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Report No. 263

7. Initiatives of The Government of India

7.1 The recently drafted Indian Bill on International Parental Abduction is broadly in conformity with the Hague Convention, 1980 and mirrors its provisions. India is currently not a signatory to the Hague Convention, 1980. The Bill is an attempt to set the stage for India to sign the Convention.

  • The Bill provides for the constitution of a Central Authority.
  • A decision under the Hague Convention, 1980 concerning the return of the child is not a final determination on merits of the issue of custody.
  • It outlines the role of the Central authorities with regard to a child, who is removed to India, and from India to another Contracting State of the Hague Convention, 1980.
  • It lays down procedure for securing the return of a child and provides for the Central Authority to apply to the High Court for restoring custody of the child.
  • It empowers the Court to deny custody on certain grounds. It allows the Courts in India to recognise decisions of State of the 'habitual residence' of the child. It also states that the Indian Court that wants to disregard the interim/final order of the foreign court must record reasons for the same.

7.2 The Bill empowers Indian Courts to seek a decision from Central Authorities of the Contracting State from which the child was removed.

7.3 So far as the Indian law as reflected in the provision of the Guardians and Wards Act, 1890 (8 of 1890) are concerned, the issue of custody of a child, remains always open and does not attain finality as it is always being considered to be temporary order made in existing circumstances. With the changed conditions and circumstances, 11 including the passage of time, the Court may vary such an order, if, it is so necessary in the interests and welfare of the child. The doctrines of 'estoppel' and 'res judicata' have no application in such a case (vide Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090; and Dr. Ashish Ranjan v. Dr. Anupama Tandon, (2010) 14 SCC 274;)

Protection of Children (Inter-Country Removal and Retention) Bill, 2016 Back

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