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Reports today suggest that India may well sign up to the Hague Conference on Private International Law shortly. Overseas Indian Affairs Minister Vayalar Ravi, in a press conference on the eve of the Pravasi Bharatiya Divas (the global conference for overseas Indians) to announce a bill to grant voting rights to non-resident Indians (NRIs), also stated that,

Steps are also being taken by the ministry to ensure that Indian women getting married to NRIs are not exploited or abused.

Mr Ravi said India was likely to join the Hague Conference on private international law, to:

protect the interests of Indian women.

There were already rumblings at the Indian Society of International Law Conference a few weeks ago that India were considering it. The Indian Government’s consultation on “failed and fraudulent marriages” between Indian women and overseas Indian men has proved controversial in recent past; the National Commission for Women [NCW] New Delhi proposed a draft Convention for such marriages, which recommended, inter alia, that:

  • Registration of marriage be made compulsory
  • Bilateral agreements for protection of such marriages be concluded between India and such other countries where the Indian Diaspora is in large numbers.
  • If the NRI husband has not become a citizen of the country, in which he resides, concerned Indian laws to apply irrespective of the place of the filling of the petition for dissolution of the marriage.
  • Government monitored conciliation process of settlement of matrimonial disputes be initiated.
  • Suppression of information regarding marital status by NRI grooms to be dealt with under criminal law and steps taken through extradition treaties wherever operational.

The matter was also discussed during Pravasi Bharatiya Divas 2005, with the general consensus being that:

  • There should be comprehensive legislation so that there is legal remedy available to such girls. Special courts without legislation would be futile.
  • Registration of marriages should be made compulsory in case of Overseas Indians. This will ensure compliance of conditions of a valid marriage. There will be complete proof of marriage and it would be a very strong deterrent for bigamous marriages.
  • If a person abandons his wife, he should forfeit his property.
  • Such instances may be made criminal offences.
  • Overseas citizenship of such a person should be forfeited.

Joining the Hague Conference may well help matters, but it isn’t exactly clear which Conventions will be adopted to alleviate the difficulties facing NRIs. The ISIL report suggests that the Child Abduction Convention is the focus, as it would help the “high incidence of child removal” to and from the UK, US and Canada, by “returning children to the country of their habitual residence by a mutually reciprocal international arrangement between countries.” The report suggests that there could be more: “if India signs some of The Hague Conventions…Recognition of Indian marriages and divorces and reciprocally similar foreign instances would come to an International agreement.” One wonders how much of that is sheer optimism, however.

Private International Law matters were discussed yesterday at the Pravasi Bharatiya Divas 2007, with representatives from the Indian Parliament, the Indian Society of International Law and the Minister for Law and Justice in attendance. It will be interesting to see what they make of it all.

Comments on this entry are closed.

  • Rakesh January 31, 2007, 10:43 pm

    Shri Vaya Ravi,

    I am currently studying some cases of separated/divorced parents of Indian origin.

    One such case involves a UK born child and mother wishes to take him on holiday to visit her family. But the father doubts that she will return back to UK although he does not have any solid reasons to back his case, its just a doubt. Mother has offered a mirror order to take place, she has also offered bond and parents in India have written to the Court in UK reassuring of her return.

    My questions to you are:

    1) Have there been cases where a child had been sent back to UK by Indian Courts? If so, under what Act?

    2) How else can the return of the Child be secured?

    Really appreciate your help.

    Regards,

    Rakesh

  • Chandra June 30, 2007, 3:09 pm

    I have been in similar situation where my wife (soon to be my ex-wife) wants to travel to India with child (our son 6 1/2 years old) when we have joint legal and physical custody with 50/50 timeshare.

    She attempted abduction and was stopped and was convicted for attempted child abduction!

    I have been advised by my lawyers that it is legally impossible to get child back once he goes to India and she goes and files for custody over there.

    The work around the problem is to have a custody order issued by court here to be issued by court in India and she gives a bond of at least US $200,000 if she does not come by promised date. This money to be used for filing case in India to bring the child back. Also, this agreement changes the custody and awards primary custody to me. Since this will be expensive process that is why the bond is in place. So, father can use wife’s own money to fight to get child back to USA and also get primary custody of child.

    I BELIEVE, this would be enough deterrent for mother to not commit such an act that she is legally on the wrong side, losses a chunk of money and is at risk of losing access to child.

    The concern I have is, how long does this take in courts in India….if it happens at all.

    The way court system is in India, it could take many years so I am not sure, the whole things is fool proof but still after speaking to multiple lawyers, this is the best I could get.

    I am available to answer any questions or discuss pros and cons with any other parent in similar situation.

  • Rahul February 2, 2008, 1:20 am

    Chandra, I am in a very similar situation. Me and my ex-wife are working out a very similar arrangement. I am skeptical about it, but I don’t seem to have much of a choice. I would like to get in touch with you and talk a further about this. Rahul

  • anitha August 18, 2008, 11:41 pm

    hi, Iam currently going through a divorce and my soon-to-be ex husband insists on taking both my kids to India for a couple of weeks to see his family. Earlier he had threatened to take our 7 year old son to India with him and has been asking for sole custody of our son for the last couple of months. Thanks for the information posted but I would like to keep in touch in case I need answers. I filed for divorse late April, and am dealing with a very vengeful and irrational man who just wants me out of the picture. Thanks. Anitha

  • RANJIT KAPUR March 22, 2009, 10:01 pm

    I am in asimilar problem. My wife took my daughter from USA to India and did not return. I have a full custody in USA and a divorce from the US court. The children are US citizents and I am a US citizen. my wife was a resident. She filed for divorce in India and she got guardianship in India? How can I get back my children to US? The Indian courts are slow and does not give visitation rights too. PLease advice.

  • Martin George March 27, 2009, 5:39 pm

    Legal advice is not available via this website. I recommend that you consult a solicitor who specialises in such matters.