India is one of the top destinations of

international parental child abductions from the U.S.

(Amongst Top 2) and U.K. (Amongst Top 3). The rates

of parental child abductions to India are alarming. A

true typed copy of the relevant portion of an annual

report on International Child Abduction 2017

indicating the extent of Parental Child Abduction to

India is annexed herewith as Annexure P-4 at pages

114 to 226. A true typed copy of the relevant portion

of Annual Report on International Parental Child

Abduction (IPCA) released by the U. A. Department of

State Bureau of Consular Affairs in 2016 is attached

herewith and marked as Annexure P-5 at pages 227

to 274.

d. India and the Government of India do not have any

law, guidelines or any kind of framework to deal with

such cases. The cases often take years to resolve,

leading to children and families often suffering from

emotional, psychological and financial trauma. A


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non-exhaustive list of the problems faced is as

follows:

i. There have been cases where the left-behind

parent does not even know where the child is

staying in India. Some parents vanish with the

child without disclosing an address to the other

parent. In a similar case decided by the Hon’ble

Supreme Court, the mother and the child could

not be found for two years since they kept

shifting from one place to another. This is a

traumatic experience for the other parent who

does not know the whereabouts of his/her child,

as well as the child.

ii. Most of the times, the access to the child is

significantly curtailed or completely cut off. The

left-behind parents are not able to talk to their

own children over the phone, or through video

calling and are not even allowed to meet them.

This leads to a desperate situation for the left-

behind parent leading to severe mental trauma

and the child also gets alienated from his/her

own parent.

iii. The taking parent has complete access to and

control over the child. The entire process of

coming to India, appointing a lawyer and fighting

a case in the court takes so long that the taking


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parent has full liberty and time to brainwash the

child against the left-behind parent. The

impressionable minds of children are easily

swayed by what is fed to them at that tender age.

iv. The parent that abducts the child to India often

lodges false criminal complaints with the Indian

police against the left-behind parent. This is done

simply to prevent the left-behind parent to come

to India and file a petition in the courts for

custody of the child.

v. The taking parent resorts to "forum shopping" to

thwart laws of the child's home country. Victims

often struggle to get the support they need from

law enforcement, government officials and society

at large, who fail to recognize IPCA as a crime.

India does not have any laws or guidelines

regarding the same. As such, children abducted

to India rarely return.

vi. The only recourse for the distressed parent is to

approach the Courts in India and to engage in

cumbersome, time consuming and expensive

litigation. This also requires huge amounts of

money to be spent on travel costs to India and in

appointing lawyers. It is not only a grave financial

burden but also results in tremendous

psychological burden of engaging a lawyer and


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fighting a case in a different and in certain cases,

an unknown country. Other hardships faced by

the left behind parents include loss of

employment, income and

emotional/psychological trauma.

e. Despite the alarming rates of child abductions,

neither the United States nor India have put in place

a mechanism to remedy the human suffering, the

proof of which lies in the ever increasing volume of

unresolved abductions cases to India, over 50% of

them pending for five (5) years or more. These cases

are often treated as “child custody” cases in Indian

Courts and the abducting parent often gets “custody”

of the children, despite contrary Court orders from

jurisdiction where the children are/were habitual

residents.

f. Given the above position, in March, 2009, the Law

Commission of India in its 218th Report recommended

that India should ratify The Hague Convention on

Child Abduction, 1980. It further observed that the

Indian Courts while deciding cases have not followed

a uniform pattern. It was observed that: (Para 2.15,

Pg.20)

“It can be observed that, the Indian Courts

while deciding cases pertaining to minor

children have not followed a uniform pattern.

There also is an absence of progressive


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development in the subject. If some matters

are decided with prime importance placed on

the welfare of the child, some are based on

the technicalities of various provisions of law

and jurisdictional tiffs. The reason cited for

this can be the absence of any law that

governs this aspect. This only will affect the

condition both physical and emotional of the

child, who is caught in the fire of shattered

relationships.”

(Emphasis Supplied)

A true typed copy of the Report No. 218 of the Law

Commission of India submitted in March, 2009 on

Need to Accede to the Hague Convention on Civil

Aspects of the International Child Abduction (1980) is

annexed herewith as Annexure P-6 at pages 275 to

300. Despite the above recommendation, no

measures were taken in this respect by the

Government of India.

g. Finally, in 2016, the Government of India and the

Government of the United States recognized the need

to address this serious issue, which impacts our

bilateral ties and the Indian Prime Minister and the

US President issued a joint statement on 7th June

2016 during the visit of Prime Minister of India to

Washington, D.C. Both the countries have

acknowledged the problem that child custody poses

in this globalized world. Both the countries must now


25

take action in solving the problem. Below is the

excerpt from the joint statement between USA and

India.

"48) Recognizing its mutual goal of

strengthening greater people-to-people ties,

the leaders intend to renew efforts to intensify

dialogue to address issues affecting the

citizens of both countries that arise due to

differences in the approaches of legal

systems, including issues relating to cross-

country marriage, divorce and child custody."

(Emphasis Supplied)

A true typed copy of the Joint Statement issued by

the Prime Minister of India and the President of the

United States, dated NIL is annexed herewith as

Annexure P-7 at pages 301 to 321.

h. Subsequent to this, on 22nd June 2016, the Ministry

of Women and Child Welfare of the Government of

India recognizing the gap in the law on India, put up

on its website a draft bill titled “The International

Child Removal and Retention Bill, 2016”, which was

drafted on the assumption that India would soon

ratify The Hague Convention on Child Abduction,

1980. A true typed copy of the Draft International

Child Removal and Retention Bill, 2016 released by

Ministry of Women and Child Development is

annexed herewith as Annexure P-8 at pages 322 to

343.


26

i. Subsequent to this bill being released in the public

domain, the Law Commission of India again

considered the issue of the International Parental

Child Abduction pursuant to the directions of the

Punjab and Haryana High Court. Pursuant to this

analysis, the Law Commission of India has on 17th

October, 2016 given a detailed 263rd Report proposing

The Protection of Children (Inter-Country Removal &

Retention) Bill. 2016, which envisaged further

changes than the bill proposed by the Ministry of

Women and Child. A true typed copy of the 263rd

Report of the Law Commission of India including

Protection of Children (Inter-Country Removal &

Retention) Bill, 2016 is annexed herewith as

Annexure P-9 at pages 344 to 457.

j. However, despite these development and processes,

the Government of India, in particular, the Ministry of

Women and Child Welfare has decided not to proceed

ahead with the bill and resolve the pending issues

and gaps in law, in effect allowing the status-quo to

continue. A true typed copy of the News Report dated

27th November, 2016 written by Shalini Nair in the

Indian Express reporting the decision of the

Government of India not to proceed ahead with

ratification of the Hague Convention, 1980 is annexed

herewith as Annexure P-10 at pages 458 to 467.


27

k. Despite several pleas, Indian law does not even

recognize international parental child abduction as a

legal issue, leave alone a crime. In India, there is no

legislation or guidelines by the Government to deal

with such cases and matters of custody have so far

been left largely to be determined by the Courts.

There has been no uniform policy followed by the

Courts, which tends to treat the issue of child

removal as a custody dispute between parents. This

is clearly in contravention of India’s international

obligations, as explained above.

l. Also, such a gap in the law not only impacts

international child abduction issues but also impacts

child abduction issues within India. In particular,

there is no law/policy in respect of violation of

custody orders, except for filing contempt, which are

not effective.

4. That in light of the factual and legal position, and in light

of the gap in Indian domestic law, despite clear

international obligations of India, it has become necessary

that this Hon’ble Court issue necessary guidelines to

ensure smooth resolution of cases of International

Parental Child Abduction, including but not limited to

appropriate administrative and/or judicial procedure for

returning a child back to his/her country in a time-bound


28

manner. These guidelines should inter-alia recognize and

state as follows:

A. Distinguish between “child abduction” and child

custody”, the former is a case of wrongful removal

and/or retention of children from their place of

habitual residence, in violation of the child’s rights

and a parent’s custodial rights. The latter being a

case where the care, control, and maintenance of a

child, which a competent court may award to one or

both parents, normally in a divorce or separation

proceeding.;

B. Address the inconsistent approaches in litigations

involving foreign nationals and/or those residing

outside of India, in IPCA, thus preventing significant

hardships to those litigants;

C. Align Indian laws with India’s legally binding

commitment under the UN Convention on Rights of

Children (UNCRC), which India ratified on December

11, 1992.

D. Ensure victimized children are promptly returned

(time bound period) to the country of the children’s

habitual residence, as well as to allow victimized

parents to secure rights of access while the children

are in India.

E. To issue the following specific guidelines as regards

the procedure:-


29

(1). This Hon’ble Court define “child abduction” or

“wrongful removal/ retention” of a child occurs

where:

a. A breach of rights of custody attributed to a

person, an institution or any other body,

either jointly or alone, under the law of the

State in which the child was habitually

resident immediately before the removal or

retention occurs; and

b. At the time of removal or retention those

rights were actually exercised, either jointly

or alone, or would have been so exercised but

for the removal or retention;

i. The rights of custody mentioned in sub-

paragraph a) above, may arise in

particular by operation of law or by

reason of a judicial or administrative

decision, or by reason of an agreement

having legal effect under the law of that

State.

c. The taking parent or person must provide

documentary evidence to show that the child

or children were “legally” brought to India, for

example:

i. A signed and notarized letter from the

non-travelling parent(s) authorizing the


30

taking parent to bring the child/children

to India for a long term or permanent

stay in India; or

ii. Order from a competent Court in the

jurisdiction where the child habitually

resided prior to him/her being brought to

India, authorizing the taking parent or

person to bring the child/children to

India for a long term or permanent stay

in India;

d. A decision under the above guidelines (1(a)-

(c)) concerning the return of the child shall

not be taken to be a determination on the

merits of any custody issue;

e. The above guidelines (1(a)-(d)) concerning the

return of the child shall cease to apply when

the child attains the age of 18 years;

(2) For the purposes of Child Abduction guidelines

described in 1(a)-(e) above

a) "rights of custody" shall include rights

relating to the care of the person of the child

and, in particular, the right to determine the

child's place of residence,

b) "rights of access" shall include the right to

take a child for a limited period of time to a


31

place other than the child's habitual

residence;

(3) The judicial or administrative authorities in India

shall act expeditiously in proceedings for the

return of children;

(4) If the judicial or administrative authority

concerned has not reached a decision within 60

days from the date of commencement of the

proceedings, the applicant, on its own initiative,

shall have the right to request a statement of the

reasons for the delay and an estimated timeline

to reach a decision;

(5) After receiving notice of a wrongful removal or

retention of a child in the sense of guideline 1

above, the judicial or administrative authorities of

India to which the child has been removed or in

which it has been retained shall not decide on the

merits of rights of custody until it has been

determined that the child is not to be returned or

unless an application is not lodged within a

reasonable time eighteen (18) months, following

the wrongful removal or retention of the

child/children;

(6) Parental child abduction cases should be filed at

the High Court within whose jurisdiction the

child has been retained in India. The High Courts


32

ought to hear and decide parental child

abductions cases in an expeditious manner, no

later than 60 days of petition filed by either party,

to avoid delays and harm to the victimized

children;

(7) The sole fact that a decision relating to custody

has been given in or is entitled to recognition in

India shall not be a ground for refusing to return

a child, but the judicial or administrative

authorities of India may take account of the

reasons for that decision in applying these

Guidelines;

(8) An application to make arrangements for

organizing or securing the effective exercise of

rights of access may be presented to the High

Court in the same way as an application for the

return of a child

GROUNDS

A. Because it is well-known that the term “person” in Article

14 and 21 includes not only citizens of India but also

foreign nationals and non-resident Indians in India

[Chairman, Railway Board Versus Chandrima Das,

(2000) 2 SCC 465]. The petitioners, citizens and

residents of USA have approached the Hon’ble Court for

seeking remedies for violation of their right to life under


33

Article 21 of and right to equality before law under Article

14 of the Constitution of India.

B. Because India does not have guidelines or any framework

to deal with cases of International Parental Child

Abduction. There is a complete void in the law for cases

dealing with IPCA. This has been acknowledged by the

Law Commission of India on multiple occasions and also

the Government of India. The only recourse for the

distressed parent is to approach the Courts and engage in

cumbersome and time-consuming litigation, including

through a habeas corpus petition in the writ courts. The

Hague Convention provides for establishing a Central

Authority in each country to provide assistance in

locating the child and if possible, a voluntary return of

the child. The lack of a platform such as the Authority

and other measures reduces access to an equitable

remedy for the left-behind parent. This disadvantage in

access to an equitable remedy is a violation of the right to

equality of the petitioners under Article 14.

C. The taking parent illegally takes the child away by either

violating existing custodial order or custodial rights of the

other parent due to operation of law. Children are taken

without the other parent's consent, and wrongfully

retained in a foreign country. Sometimes children are

taken with the consent of the left behind parent but are

not returned to their habitual residence and are illegally


34

retained in foreign country by the taking parent. This is a

form of child abuse, which disrupts and dislodges the

child from his/her habitual residence. In addition, it

causes tremendous psychological impact on the left-

behind parent. The child has a right to a safe and sound

environment at home while the parent has a right to

access the child both of which is denied when one parent

takes the child away without the other’s consent. In

Sumedha Nagpal v. State of Delhi, (2000) 9 SCC 745,

this Hon’ble has observed as follows:

“No decision by any court can restore the broken

home or give a child the care and protection of

both dutiful parents. No court welcomes such

problems or feels at ease in deciding them. But a

decision there must be, and it cannot be one

repugnant to normal concepts of family and

marriage. The basic unit of society is the family

and that marriage creates the most important

relation in life, which influences morality and

civilization of people, than any other institution.

During infancy and impressionable age, the care

and warmth of both the parents are required for

the welfare of the child.”

Further, this Hon’ble Court in Lakshmi Kant Pandey vs.

Union of India, (1984) 2 SCC 244 emphasized the

importance of a safe upbringing of a child with parents in

the following paragraph: (Para 6/ Pg. 249)

“That is why there is a growing realisation in

every part of the globe that children must be


35

brought up in an atmosphere of love and

affection and under the tender care and attention

of parents so that they may be able to attain full

emotional, intellectual and spiritual stability and

maturity and acquire self-confidence and self-

respect and a balanced view of life with full

appreciation and realization of the role which they

have to play in the nation building process without

which the nation cannot develop and attain real

prosperity because a large segment of the society

would then be left out of the developmental

process.”

D. Because the decision of this Hon’ble Court in Vishakha

v. State of Rajasthan, (1997) 6 SCC 241 has laid down

guidelines for sexual harassment of women in workplaces

in the absence of legislation. The Court also held that

international obligations must be read into the

Constitution to enlarge its meaning. This has been

derived from Article 51 of the Constitution which provides

that the State shall endeavor to foster respect for

international law and treaty obligations. It was observed

that:

“In the absence of domestic law occupying the

field, to formulate effective measures to check the

evil of sexual harassment of working women at all

work places, the contents of International

Conventions and norms are significant for the

purpose of interpretation of the guarantee of

gender equality, right to work with human dignity

in Articles 14, 15 19(1)(g) and 21 of the


36

Constitution and the safeguards against sexual

harassment implicit therein. Any International

Convention not inconsistent with the fundamental

rights and in harmony with its spirit must be read

into these provisions to enlarge the meaning and

content thereof, to promote the object of the

constitutional guarantee. This is implicit from

Article 51(c) and enabling power of the Parliament

to enact laws for implementing the International

Conventions and norms by virtue of Article 253

read with Entry 14 of the Union List in Seventh

Schedule of the Constitution.”

E. Because India is a signatory to The United Nations

Convention on the Rights of the Child (also known as

UNCRC) but has yet, taken no measures to implement

Article 11 of the Convention. The UN Committee on the

Rights of the Child recommends CRC States to become

Party to the 1980 Hague Convention as a means by which

CRC Article 11 may be practically implemented. In

Concluding Observations of the Committee on the Rights

of the Child: South Africa, 23/02/2000,

CRC/C/15/Add.122 (Concluding Observations/

Comments) it is stated as follows (Para. 40)

“The Committee notes the efforts of the State party

to address the situation of the sale, trafficking and

abduction of children, including the adoption of

the Hague Convention on Civil Aspects of

International Child Abduction, into domestic

legislation…”


37

F. Because there is a gap in the law, the Hon’ble Supreme

Court must give guidelines to implement the International

Conventions to which India is party. The framework as

prayed for by the Petitioners implements the following

specific provisions of the UNCRC:

a. Article 11 states “1. States Parties shall take

measures to combat the illicit transfer and

non-return of children abroad. 2. To this end,

States Parties shall promote the conclusion of

bilateral or multilateral agreements or

accession to existing agreements”

b. Article 35 states “States Parties shall take all

appropriate national, bilateral and

multilateral measures to prevent the

abduction, the sale of or traffic in children for

any purpose or in any form.”

c. Article 10.2 states “A child whose parents

reside in different States shall have the right

to maintain on a regular basis, save in

exceptional circumstances, personal relations

and direct contacts with both parents. [. . .]”

G. Because in the absence of legislation and other legal

framework, the Hon’ble Supreme Court is competent to

issue guidelines to fill the gap created by the lack of law.

This has been done by the Hon’ble Court in other

situations of conflict of laws in private international law

such as adoption. In the case of Laxmikant Pandey

(Supra), guidelines were given by the Court in the area of

inter-country adoptions for which no legislation existed in


38

India. The Hon’ble Supreme Court observed the necessity

of evolving normative and procedural safeguards in the

following words (Para 10/Pg. 264):

“10 It is therefore necessary to evolve normative

and procedural safeguards for ensuring that

the child goes into the right family which

would provide it warmth and affection of

family life and help it to grow and develop

physically, emotionally, intellectually and

spiritually. These safeguards we now proceed

to examine.”

After laying down the guidelines, it was further observed

(Para 24 /Pg. 279):

“24. These are the principles and norms which

must be observed and the procedure which

must be followed in giving a child in adoption

to foreign parents. If these principles and

norms are observed and this procedure is

followed, we have no doubt that the abuses to

which inter-country adoptions, if allowed

without any safeguards, may lend themselves

would be considerably reduced, if not

eliminated and the welfare of the child would

be protected and it would be able to find a

new home where it can grow in an

atmosphere of warmth and affection of family

life with full opportunities for physical

intellectual and spiritual development.”

H. Because the Hague Convention on Civil Aspects of

International Child Abduction was signed and came into


39

force in the year 1980. India is not a signatory to the

Convention. The Convention is based upon the notion

that the child should be promptly restored to his or her

country of habitual residence so a court there can

examine the merits of the custody dispute. This is

because the Court in the country where the child has

habitual residence is in a better position to consider the

child’s best interests. The Convention further provides for

a legal mechanism for countries to work together on child

abduction cases. It requires for the formation of a Central

Authority which is supposed to help locate abducted

children, help encourage amicable solutions to parental

abduction cases, and help process requests for return of

children within 6 (six) weeks of filing a return application.

In order to file an application for the child’s return,

certain conditions must be fulfilled including that the

child must be habitually resident in a Convention country

and must have been wrongfully removed or retained in

another Convention country. There are exceptions to a

country’s obligation to return the child when there is a

grave risk that the child would be exposed to physical or

psychological harm, or the child objects to returning, or if

returning would violate the human rights and freedoms of

the country where the child is held. Hence, the

Convention also considers welfare and best interest of the

child as a paramount consideration. The Women and


40

Child Development ministry issued a draft bill called

“The International Child Removal and Retention Bill,

2016” that would bring India in alignment with the

Hague Convention on the Civil Aspects of International

Child Abduction. However as of the date of filing this

petition, the Government of India has not formally

committed to passing this bill or signing the Hague Child

Abduction Convention.

I. Because in the case of Surinder Kaur Sandhu v.

Harbax Singh Sandhu, (1984) 3 SCC 698, the Hon’ble

Supreme Court exercised summary jurisdiction in

returning the minor children to the country where the

left-behind parent stayed. The most intimate contact

doctrine was evolved holding that a foreign court having

the most intimate contact and the closest concern with

the child would be better equipped and perhaps best

suited to appreciate the social and cultural milieu in

which the child has been brought up rather than a

domestic court. In the later case of Dhanwanti Joshi v.

Madhav Unde, (1998) 1 SCC 112 the Court changed its

view from the earlier position and observed that the order

of the foreign court will only be one of the facts to be

taken into consideration in child custody matters. It was

further held that the country whose jurisdiction the child

is brought to will consider the matter on merits

considering the welfare of the child. This approach was


41

followed in the case of Sarita Sharma v. Sushil

Sharma, (2000) 3 SCC 14 and in the subsequent case of

Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.

Again in 2010, in the case of Shilpa Aggarwal vs. Aviral

Mittal, (2010) 1 SCC 591, the Court noted that the

welfare of the child is of paramount importance, but

relied on the principle of comity of courts and sent the

child back to Britain so that the UK Courts may decide on

the merits of the custody.

J. In Ravi Chandran v. Union of India, (2010) 1 SCC

174, the Court directed return of the child to the

jurisdiction of the foreign court. The Court distinguished

between a summary and an elaborate enquiry but laid

down no factors to guide courts for when the same either

of them is to be conducted. It was held in the following

words:

“While considering whether a child should be

removed to the jurisdiction of the foreign court or

not, the domestic court may either conduct a

summary inquiry or an elaborate inquiry in this

regard. In the event the domestic court conducts a

summary inquiry, it would return the custody of

the child to the country from which the child was

removed unless such return could be shown to be

harmful to the child. In the event the domestic

court conducts an elaborate inquiry, the court

could go into the merits as to where the permanent

welfare of the child lay and ignore the order of the


42

foreign court or treat the fact of removal of the

child from another country as only one of the

circumstances.”

K. Because it has been recognized by this Hon’ble Court in

the case of Surya Vadanan vs. State of Tamil Nadu,

2015 5 SCC 450 that the objective is the best interest

and welfare of the child. It was also emphasized that the

best interests of the child and the comity of court

principle are contrasting to each other in the sense of

different principles that need to be applied in the facts of

a given case. It was held on facts of the case that the

foreign court has the closest concern with the child who

was sent back.

L. Because the above cases show that the Courts have not

followed a uniform policy to deal with such cases. The

Courts sometimes indulge into a summary inquiry and at

other times, an elaborate enquiry. Similarly, the principle

of comity of courts and most intimate court is relied on in

some cases while in others, the Courts decide on the

merits of the question of custody. The Law Commission of

India in its 218th Report recommended that India should

become a signatory to the Hague Convention and must

keep pace with the needs of the society. It further

observed that the Indian Courts while deciding cases have

not followed a uniform pattern. It was observed that:

(Para 2.15, Pg.20)


43

“It can be observed that, the Indian Courts while

deciding cases pertaining to minor children have

not followed a uniform pattern. There also is an

absence of progressive development in the subject.

If some matters are decided with prime

importance placed on the welfare of the child,

some are based on the technicalities of various

provisions of law and jurisdictional tiffs. The

reason cited for this can be the absence of any

law that governs this aspect. This only will affect

the condition both physical and emotional of the

child, who is caught in the fire of shattered

relationships.”

M. Because the guidelines that the Petitioners seek from the

Hon’ble Court only seek to define child abduction and

direct the judicial and administrative authority to deal

with such cases expeditiously, preferably within 6 (six)

weeks of filing a return application. It also provides that

the petition is to be filed at the High Court where the

child is being retained. In addition, it also provides for a

mechanism of application to be presented by the left-

behind parent to the High Court to return the child and to

secure effective rights of access to the child. The

Petitioner’s prayers are therefore, only furthering the

objective of best interests of the child and the parents

both, by providing for a legal mechanism for IPCA cases,

which has been absent in the Indian law.

N. Because the Hague Convention is consistent with the

principles in Guardians and Wards Act, 1890 which inter-


44

alia in Sections 9, 26 and 44 proscribes the illegal

removal of a child from a jurisdiction.

O. Because the current scenario prevailing in India is

causing grave sufferance to left behind parents in USA as

also in other jurisdictions and the continued abduction of

their children in India is causing the continued violation

of their Article 21 and Article 14 rights as also the

violation of these rights of the abducted children.

P. Any other ground that may be taken at the time of the

hearing with the Leave of the Hon’ble Court.

5. The Petitioners herein has not filed any other/similar

petition before this Hon’ble Court or before any other

Court seeking the same or similar relief.

PRAYER

Petitioner prays that this Hon’ble Court may be pleased to:

i. Issue a Writ, Order, or Direction in the nature of

Mandamus to Respondent No. 1 to 4, or issue any other

appropriate Writ, Order or Direction, in respect of the

petitioners regarding International Parental Child

Abduction to India, including but not limited to the

guidelines mentioned in Para 4 of this Writ Petition,

and/or.

ii. Pass such other orders as may be deemed fit in the facts

and circumstances of this case.

AND FOR THIS ACT OF KINDNESS THE APPLICANT AS IN DUTY BOUND SHALL EVER PRAY.

Filed By:

Place: New Delhi SHADAN FARASAT

Filed On: 29.04.2017 ADVOCATE FOR PETITIONERS


bar & bench () · america since 2011. petitioner no. 2 was married in december 2004 in india...

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