Siminder Kaur and Vaneet Singh have fought over custody of their son Anhad for almost two years, both in courts in India, where the separated couple are from, and in courts in the United States, where they now live.
Their battle dates back to 2015 when the couple left Anhad, then two years old, with Mr Singh's parents in the north Indian city of Mohali, returning to the US where they hoped to work on their marriage. Once they initiated divorce proceedings in 2016, however, Mr Singh refused to return Anhad to Ms Kaur, claiming that she was mentally ill and an alcoholic; in turn, she argued that he was physically abusive and had wrested Anhad from her.
But what started out as a family dispute has now taken on a much bigger shape. On Friday last week, India’s Supreme Court began to hear a petition filed by Ms Kaur, along with a father in a similar position and a US-based organisation called Bring Our Kids Home (BOKH), which is made up of roughly two dozen parents who claim children have been abducted by their spouses and taken to India.
The petition urges the court to frame guidelines to resolve such “abductions”, and calls upon the Indian government to join the Hague Convention on Child Abduction, an international treaty in force since 1983.
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The Convention, which aims to return children to the country from which they were taken and to ensure that custody disputes are dealt with in that country’s courts, has 98 countries as signatories. India isn’t among them, but a government-appointed committee is holding public hearings to make recommendations about joining the treaty.
“There’s a misconception that these children are being taken ‘back’ to India,” said one of BOKH’s founders, who asked to remain anonymous because his own litigation involving a child abducted by his wife is ongoing. “But most of these children are American-born. Their homes were always the US, never India.”
Such abduction cases are alleged worldwide. Last year, a woman in Australia was imprisoned after being charged with kidnapping her two children and taking them from her estranged husband. She was later released after being ordered by the court to pay compensation.
But although abduction cases are by no means exclusive to certain countries, nearly 23 per cent of the applications filed every year under the Hague Convention deal with children being taken out of the US.
Roughly 1,000 American children are “abducted” overseas by a parent annually, according to US state department statistics. In January 2016, the department had 83 open cases of reported abductions to India, 25 of which had been filed the previous year.
Of all the parents who take their children to other countries globally, nearly 70 per cent are women, according to Hague Convention statistics.
Several Indian lawyers representing mothers who have returned to India with their children after fleeing domestic abuse argue that The Hague Convention does not protect such women.
"Under the Convention, these women don't get to argue the merits of their case before they and their children are ordered back out of India," Suranya Aiyar, a lawyer in New Delhi, told The National. "They're asked to first go back and then make these arguments in the courts of the country that they left in the first place."
Such situations are fraught with danger and difficulty. Women may often be returning to a home where they have faced physical or emotional abuse. They may also not have the resources to fight lawsuits in the US, especially if their husbands or ex-husbands were the wage-earners in their families.
Mothers worry that through such lawsuits, the fathers of their children will impel US consular officials to pursue action in India, Ms Aiyar said.
“I’ve had mothers calling me, scared that the police will knock on their doors at any moment,” she said. “They aren’t even willing to be on a private email chain or a WhatsApp group, because they’re afraid any public exposure will result in their kids being taken from them.”
Under current Indian law, the only recourse for parents whose children have been taken to India is the filing of a lawsuit in Indian courts.
Ms Aiyar believes this is sufficient, saying: “We already have laws and mechanisms for such disputes.”
BOKH’s co-founder disagrees, however, saying that only a minority of cases of abducted children involve spousal violence.
“We aren’t condoning that, of course, but we have to see it as a separate issue,” he said. “There are plenty of organisations right here in the US where a person being subjected to abuse can go to seek help.”
Parents also flee to India knowing that litigation in courts there is likely to drag on for years, he said. “It makes it more likely for a judge to say at the end of it all that the kid has gotten accustomed to India and should stay there."
Anil Malhotra, a Chandigarh-based lawyer who has represented several parents overseas whose spouses have taken their children away to India, said an international platform like the Hague Convention was essential because the issue is international in scope.
At present, resolving disputes in multiple court systems becomes lengthy and expensive, harming the child’s welfare. “The present situation plays into the hands of the abducting parent,” Mr Malhotra said.
Ms Kaur too says in her petition to the Indian Supreme Court that the odds were stacked against her. Despite this, however, a US court has returned Anhad to Ms Kaur for the time being, even as her custody case continues. Mr Singh was threatened with arrest but Ms Kaur agreed to drop her charges against him if Anhad was returned to her.
Escorted by an FBI team, Ms Kaur met her son at the airport gate when he landed in the US earlier this year, and she picked him up as soon as she saw him. Her arms, she said in her petition to the Indian supreme court, grew sore from holding and carrying her son, “but that pain was the sweetest pain she [had] felt in a long time”.
