Report No. 263

8. Child Abduction Distinguished from Inter-Country Removal of Children

8.1 Child abduction is dealt with stringently by most countries; but 'abduction' of the child across borders by his or her own parent is governed by a rather arcane corpus of laws. The heterogeneity of rules applicable to cases traditionally qualified as "child abduction cases" at both the national and the supranational level, add to the complexity of the legal treatment of "parental child abductions".

8.2 'Abduction' is explained under section 362 of the Indian Penal Code, 1860 as an act compelling or taking away a person by deceitful means inducing him to go from any place. Abduction as such, is not simply an offence rather is an auxiliary act not punishable in itself, but when it is accompanied by an intention to commit another offence, it per se becomes punishable as an offence. In the case of 'parental abduction', these so-called 'abductors', are most of the times, loving parents. The child is taken away by a parent to any other place because of the fear of losing his/her custody i.e. such an abduction, as stated earlier, is out of overwhelming love and affection and not to harm the child or achieve any other ulterior purpose.

Therefore, the Hague Convention, 1980, although uses the word 'abduction', it is not intended as in an ordinary case of abduction under criminal jurisprudence. As such, the word 'abduction' within the Hague Convention, 1980, is to be considered as short hand for a more appropriate terminology, "wrongful removal or retention" which appears throughout in the text of the Hague Convention, 1980. Hence, at the outset, the Law Commission is of the Opinion that the word 'abduction' in the current Bill, be dispensed with.

8.3 Be that as it may, wrongful removal and retention not only causes serious prejudice to the other parent, but may have a serious impact on the over-all development of the child. More so, such wrongful removal and retention may be in utter disregard or in violation of the order of the competent court regarding custody of the child. In this backdrop, many countries have made such wrongful removal and retention a punishable offence. In United Kingdom, the Child Abduction Act, 1984 has very stringent provisions making such wrongful removal and retention, as an offence punishable with the imprisonment up to seven years.