A new bill introduced by the United States Congress has created a kerfuffle in India. The eponymous “Bindu Philips and Devon Davenport International Child Abduction Return Act of 2017” refers to two parents both of whom allege that their kids were abducted by their spouses and taken to India and Brazil respectively and their custodies not handed back to them despite US court’s orders.

The draft legislation proposes economic punitive measures (removal of tariff benefits) for countries that violate US court orders to return abducted children caught in acrimonious transnational marriages.

The bill’s proponents point out that in 2016, 629 American children were taken from the US by one parent without the consent of the other often in direct violation of valid US court orders.

Such abductions, they add, also contravene The Hague Convention on the Civil Aspects of International Child Abduction.

The international treaty, acceded to by 97 countries, establishes procedures for the prompt return of children wrongfully retained or removed from their habitual residence by a parent.

Under the Convention’s rules, applicable to children under age 16, signatories must establish a central authority to trace unlawfully removed children and secure their return to their country of residence, irrespective of the country’s own laws on the issue.

In the absence of pressure from Washington, US lawmakers argue, the rate of return of children to the country has been an abysmal 16 per cent. This has resulted in abducted American children living in a foreign country deprived of half of their family and heritage as well as reportedly suffering from anxiety and other ailments.

The proposed law has ramifications for the sizeable demographic of over two million US-based Indians. More so because inter-parental child removal — by either parent — from one country to another is not defined in any Indian legislation.

In fact the Law Commission of India objects to the very use of the term “child abduction” as it feels the term, when used in the parental context, is misplaced as no parent can ‘abduct’ his or her own child.

Parents take away the child because “of the fear of losing his/her custody”, the Commission states — “such an abduction … is out of overwhelming love and affection and not to harm the child or achieve any other ulterior purpose”.

Criminal offence

Despite pressure from Washington, India has so far refused to sign The Hague Convention, a decision endorsed by Women and Child Development Minister Maneka Gandhi and the Ministry of External Affairs.

While parental child abduction is a criminal offence under the Indian Penal Code, because India is not a signatory to The Hague Convention, no foreign government can force the abducting parent or the Indian government to return such a child.

Signing The Hague Convention will also mean capitulating to western forces and accepting a foreign interpretation of law which contradicts the Indian one.

Indian policymakers and legal eagles feel that child custody conflicts are best decided by Indian courts after considering the cultural nuances and what’s best for the child.

Adhering to the Convention would be calamitous for Indian women trying to escape abusive marriages abroad with their children and returning to the safety of their homes in India.

Besides, India becoming a signatory to The Hague Convention will also not benefit its own citizens because instances of Indian children being taken away from India to a foreign country by either one of the child’s parents are few and far between.

Counterproductive move

The Law Commission notes that women involved in cross-jurisdictional divorces have to face additional challenges in the custody battle and that “the woman must not be put in a situation where she has to make the impossible choice between her children and putting up with a violent relationship in a foreign country.”

If the bill becomes law, it will jeopardise the interests of Indian mothers trying to break free of difficult marriages compelling them to return to the foreign country where the child was born, to fight for custody in possibly hostile conditions.

Mothers being charged or prosecuted in foreign lands in such episodes are not uncommon. A report by the Commission notes that 68 per cent of the parents who took their child away from the US were mothers, where 85 per cent of these mothers are the primary caregivers of their children across the globe.

When cross-country marriages crumble, courts must chart out a robust legal path by factoring in the sensitivities of all stakeholders.

Exercising authoritarian and coercive ways to punish mothers fleeing bad marriages, for their own and their kids’ safety, is a counterproductive move.

Neeta Lal, a New Delhi-based editor and senior journalist, has worked with some of India’s leading publications.