Inter country Adoption and Hague convention

Inter country Adoption and Hague convention

Introduction:

“One Child , One Teacher , One book , One pen can change the world”

– Malala Yousafzai

Children are the future custodian of our country. Thus it is our responsibility to take care of them . but we are living in a society where children are exploited and abused easily. To protect their rights, there are so many organization in worldwide namely UNICEF, Child Rights International Network, Defence for children International, Committee on the rights of child, Child rights and you and so on. According to International law, every human being below the age of 18 years unless the law , applicable to the child , majority is attained earlier.

Parenthood:

Parenthood means the state of being a parent. In India , a child was born and raised in a family and when it becomes adult , it takes the responsibility of the family. Indians always prevailed in their family Institution. But in western countries, when a child become adult, it takes the full freedom and liberty to take care of their own life. Current scenario of Indian society also changed accordingly. Children are given more freedom and with this freedom comes a lot of problems. Parents are under pressure to give everything to their children that they never had. In such circumstances , Parenthood becomes question. The lack of parenthood may leads the children to dark side of the society. The main reason for getting into marital relationship is to give each other the long time commitment and secondarily to procreate legitimate children and maintain them properly. Basically, child is young and weak. They are more vulnerable than the adults. So they need special attention. Parenting has many styles like emotional parenting, punishmental parenting, religious parenting etc., parenthood must change itself from one style to another according to their child age.

Child Rights in India:

The Constitution of India gave child rights in many of its provisions. It encompasses most rights included in the United Nations Convention of rights of the child as fundamental rights and directive principles of state policy.

Constitution guarantees child rights in following articles:

Article 21 A –  Right to free and compulsory elementary education for all children in the 6-14 year age group

Article 24  –   Right to be protected from any hazardous employment till the age of 14 years

Article 39(e)-  Right to be protected from being abused and forced by economic necessity to enter occupations unsuited to their age or strength

Article 39 (f)-  Right to equal opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and guaranteed protection of childhood and youth against exploitation and against moral and material abandonment

Article 45–    Right to early childhood care and education to all children until they complete the age of six years

Apart from this, Children also have rights as equal citizen of India, like Right to equality etc.,

Children (pledging of Labour) Act,1933 declares that agreement by parent or any guardian to labour the child below 15 years is illegal and void. Child labour (prohibition & Regulation) Act otherwise called CLPR Act 1986 prohibits employment of child in 18 occupational and 65 process. According to this act, child means any person below 14 years . Prohibition of Child marriage Act 2006 envisages preventing child marriage with enhanced punishments of rigorous Imprisonment for 2 years with fine of Rs.1 lakh. This Act defines Child means a male below 21 years and a female below 18 years. The Indian Penal Code punishes cheating, fraud , kidnapping, wrongful confinement, Criminal Intimidation , procuring minors , buying and selling of minors for Immoral purposes. There is no central legislation in India for banning corporal punishment in schools. Tamil nadu government banned corporal punishment in June 2003 through an amendment of rule 51 of the Tamil nadu educational rules prohibiting the infliction of mental and physical pain during corrective measures. There are so many special acts in India which protects and safeguard child rights.

Child in Aboard:

Marriage between Indian women from India and an Indian man residing in another country ( NRI- Non Resident Indian) either as Indian citizen or a citizen of that other country( when he would legally be a PIO- Person of Indian Origin) is generally called NRI marriage. In case of any harassment, she can report to police , other state authority, helpline, legal aid bodies, Indian embassy in that country. The ministry of external affairs of India under the leadership of Mrs.Sushma Swaraj made a very useful reforms about such Indian women and child right who faced problems in aboard. The MEA of India clearly says that NRI should register their marriage in India. In case of domestic violation against the Indian wife, Government of India warns cancellation of passport of husband. Indian government doesn’t want to make compromise in the rights of Indian children who are in aboard.

There may arise a question , if the wife  was harassed by her husband and in –laws and husband has given divorce to her by the foreign land law which is uncontested by her. Can she file a complaint against her husband in India?

Smt. Neeraja saraph vs Shri Jayant saraph:

In keeping with the choice of Hon’ble Supreme Court of India within the case of Smt. Neeraja Saraph vs. Shri Jayant Saraph4, wherever the court had advised the requirement to contemplate legislation safeguarding the interests of ladies. it’s advised 3 specific provisions particularly,

1) No wedding between associate degree NRI associate degreed an Indian lady, that has taken place in India, could also be annulled by a remote court

2) Provision could also be created for adequate support payment to the partner within the property of the husband each in India and abroad

3) The decree granted by Indian courts could also be created viable in foreign courts each on the principle of harmony and by getting in reciprocal agreements like section 4A of the Civil Procedure Code that makes a remote decree viable because it would are a decree elapsed the court. . If that they had youngsters WHO born in aboard, the kid will acquire domicile by birth. In such case if they get clash and find order suggests that , the guardianship kid|of kid becomes question!
Indian law prevails that child ought to be with mother, on the opposite hand the actual nation will demand its national just in case the husband claims the kid in foreign court. Case study: These are all unreal cases. All names are modified to guard Individual privacy. These cases are studied from Manavi’s file.

Hague Abduction Convention:

“ …the Best Interest of kid are to be a Primary Consideration” – Preamble
of Hague Convention It is a covenant, that came into force in 1983, protects children from unilateral removal by a parent and is supposed to ascertain procedures to confirm their prompt come to their state of habitual residence, besides securing protection for right of access  India isn’t a signer to the Convention, though ninety eight countries, as well as Pakistan and Ceylon. A committee got wind of by the union government to organize a report on the difficulty of intercountry parental kid abduction has questioned one in every of the fundamental principles of urban center Convention by tilt that the come of the kid to his or her habitual residence might not essentially be within the best interest of the kid. there’s large pressure on India from the U.S. to accede to urban center Convention on the Civil Aspects of International kid Abduction, that could be a multi-national pact that seeks to guard youngsters de jure removed by one in every of the fogeys from the custody of the opposite parent. The Justice Rajesh Bindal Committee was got wind of to recommend a model legislation to safeguard the interest of the kid additionally those of the fogeys once associate degree NRI (Non Resident Indian) wedding goes bitter and one in every of the fogeys flees from one country to a different with the kid. Once the Central government decides to set-up the Authority and frames a law on the difficulty, it’s expected to require a call on whether or not it ought to accede to urban center Convention. In 2016, the govt. had determined to not be a signer to the pact on the bottom that it is harmful to the interest of the ladies fleeing associate degree abusive marriages the govt. of India came up with the draft Protection of kids (Inter-Country Removal and Retention) Bill, 2016 seeking to deal with the difficulty, and therefore the Law Commission reviewed . “best interest of child” suggests that the idea for any call taken concerning the kid, to confirm fulfillment of his basic rights and three wants, identity, social well-being and physical, emotional and intellectual development.’ – Law Commission of India (Report no.263)

Formation of Hague convention:

The Hague Convention on the Civil Aspects of International kid Abduction or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on non-public International Law (HCCH).The Convention was ended twenty five October one980 and entered into force between the signatories on 1 Gregorian calendar month 1983.As of July 2019, there are one hundred and one parties to the Convention. The last state to accede to the Convention was Barbados in 2019. Problems on linguistic communication Hague convention:

It encompasses entirely Western ideals and notions on the problems of kid custody and guardianship. India is one in every of the main countries that has chosen to not become a celebration to the aforementioned Convention. many of us advocated that  to sign the convention so Indian origin kid in aboard will simply sent back to their motherland that’s India. but the quantity of Indian youngsters alienated from India to foreign countries is lesser, compared to the quantity of Indian-origin youngsters WHO are brought into India, by either of their folks, largely mothers, within the interest of protective the life, safety and security of such youngsters. as per the framework of urban center Convention, the requested state is predicted to stick to or accommodates such requests from the Requesting State, regardless of its own laws concerning kid abduction. on linguistic communication urban center Convention would mean bowing right down to foreign pressure and acceptive a remote interpretation of law that is contrary to as taken in India. his would additionally quantity to associate degree attack on the terribly sovereignty of India as associate degree freelance democratic nation. It additionally nullify Section thirteen of the Code of Civil Procedure, in up to now as foreign decrees/orders in kid abduction cases from getting Parties are involved.

Section thirteen of the Code of Civil Procedure: “A foreign judgment shall be conclusive on any matter thereby directly adjudicated upon between a similar parties, or between parties underneath whom they or any of them claim litigating underneath a similar title, except- (a) wherever it’s not been pronounced by a Court of competent jurisdiction; (b) wherever it’s not been given on the deserves of the case; (c) wherever it seems on the face of the proceedings to be based on associate degree incorrect read of jurisprudence or a refusal to acknowledge the law of Republic of India in cases during which such law is applicable; (d) wherever the proceedings during which the judgment was obtained square measure hostile natural justice; (e) wherever it’s been obtained by fraud; (f) wherever it sustains a claim
based on a breach of any law effective in India. The power granted to Indian Courts by and underneath Section thirteen of the Code of Civil Procedure, to look at and scrutinize foreign decrees so as to come to a decision whether or not or not they need to be dead in Republic of India, would be altogether invalidated within the event Republic of India were to sign ‘s Gravenhage Convention, because it stands at the present, in to date as cases referring to kid abduction square measure involved. India ought to create forceful amendments to Republic of Indian laws, like Section 361 of the Indian legal code, Section thirteen of the Code of Civil Procedure, many sections of the Hindu Minority and Guardianship Act etc., so as to sign ‘s Gravenhage convention. Amending Indian laws during this manner to bring them in line with western laws, supported western i.e alien concepts and values referring to family, personal relations etc., would mean bowing right down to
foreign pressure while not understanding and considering the Republic of Indian familial society

A Way Forward:

On analyzing the Indian reality and therefore the nature of Indian family traditions and family values, it’s not within the interests of individuals of Indian origin and of Indian voters, for Republic of India to sign ‘s Gravenhage Convention. There is no would like, no reason, no cause and no occasion for any foreign entity to impose alien concepts and values upon Indians, nor for the Indian government to succumb to pressure from anyone on this issue involving the welfare of Indian child.

Conclusion:

kid could be a bud, let it blossom as a flower with nutrition of rights, with fruits of freedom with care and a spotlight not solely from oldsters however conjointly from state underneath the auspices of the society. we’ve got to require measures for kid in aboard facing such issues. the most effective interest of kids is love that the kid needs a lot of. they’re the longer term Republic of India , our solely hope for a more robust future.

 

References:

• Kim Holt, Child protection ,2014 edition
• DD Basu, Constitution of India
• Ishani duttagupta, Economic times India
• Report no.263, Law commission of India
• India is home for our kids ( petition) www.change.org
• Mr.Jagriti Chandra, Inter-country child abduction
• The Hindu, May 05,2018
•  www.wikipedia.com
• A.D Rangarajan, broken families await legal solution
• The Hindu april 07, 2018
• Abandoned and divorced
• www.infochangeindia.org
• Mr.Jagadish babu , child protection and law
• www.vikaspedia.com
• www.spuwac.com
• Sociology:parenthood
• www.essaysauce.com
• Mr.Dinesh kumar, protection of child rights
• www.legalservice.com

 

Author: K Sangeetha,
Government law college, chengalpattu