What is the issue ?
- The Justice Rajesh Bindal Committee was set up in 2017 to suggest a model legislation to safeguard the interest of the child as well those of the parents when an NRI (Non Resident Indian) marriage goes sour and one of the parents flees from one country to another with the child.
What you should know about the issue before reading further :
Hague Convention on the Civil Aspects of International Child Abduction
About the convention :
Multilateral treaty developed by the Hague Conference on Private International Law (HCCH)
It provides an expeditious method to return a child internationally abducted by a parent from one member country to another.
Drafted to ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence.
Applies only to children under the age of 16.
As of September 2017, 98 states are party to the convention. In 2016, Philippines and Pakistan acceded to the convention
India is not a party to the convention.
Why is India not a party to the convention yet ?
- In 2016, the government had decided not to be a signatory to the treaty on the ground that it can be detrimental to the interest of the women fleeing an abusive marriage.
Important recommendations made by the Justice Rajesh Bindal Committee :
- Committee has questioned one of the basic principles of the Hague Convention by arguing that the return of the child to his or her habitual residence may not necessarily be in the best interest of the child.
- It adds that returning a child to the place of habitual residence may result in sending the child to an inharmonious setup as well as overlook the fact that a mother is the primary caregiver of the child.
- The panel has also prepared a draft law to safeguard the interest of the children, as well as those of the parents, particularly mothers.
- The proposed legislation lays down nine exceptions under which a child will not be returned to the country of habitual residence.
- Conditions for refusal are best interest of the child, domestic violence or mental or physical cruelty or harassment against the parent who fled with the child, the parent claiming the return of the child was not exercising the custody rights at the time of removal, and if there is a grave risk that the child would be exposed to physical or psychological harm.
- The panel has also emphasised the importance of the “Indian family system” in ensuring the best interest of the child.
- The report also requires the setting up of an InterCountry Parental Child Removal Disputes Resolution Authority, which will be the nodal body to decide on the custody of the child, mediate between the warring parties, as well as order the return of the child to the country of habitual residence.