Parental Child Kidnapping/Abduction Prevention Laws & Acts India

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Parental Child Kidnapping/Abduction Prevention Laws & Acts India

What does it mean to have legal custody of a child?

A parent with legal custody can make decisions about the child’s schooling, religious upbringing and medical care, for example. In many states, courts regularly award joint legal custody, which means that the decision-making is shared by both parents.

What is Considered Parental Kidnapping? 

A parent who does not have legal custody of a child can be convicted of kidnapping. When a parent takes a child without the other parent’s consent, it is considered parental kidnapping. States do not have a specific law “Parental Kidnapping,” but most states have arranged their general kidnapping laws to provide for the same type of offence

even if a parent took their child without the consent of the custodial parent. Whether or not the taking of a child by a parent is considered parental kidnapping, the court looks at three main factors, including:

  1. The legal status of the offending parent;
  2. If there are any existing court orders regarding custody; and
  3. The intent of the offending parent.

In order to convict you of parental kidnapping, the prosecution must prove the following elements:

  1. You maliciously took, enticed away, kept, withheld, or concealed the child from his or her lawful custodian who may be the other parent;
  2. The child was under the age of 18;
  3. You did not have the right to custody of the child and
  4. You intended to keep or detain his or her lawful custodian.

Natural Guardian

  • Section 6(a) of the Hindu Minority and Guardianship Act, 1956, states that the father is the natural guardian of the child, and after the father, it is the mother who would have rights over the child.
  • Section 6(a)provides, “(1) in case of a minor boy or unmarried minor girl, the natural guardian is the father, and after him, the mother; and (2) the custody of a minor who has not completed the age of five years shall ‘ordinarily’ be with the mother.”

In the case of Gita Hariharan v Reserve Bank of India (1999), the Constitutional validity of this legal provision (Section 6(a)) was challenged, stating that it violated the equality of sexes under Article 14 of the Constitution. The Supreme Court stated that the word ‘after’ does not mean that the mother is disentitled from being the natural guardian of the child during the lifetime of the father; it means that the mother steps in “in the absence of the father”. Absence could mean “temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise”.

The Gita Hariharan judgment does not adequately address the problem that Section 6(a) poses – it enforces the best interests of the child but deems the guardianship of the father as stronger.

  • When is it legal if a parent takes away a child from the other parent?
  • If you are married, and there is no court order of custody, it is legal for the other parent to take your child.
  • Or if you are divorced and the other parent has sole physical custody it is legal for them to take your child.
  • Physical custody is different from legal custody. If you have sole physical custody, the other parent may not take your child away from you.
  • When is it illegal if a  parent takes away the child from the other parent?
  •  
  • If you have sole physical custody, it is not legal for the other parent to take your child from you. Sometimes taking your child from you is a crime, like “parental kidnapping.
  • Physical custody is different from legal custody. If you have sole physical custody, the other parent may not take your child away from you.
  • After parenting time or visitation the other parent must bring your child back or let you pick up your child. The other parent must obey the parenting time order. If they do not bring your child back or let you pick up your child, even if you share legal custody, they violate the custody order. They may be guilty of a crime like “parental kidnapping” or “custodial interference.”

 

‘Since India does not recognise parental child abduction as an offence, it becomes a custody battle in courts here!!

 

But In the absence of proper laws a case of “abduction” by one parent, is treated as a case of a custody battle in India. If a country has signed the treaty, a court in the country where the child had been residing passes an order that a child is returned. The court in the country where the child has been brought to passes a mirror order. “This is not an order of custody. It just means that the child be taken back to the country of habitual residence where both parents may then file for custody,”

 

What is a Writ of Habeas Corpus…?

  • writ of habeas corpus (which literally means to “produce the body”) is a court order to a person or agency holding someone in custody (such as a warden) to deliver the imprisoned individual to the court issuing the order and to show a valid reason for that person’s detention.
  • A habeas corpus petition is usually filed in cases of illegal detention. The court can direct that a person, who is in the illegal custody of another person, be produced before it. Habeas corpus has been used to secure production of persons who have been illegally detained in prison or even in cases where parents in cases of child custody move the court seeking that their daughter who has eloped be trace
  • Illegal Detention –The Bombay high court  division bench of Justice Vijaya Kapse Tahilramani and Justice Anil Menon in one of its cases of Mumbai made the observation while hearing a habeas corpus petition that when  the child is  in the custody of his mother, it cannot be said to be a case of illegal detention,”

 

  • The maintainability of the writ of Habeas corpus 

Recently  In the case Manju  Yadav v. State of UP Allahabad High Court has examined the issue regarding the maintainability of writ of Habeas corpus when an order of competent court/magistrate court is in existence for giving the minor girl in the custody of father after she was recovered during the investigation upon an FIR lodged under Sections 363 and 366 IPC.

Conclusion 

“The writ of Habeas Corpus is a proper remedy on the part of one parent to recover a child from the other parent, either before or after the parents have been legally separated or divorced. Since the welfare of the child is the primary consideration in making an award for the custody of it, such an award may be made in a Habeas Corpus proceeding without reference to where the domicile of the parents may be.”

We also see from the decision of the Supreme Court reported in Manju Tiwari v. Rajendra Tiwari (AIR 1990 SC 1156) that a writ of Habeas Corpus has been issued with respect to the custody of minor children in the US between their parents. So, this is a case where we find that this Court can certainly exercise jurisdiction vested in it under Art.226 of the Constitution of India with respect to the issuance of a writ of Habeas Corpus, which the petitioner seeks for.

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