While it is hard to say with certainty why Indian policy makers and judiciary see the issue of IPCA differently, the answers range from cultural perceptions against parents propensity to commit abuse or crimes against children; strong gender-based protections (particularly for women); and assertion of sovereignty.
While each of these manifest in different ways, the end result is India has failed to recognize international parental child abduction as a crime and as such offers no policy solution. Taking parents rarely face consequences for their mal actions, while children and left behind parents suffer years of separation, emotional and financial trauma, and denial of justice.
Case in point, in an January 2014 news report in the Economic Times state; "India's is of the view that if India signs the pact, it would put Indian women married to non-resident Indians or foreign nationals to disadvantage in cases of divorces and legal battles over the custody of children, Indian government sources said. This is also one of the reasons why India has not signed a bilateral agreement with the US for cooperation in such cases, they said."
What is ironic about this argument, is that about 40% of child abductions to India from the U.S., that are reported to "Bring Our Kids Home", are perpetrated by fathers, many of whom have committed abuse in the Untied States and fled to India. Bindu Philips' twin boys were abducted by their father in 2008, after fleeing criminal prosecution in the United States. Bindu has claimed numerous instances of abuse by her ex-husband. Refer to the "News" section of our website for two video stories on Bindu's case. India's refusal to sign the Hague Convention, is directly resulting in left behind mothers (and fathers) being put at disadvantage when their children are abducted to India.
Indian policy makers are focusing too narrowly on the issue of "Indian women being abused", instead of focusing on the child abuse, resulting from the abrupt and illegal removal of children from the Untied States and other nations to India. India's narrow focus also contradicts studies by child experts (see Nancy Faulkner's paper) and India's own legal commitments under the UN Convention on the Rights of Children, which requires signatories like India, to prevent child abductions from their home countries and ensure children are not denied the right to be returned to their home countries. Further more, India's Law Commission in 2009 recommended that India accede to the Hague Convention, no progress has been made as of October 2015.
The Hague Convention on the Civil Aspects of International Parental Child Abductions (90+ nations are signatories), is designed to protect children from the trauma of parental child abductions, prevent forum shopping, and is not "anti-mothers" or for that matter "pro-fathers". The treaty provides for prompt return of abducted children to their countries of habitual residence and allowing local courts to make custody and related determinations. The fact that India is choosing to use "gender" as wedge issue, for its refusal to accede to Hague, is myopic at best and pandering to vested interests at worse.
India's assertion that "mothers are fleeing abuse" from U.S. and other nations, when they "return" to India, paints all fathers with a negative brush and worse assumes they are guilty of a accusations made by the taking mothers, to justify child abductions. Multiple news reports (see links below) of false domestic violence and IPC 498A (anti-dowry) cases by women in India have raised significant concern in the Judiciary & policy makers in New Delhi, as well as outrage in the general public.
In short, India's approach on DV & 498A essentially means, accused are guilty until proven innocent. These laws have become a weapon of harassment and intimidation for the left behind father and his family, who may or may not be living in India. In this context, India must recognize that those who abduct children, regardless of the taking parent's gender, should not benefit from their wrong doing. And India's primary concern should be to uphold the rule of law and respect International law on protection of children's rights.
Starting in March 2015, "Bring Our Kids Home" has approached Indian Embassy in Washington, DC on multiple occasions. While Embassy officials have heard our concerns and sympathized with our situation, there has been no substantive assistance provided to victimized parents and children. If India is serious about children's rights and its own treaty obligations (UN CRC), we expect proactive actions, coupled with urgency to give immediate relief to victims of this heinous crime, that separates children from their parent and families and alienates them from each other.
India's inaction on international parental child abductions for several decades, has essentially resulted in aiding and abetting abductors from around the world, jeopardizing rule of law and the future of our children. We encourage Indian officials to partner with us and other SMEs who understand the issue of parental child abductions and are focused on the best interest of children, to find a lasting and just solution.
Misuse of DV & IPC 498A:
India Today, March 2015
Times of India, March 2015
The Hindu, June 2015
Bangalore Mirror, October 2015
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