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The Indian Penal Code defines the offence of kidnapping as the taking of a minor from the “lawful guardian” without the consent of such guardian.
“Lawful guardian” is defined as any person who is lawfully entrusted with the care or custody of a minor. This articulation poses a problem when the child is taken away from one parent by the other, particularly in international custody disputes.
What motivates a parent to take away a child from the other parent?
Mothers plead domestic violence and broken marriages as the reason for fleeing their marriages to return to their parents in India. Being caregivers, they flee with their children. But fathers who take the child away from the mother rarely can plead domestic violence perpetrated by their wives, or state that they are the primary caregivers to the children. Without such pleas, abductions by fathers seem to reflect more the father’s resentment of the mother’s custody over the child rather than concern for the child.
In analysing such a situation, we must ask: Are men and women equally placed to be treated by the law from the lens of formal equality? Or do they require a different legal approach from the lens of substantive equality, which adjudicates a matter acknowledging and making allowances for the inherently unequal positions of husbands and wives in a family unit?
Unequal gender dynamics at play
The formal equality approach in matters of gender has been criticised by scholars in the seminal paper on the subject (“Towards Equality”— A 1974 report on the status of women in India) as intensifying existing inequalities and advising that the substantive equality approach is the only way for justice to be served.
My proposition is that keeping in mind the essentially unequal gendered dynamics at play, there cannot be an immediate equivalence in treating as kidnapping, the acts of a mother fleeing with her child and that of a father taking the child away from the mother by force.
The social dynamics of these situations must first be unpacked to assess the fairness of the legal tools employed to deal with them. It is pinned on gender and the social responses to the duty and value of a mother, and the social respect for the power of the father.
A flawed approach
We begin with the term that describes the act. The common usage is ‘parental abduction’, which is misleading as it deflects from the complexity of the issue that lies at the intersection of criminal justice, family law and children’s rights. The approach to unravel the social dynamics has to be powered by law, tempered by liberal values that seek to apply the law in a meaningful manner and thus will respond to the difference between the woman fleeing with her children and the man who takes the child away from the caregiving mother.
This is where justice ‘flows’ rather than is imposed as a concrete structure of rules, to be applied rigidly. The fluid approach must be for the very real concern of violence against the primary caregiver, which is the mother (the rule, and the exception too rare). But the structured rule-book approach for the abduction by the non-caregiver (almost invariably the father) patently obvious to assert power, as an act of vindictiveness or in service to an injured ego that could not get its way.
Wives are often victims of an intrinsically unequal socio-economic environment where coercive control is exercised through capital, and a wife is perceived as subordinate to the husband. After a long struggle, a woman gathers the courage to exit the marriage.
This act of the fleeing mother from the foreign country to return with her children to her parental country has created an indignant howl from the ‘left behind’ parents (invariably fathers) with no introspection that the caregiver of the children needed to protect herself.
The outrage from the fathers has resounded and been amplified by the states that the woman flees from. This is the reaction of a patriarchal society and demonstrates the patriarchy of the states and their treaties that are governed by norms in the same vein that minimise the autonomy of the woman.
Take the Hague Convention on the Civil Aspects of International Child Abduction (‘Hague Convention’). What began as an international collaboration to protect children and their caregiving mothers from abducting fathers has now morphed into an instrument of oppression to pin women in unhappy situations in lands that are alien to them.
The result is that mothers continue to be caregivers so that the child continues to reside in the place of ‘habitual residence’ even when that residence is detrimental to her own psychological, emotional and economic interests. It is important to mention that parents can easier support a daughter in their home rather than provide financial help in a foreign land.
I, thus, have no qualms in arguing that it is the woman who becomes the chattel in the marriage and her rights and needs become subordinate to all else – easily sacrificed at the altar of the wealth and consequent lifestyle that the father is able to offer to the child in a developed world, which perceives itself as superior to the rest. And, we in the developing world don’t seem to disagree with that perception.
India has faced pressure to sign the Hague Convention from the USA and various other countries but has refused. Its decision to not sign the Convention has been guided by the reality of failed “NRI marriages” forcing women to return home with their children.
In my opinion, the perception of that foreign country is that if the child is their citizen, the act of the mother taking a citizen away is almost an act against the state. This narcissistic behaviour is not unusual in international political behaviour but over children, seems particularly abhorrent.
This smugness is common in the West (the source of the treaty) as being superior and regrettably, it has unconsciously influenced the Indian psyche as can be seen in various orders returning the child to the foreign jurisdiction.
The judicial justifications for orders returning the children to the countries they came from are based on the principles of: a) “comity of courts” b) child being a foreign citizen and c) “welfare of the child”.
The first has proven to be an eyewash because comity has not been reciprocated strongly enough by the courts of the “West” or the “First World” for it to be an effective principle, for our courts sometimes tend to jettison the welfare of the child to the principle of comity;
As for the matter of citizenship, it is relevant only if the citizen is a parcel with the postal address of their country, and no other rights, which thankfully, is not true so far.
As regards welfare, it is often viewed from the principle of the child benefiting from opportunities available in the First World in contrast to India. Here is where the care of the mother is eliminated in favour of perceived opportunities.
Moreover, this approach is predicated on the unspoken expectation that the mother will invariably follow the child. This too is the expectation of patriarchy, which views mothers to be shaped by the deep socialisation of defining their context by the child.
In this approach when the mothers do return, we must ask: Can the welfare of the child reside in a place where the primary caregiver is unsafe and threatened? When the letter of law is followed strictly, its spirit is arguably killed.
Need for the evolution of just law
The act of the fleeing mothers has, in some cases, led to ‘revenge kidnapping’ by the father in a primitive eye-for-an-eye rule.
In recent years, there have been instances where wealthy fathers have removed their children from India, in contemptuous disregard for Indian court orders. Arguments raised in such “revenge kidnappings” custody matters demand equal treatment with women who remove their children from foreign countries and shelter in India.
However, such an argument overlooks the important point made earlier that the women flee to their parents in India from domestic violence abroad while the removal of the child from the mothers has never been justified as fleeing from domestic violence.
While India is not a signatory to the Hague Convention, Indian courts, in various decisions, still rule for the children to return, while also holding that they obviously cannot force the woman to return. However, the mother will inevitably follow her child, due to centuries-old patriarchal socialisation of women that they must not leave their child. If she were to not go with her child then she will then live with the debilitating guilt (again, a result of social conditioning) of having left her child.
Once the child has been taken out of India, filing a habeas corpus before the constitutional courts leads to protracted litigation. Further, the legal definition of kidnapping creates more hurdles in activating criminal proceedings. The legal and diplomatic remedies are severely restricted once the minor has been removed from the Indian territory.
A limited relief which may be available to the parent from whom the child is taken is in case there is a court order outlining a custody arrangement. In this situation (depending on the wording of the court order), the court assumes parens patriae jurisdiction over the child as it is legally authorised to give consent for taking the minor outside India.
This limited remedy must be seen in the context of familial as well as judicial responses that encourage informal settlement of matrimonial disputes outside the court. In fact, custody orders and access arrangements that are often loosely worded because of the desire to adopt a collaborative approach now become the Achilles heel in the case of the left-behind parent who had wanted the collaborative approach for resolution and also because any other approach incurs severe criticism from the bench as “destructive litigiousness” that defeats the spirit of family law.
The courts want to maintain “peace” and request the parties to “move on with your lives”. While the settlement of custody disputes without lengthy and bitter litigation is certainly desirable, it must also be recognised that such settlements often take place in the face of gender imbalance that is perpetuated in the default settings of “ status quo” equality. However, the brutal reality of the woman’s oppressed circumstances – finacially, emotionally and even in social and state structures – where her care giving is not counted as important to be included in the welfare of the child is ignored.
The resultant informal arrangements that do not create a legal record of the rights and duties of parties are thus misused and the consequent damage is irretrievable to the party with no or certainly lesser financial and muscle power which is the mothers and the children, who actually would do better with continuity of caregiving but now are severely and irreversibly emotionally scarred.
We cannot now lose time on “arrangements” and vocabulary we deem as ‘aesthetic’ while the underlying reality is of a clear power imbalance. As familial setups change in an increasingly globalised world, the law must evolve to resolve the disputes created on the breakdown of relationships. However, such an evolution of law must be rooted in the values of substantive equality, the welfare of children and a sensitive view of caregiving.
Note: The author would like to thank Shreiya Maheshwari and Devina Malaviya for their assistance in writing this piece.
Malavika Rajkotia is a divorce lawyer in Delhi with over three decades’ experience in the area of family and property law.