Parental Child Abduction and the Extraordinary Application of s.188 CrPC.

By Samarth Srivastava

INTRODUCTION

In today’s globalised world, Non-Resident Indians (NRIs; Indian citizens who work overseas on a visa and are actually Indian citizens) and Persons of Indian Origin (PIOs; people who live overseas and are Indians by descent) form an important part of the economic and social prosperity of many countries across the globe. Furthermore, in 2016, it was reported that more than 30 million Indians who live in different countries across the world have cross-border matrimonial relations. However, sometimes such relationships fail and the couple files for divorce. When such a situation arises, oftentimes the children born out of these marriages are also dragged into the fight. In the middle of this bitter tussle, it may sometimes happen that the child is abducted by either one of his parents and taken to another country, in flagrant abuse of the other parent’s rights. In such cases, the children are generally taken to the abducting parent’s home country, which may have a different culture to which he or she is used to. They also lose all contact with the other parent, which may have a negative impact on the child’s mental health in the long run.

When such a situation arises, the Courts have to assume a paternal role and decide what is in the best interests of the child, giving due respect to the rights of each parent. At the same time, they also have the responsibility of punishing the abductor. In such a situation, the provisions of Section 188 of the Code of Criminal Procedure (CrPC), 1973, acquire pertinence. It provides for an offence which is committed outside India, either by Indians abroad or foreigners who break the law on any ship or aircraft which is registered in India or elsewhere,   to be dealt with as if the crime was committed on Indian soil, provided that no such enquiry can be conducted without the previous sanction of the Central Government. In this article, the author shall throw some light on the issues surrounding international parental child abduction, and whether Section 188 of the CrPC can be used to file a complaint against a parent who has abducted his/her child and fled to India or abroad, without compromising the safety of people who are fleeing their abusive spouses and seeking protection.

PARENTAL CHILD ABDUCTION: INDIA AND THE HAGUE CONVENTION

On 25^th October 1980, in order to tackle such issues, several countries came together to sign the Hague Convention on Civil Aspects of International Child Abduction (hereafter ‘the Convention’). The object of the Convention is to protect children from the negative effects which they might suffer from by being wrongfully removed from their home country, by ensuring that the child is promptly returned to his home environment and that rights to custody and access of a parent in one contracting country are protected in the other country. Under Article 3 of the Convention, the removal of a child to another country by a parent is considered to be unlawful, if the parent takes the child, in violation of the rights of the other parent, or any other “institution situated in the country in which the child was originally resident”. The Convention also mandates that a special authority be set up in every contracting country, which will solely deal with such matters. As of 2020, 101 countries have joined this Convention.

However, in spite of being subjected to extraordinary pressure, India hasn’t signed the Convention. The argument usually given for not signing the Convention has been that it may have the negative effect of subjecting women who are fleeing domestic violence to legal harassment. The government also cites cultural differences, saying that the reason why First-World countries are coercing India to sign this treaty is that it is compatible with their values of gender justice, under which the rights of a father are equal to that of a mother, but the Convention does not take into account the reality of Indian marriages, where the mother usually plays a larger role in the rearing of a child than the father. Another point of difference is Article 4 of the Convention, which mandates that the Convention will apply upon every child who is habitually resident in a Contracting State. According to the government, this is not in the best interest of a mother and her child who are fleeing abuse. However, despite these issues, India has pledged to work with different foreign governments in order to resolve matters pertaining to Indian couples.

PROSECUTION OF PARENTAL CHILD ABDUCTION

Section 4 of the Indian Penal Code (IPC) mandates that the provisions of the IPC shall apply to offences committed by Indians abroad. The essential scheme behind Section 188 is to ensure that the accused is unable to take a plea of lack of jurisdiction if he or she is caught committing a crime outside the country.[1] If any victim, who has suffered at the hands of the accused wants to file a complaint before a court in India, under §188, the victim only needs to show that, first, the offence was committed by an Indian citizen; second, that the crime was committed abroad or on international waters; and third, the offence was one for which the accused can be prosecuted in India.[2] If all three conditions are met, a complaint can be filed before any court in India, which the victim feels convenient to approach.[3] However, to address the question of whether a parent can file a complaint before a magistrate in India against another parent for abducting their child, we need to ascertain few things:  First, who can be included in the category of an Indian citizen and when can a complaint is filed before a Court? Second, can such an act committed by a parent be placed under either kidnapping or abduction as defined under the IPC and if not, should there be a law that penalizes such conduct?  Third, what sort of protection must be there to protect women and children fleeing domestic abuse?

In Fatima Bibi Ahmed Patel v. State of Gujarat and another, it was held by the Supreme Court that if the accused is not an Indian citizen and the crime was committed overseas, then none of the conditions given under Section 4 of the IPC and 188 of the CrPC has been met, therefore, the magistrate cannot take cognizance of such a complaint without the sanction of the Central Government. In this case, the appellant, who was staying in India on a visa, was a Mauritian citizen. The respondent had filed a complaint against her under Section 498-A of the IPC, but she was a citizen of Kuwait; therefore the order of the magistrate which took cognizance of the complaint was invalid. Furthermore, in Ajay Agarwal v. Union of India, it was held by the Court that when a series of offences arise from the same transaction, and some of them were committed outside India and others within India, a magistrate can take cognizance of the latter without requiring any sanction from the Central Government. Therefore, if the victim chooses to file a complaint against the accused in an Indian court, he can do it only if an offence was committed by an Indian citizen in a foreign country, or if part of the offence arose in India, or by a foreign national who has committed an offence under the IPC, but it must be part of a transaction which arose in India.

To answer the question of who is an Indian citizen, Article 5 of the Constitution of India provides that citizenship can be granted on three grounds: by birth, by descent or by application. Furthermore, Section 7A-D of the Citizenship Act, 1955 also talk about Overseas Citizens of India (OCIs). Under the OCI scheme, the Central Government can grant NRIs and PIOs the status of overseas citizens of India on application. Under this scheme, they can enjoy rights, such as a multiple-entry lifelong visa and parity with NRIs when it comes to commercial and educational facilities. They also enjoy all the rights available to Indian citizens, except those which are mentioned in Section 7B. Therefore, if a parent holding the designation of either NRI or OCI getting divorced abroad, abducts his child and flees to India, or if he or she is getting divorced in India and flees abroad, a complaint can be filed before any court in India, and the magistrate can take cognizance of such a complaint, although the trial cannot start without the sanction of the Central Government.

To answer the second issue, although the act of a parent of taking away his or her child and moving to another country in violation of the rights of the other parent, cannot be classified as kidnapping, he/she can still be prosecuted. In common-law jurisdictions like Singapore and the United Kingdom (U.K.), it is already the law. In theory, a parent cannot kidnap his own child because under the law kidnapping is an offence of taking the child away from the lawful guardianship of the parent without the parent’s consent; therefore it follows that a parent cannot kidnap his or her own child. However, as aforementioned, such acts do negatively affect a child’s mental well-being, and therefore they should be punished. Recognizing this quandary, Singapore passed Section 126(3)-(5) of the Woman’s Charter, which mandates that any person who takes a child out of Singapore, who is the subject of an order of custody, except with the written consent of both the parents or the leave of the Court, can be punished with one-year imprisonment and a $5000 fine. Furthermore, under Section 131, the Court may issue an injunction, on application by father or mother, restraining the other parent from taking the child out of Singapore, where there is a custody agreement in place or matrimonial proceedings are pending. Similar laws have also been enacted in other countries, such as Section 13 of the Children’s Act, 1989 in the U.K., and the Parental Abduction Act of 1993 in the United States. If a similar law is enacted in India, or introduced in the IPC through an amendment, then a parent who kidnaps their child and brings him to India can be prosecuted because such an offence would then be classified as a continuing offence and under Section 472 of the CrPC, a fresh period of limitation shall start at every moment during which such offence continues. Therefore, the parent whose rights have been violated can file a complaint before a magistrate under Section 188 of the CrPC, read with Section 4 of the IPC.

With respect to the issue of the protection of women and children fleeing abuse, Japan is an excellent example for us to follow. In Japan, the authorities can refuse an application to return the child to his place of residence, if there exists a grave risk that the woman and child have been subjected to abuse. During return proceedings, which are conducted in Family Courts, the Courts are required to put the child’s interests first, and the child has to right to intervene in these proceedings. The child is also required to go through routine psychological monitoring, and it is mandated that a psychologist be present during court proceedings, in order to observe the behaviour of the parties and the child. In my view, a similar system can be set up in India, under which the burden of proof should be on the applicant, and decision on ‘habitual place of residence’ can be taken by keeping in view domestic violence.

CONCLUSION

Although we have made substantial progress concerning child rights in India, our Courts and policing systems are still fettered by the notion that the parents always do what is right for his or her child, and therefore the law must intervene only when absolutely necessary. This notion interferes in the growth of the law, and does not allow the latter to fully appreciate and protect the interests of the child, and penalize the parents for violating their responsibilities towards their children. Therefore, the government must resolve these issues and allow the law to evolve with changing times, by introducing a penal provision to punish parental child abduction, with safeguards in place for women and children fleeing violence, which would deter parents from resorting to such tactics during divorce proceedings.

[The author is a second-year student at the West Bengal National University of Juridical Sciences, Kolkata.]

[1]Sudipto Sarkar, The Code of Criminal Procedure, (Vol. 1, 11^th Edition, LexisNexis 2015) 988.

[2] Id., at 988.

[3]  Id.