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New Legislation Required To Deal With Inter-Country Child Custody Cases: Chief Justice Khehar

Expressing concern over the future of children and their rights in bad marriages abroad and the challenges before Indian judiciary to handle such cases, Chief Justice of India (CJI) JS Khehar has said child right is vital and there has to be a new legislation to deal with inter-country custody cases.

“When the child custody fight transcends national boundaries, the welfare of the child suffers, as it gets difficult to decide. The battle line gets entangled in sovereign laws of the individual concerned nations. Even though the only question which arises is – which parent in which country will ensure the best interest of the child. But this question is not simple. It is a cultural question involving ways of life – to which the child is accustomed. It is also a sovereignty question – of the two concerned nations. And a legal question – depending on the concerned system of law, followed by the judicature, before which it arises”

Saying that the welfare of a child is paramount and his rights are vital consideration for courts, Justice Khehar supported the claim that India should ratify the Hague Convention, which deals with the issue of child custody of parents living abroad following a matrimonial discord.

“The Hague Convention, which at present has 95 signatories, aims to protect children from the harmful effects of international abduction by a parent, by encouraging the prompt return of the abducted child, to the country of habitual residence.  And to organize or secure, the effective rights of access to the child.  Custody and visitation matters, it is felt, should generally be decided by the proper court, in the country of the child’s habitual residence”

He was speaking while inaugurating a national seminar of the International Law Association in New Delhi.

Justice Khehar referred to various legislations and judgments of different courts and said last year, the Punjab and Haryana High Court had asked the Law Commission of India to submit its recommendations on the custody issue.

“In 2009, the Law Commission of India, headed by former Supreme Court Judge, had submitted a report recommending, that the government ratify the Hague Convention. In February 2016, the Punjab and Haryana High Court while dealing with a child custody issue, asked the Law Commission of India, to resubmit its recommendations to the Government, with its recommendation to sign the Hague Convention. Based on these recommendations, the Women and Child Development Ministry in June 2016 issued a draft of the Civil Aspects of International Child Abduction Bill, 2016 (and a notice on the bill, No. CW-I-31/59/2016-CW-I of June 22, 2016) which reflected the provisions of the Hague Convention, and would pave the way for India’s accession to it”.

“The Law Commission of India has also recently proposed some modifications in the above-mentioned Bill, and re-named as – “The Protection of Children (Inter-country Removal and Retention) Bill, 2016”. This Bill seeks to address the violation of custody, or access rights by providing for a full-fledged framework.  This Bill also provides for constitution of a Central Authority, which will have a major role in discovering the whereabouts of the removed/retained child, and in securing the return of the child, and also, in provisioning for legal aid.  It also proposes to empower the High Court to determine the issue of return of the child, despite lapse of sufficient time.  At the same time, on certain grounds – like objection by the child, or exposure of child to grave risk etc. the return of the child can be denied”

Supreme Court judge Justice AK Sikri also highlighted the child custody issue and appealed for a uniform law to deal with such delicate cases.

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