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The article analysis the need to have a codified law for the rights of children relating to transnational inter-spousal disputes
- Today, many Indians live abroad, foreign nationals come to stay in India, and Indians who had earlier moved abroad are now moving back to India.
- Problems arise when children are caught in this migration, when one parent goes to another country, taking the child along, but without the permission of the other parent.
- There are several legal issues confronting the issue of transnational inter-spousal child removal.
- It is unfortunate that when a child is abducted by his or her own parent to India, while custody issues are pending determination in the courts of his or her habitual permanent residence abroad, there is little that local law enforcement agencies can do to remedy the situation.
- This is because there are no codified family laws or specific child custody laws under which these children can be returned to their homes in a foreign jurisdiction.
- An aggrieved parent with a foreign court order requiring return of the child finds no slot in the Indian legal system, wherein a wholesome statutory remedy can be invoked for effective relief.
- Regardless, the Indian legal system provides succour by invoking the habeas corpus writ. Bitter disputed custody battles requiring conventional evidence to be established fall under the outdated Guardians and Wards Act, 1890.
- Parents then have to seek resolution of rights of access, custody, guardianship and visitation as a last resort of the proof of their superior parental rights.
- This dilemma has now worsened with the converse also taking place, which means that children from India are also being abducted abroad and cannot be traced there or legally directed to be returned.
- When families get split across countries, conflicting child custody litigations are initiated under the separate legal systems of different nations.
- Ninety-four states are party to the Hague Convention on Civil Aspects of International Child Abduction, which desires “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access”.
- India is not one of them. The question of India’s accession to the Convention first came about in 2007, but reached no logical end. Meanwhile, in India, the Civil Aspects of International Child Abduction Bill, 2007, to secure the prompt return of wrongly removed or returned children, lapsed before reaching Parliament.
- Recently, the Ministry of Women and Child Development (MWCD) uploaded on its website a proposal to enact a draft of the Civil Aspects of International Child Abduction Bill, 2016.
- This was considered as it was imperative to have an enabling legislation in India before accession to the Hague Convention.
- The proposed Bill considers the removal to or the retention of a child in India to be wrongful if it is in breach of rights of custody attributed to a person, an institution, or any other body, either jointly or alone, at a place where the child was habitually resident immediately before the removal or retention.
- It further stipulates that the removal to or the retention in India of a child is to be considered wrongful where at the time of removal or retention those rights were actually exercised, either jointly or alone, by a person, an institution or any other body, or would have been so exercised, but for the removal or retention.
- The draft Bill was prepared following a reference made by the Punjab and Haryana High Court to the Law Commission of India to consider whether recommendations should be made for enacting a suitable law and for signing the Hague Convention.
- It is important in this context to look at the watershed verdict of the Supreme Court in Surya Vadanan v. State of Tamil Nadu (2015). The court ruled that:
- one, the principle of Comity of Courts and nations must be respected and the best interest of the child should apply;
- two, the principle of “first strike”, namely, whichever court is seized of the matter first, ought to have prerogative of jurisdiction in adjudicating the welfare of the child;
- three, the rule of Comity of Courts should not be jettisoned except for compelling special reasons to be recorded in writing by a domestic court;
- four, interlocutory orders of foreign courts of competent jurisdiction regarding child custody must be respected by domestic courts;
- five, an elaborate or summary enquiry by local courts when there is a pre-existing order of a competent foreign court must be based on reasons and not ordered as routine when a local court is seized of a child custody litigation;
- six, the nature and effect of a foreign court order, reasons for repatriation, moral, physical, social, cultural or psychological harm to the child, harm to the parent in the foreign country, and alacrity in moving a concerned foreign court must be considered before ordering return of a child to a foreign court.
- The above decision set at rest a string of precedents laid down by courts from time to time to evolve a consistent approach in multi-jurisdictional child custody disputes.
- However, law still needs to be codified. India’s accession to the Hague Convention would resolve the issue since it is based on the principle of reverting the situation to status quo ante.
- It is also based on the principle that the removed child ought to be promptly returned to his or her country of habitual residence to enable a court of that country to examine the merits of the custody dispute and thereupon award care and control in the child’s best interest.
- This is because the courts of the country where the child had permanent or habitual residence are considered to best determine the child’s interest.
Problems arise when children are caught in the migration, when one parent goes to another country, taking the child along, but without the permission of the other parent. In this context, the Ministry of Women and Child Development (MWCD) recently created a draft of the Civil Aspects of International Child Abduction Bill, 2016 to tackle this problem. Analyse the major features of the bill and suggest what other steps can be taken.
- Multiple problem arises due to migration of one parent.
- Outdated laws relating to that.
- Major features of the bill.
- Analysis of the features and further steps.
Vanbandhu Kalyan Yojana: An Attempt to Bring About Radical Changes in the Lives of Tribal People
Both Central and State Governments have been taking various initiatives to ensure socio-economic upliftment of the tribal population of the country and have been launching scores of schemes and programmes to bolster them. These efforts have brought about noticeable improvements and changes in the lives of tribal people in terms of various indices relating to health, literacy, livelihood etc. However, still a considerable gap in human development indices between Scheduled Tribes and other Social groups exists. Vanbandhu Kalyan Yojana (VKY) has been launched by The Government of India, Ministry of Tribal Affairs for the welfare of tribal population. VKY intends to create an enabling environment for outcome oriented and need based holistic development of the tribal people. This process aims to ensure that all the intended benefits of goods and services under various schemes/programmes of State as well as Central Governments actually reach the target groups by convergence of resources through appropriate institutional mechanism.
It covers all tribal people and the areas with tribal population across the country.
- Bridging infrastructure gaps with focus on quality
- Improving the quality of life in tribal areas
- Qualitative and sustainable employment for tribal families
- Improving the quality of education
- Protection of tribal culture and heritage
Components of Vanbandhu Kalyan Yojana
- Safe Drinking Water for all at doorsteps
- Qualitative & Sustainable Employment
- Accelerated Economic Development of tribal areas
- Health for all
- Quality Education & Higher Education
- Housing for all
- Urban development
- All Weather roads with connectivity to nearby towns/cities
- Universal Availability of Electricity
- Promotion of Sports in tribal areas
- Promotion and conservation of Tribal Cultural Heritage
- Irrigation facilities suited to the terrain
- Robust institutional mechanism. (ITDAs/ITDPs)
- Convergence of scattered resources and activities being undertaken under various components
- Empowerment of institutions meant for delivery of goods and services with adequate technical, administrative and financial powers such as Tribal Development Agency ( ITDA) , Tribal Welfare Departments as nodal Department, Integrated Tribal Development Projects (ITDPs) and creation of new ones where they so not exist.
They would be consistent with state specific interventions and the broad objectives based on the socio-economic indicators. For instance, a State with high literacy would focus on higher education and quality education to begin with, and ones with low literacy would centre upon 100% enrolment etc.
Action Taken by the Ministry of Tribal Affairs
- A national level brain- storming session was held on 13th December 2014 with experts, institutions, retired and serving civil servants to prepare national priorities and way forward.
- Livelihoods like horticulture, dairy development, have been given focus, and skills for teaching, hospitality, computer training, para-medics, eco-tourism, etc. have been advocated to address issue of employability and the overcome shortage of these personnel in tribal areas.
- Tribe wise literacy and other socio-economic indicators used as a tool for approval of projects.
- All the schemes of the Ministry have been brought in conformity with the VKY approach for tribal development.
- Language and cultural context are given due importance in design and implementation of programmes in education, socio-economic development and health. For instance, holidays in conformity with tribal festival, inclusion of tribal art and craft in scholarship etc.
- Held few rounds of consultations with the State and Central Government Ministries/Department on convergence of TSP resources for the desired outcomes
- A Project Appraisal Committee (PAC), headed by Secretary, MoTA with representative of the State, Internal Finance Division of the Ministry amongst other constituted which appraised and approved the projects of the State with the due convergence of TSP programmes.
- TRIs have been entrusted with the task of independent monitoring amongst other things.