Hague convention
Shaheeda Shaikh
(Querist) 16 May 2012
This query is : Resolved
Hello to all experts ,i am an Australian Citizen orgin from India ,i have been in Australia for 9 yrs ,i have a daughter aged 3 ,i wish or i shoud say i am dying to visit India with my daughter for the period of 4 weeks only ,her father has objected me taking her ,(he is orginally from India same like me and his parents are still in India ).i applied in court ,i have my daughters full custody ,he got see her only on weekends.Court wouldnt allow me either as Federal Magistrate Court says that because India is not a signatory of Hague Convention which relates to child abduction they will never allow me to travel with her to India .My daughter has got her grandparents ,uncle ,aunties and cousins .i am well settled in Australia i have got all the reasons to come back but my ex husband and the court does not agree only on the basis of hague convention. With my ex husband he is doing to harass me,his hatred towards my family is so much that is the reason he is stopping me to go to India and see my family ,his family is torturing my family in India and he is torturing me in Australia by trapping me not to go there.They say i can go but i will have to leave my daughter in Australia with him ,she has never lived with him .I have nbeen the primary carer and still i am ...can some one help me ??How do i ask Indian government to sign hague convention
ajay sethi
(Expert) 16 May 2012
you cant direct indian govt to sign hague convention
R.K Nanda
(Expert) 16 May 2012
No you cannot ask Indian govt. to sign HC.
You will have to take steps in ur case at ur own.
Adv.R.P.Chugh
(Expert) 16 May 2012
Dear Querist,
I have the following to opine :-
1. You can't ask the government to ratify - larger issues are involved in this, infact even Supreme Court cannot direct since signing of treaties is a purely executive function on which government has full discretion.
2. The Order of Australian court - refusing visit to India on ground of non ratification of convention is misconceived - the welfare of the child (considering child has stayed with you, is a girl of tender years requiring mother's care) is paramount, and not a possibility of you not turning back and no prospects of Hague Convention being applied to force child back - This should be no consideration at all.
3. Indian Courts have been very positive in this regard, instead of blind observance of Intl. Courts decisions they have given such matters independant consideration in the interest of child. There are latest SC decisions in this behalf.
4. If you plan to relocate to India then you can come with the child, and the courts in India would be supportive, they have observed in a recent case that the mother cannot be asked to choose between her career/life and the child and both can sustain together.
Feel free to talk !
Nadeem Qureshi
(Expert) 16 May 2012
Mr.Nanda is right, you can file an application before the Fadral magistarte, if the FM reject your application you can file an appeal before higher court.
feel free to call
Dr V. Nageswara Rao
(Expert) 17 May 2012
1. It is true that India is not a signatory to the Hague Convention on Child Abduction but Australia is.
2. There is also the Rights of Child Convention of 1989 to which both the countries are parties.
3.Under the 1989 Convention, the child has the inalienable right to the family which includes grand parents etc. The child has the right to visit the family and the country of its origin etc. Please invoke that convention.
4. I am presently dealing with subtantially similar case in Seattle, Washington State, USA. In that case the husband is in possession of the passport of the child and as the mother would not come to India leaving her daughter in USA, the husband is trying to make the mother a hostage. We argued in the Court there that it is not just a case of clash between the spouses but also involves the rights of the child under 1989 Convention and that the husband is making the child also a hostage. This argument went well with the Court.
5 God bless you and all the best.
Dr V. Nageswara Rao
(Expert) 17 May 2012
Of course, Indian Courts will not direct the Govt of India to sign or ratify any Convention. It is within the exclusive domain of the Executive.
Shonee Kapoor
(Expert) 18 May 2012
However, there has been instances where the Indian courts have followed the principal on equity, justice and good conscience.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Shaheeda Shaikh
(Querist) 18 May 2012
A very big Thank you all the kind and helpful expert ,i am asingle mum living on my own ,i work full time ,leave my daughter at child care so was unable to reply on time .Mr Sethi ,Mr Nanda ,Mr Chugh,Mr Qureshi thanks for valued opinions.i really appreciate it .Mr Ahmed Daud Girach i have gone thru the attached document ,my husband is exactly doing the same thing ,presenting india as the worst place in the world to the court in Australia.Dr Rao you have given me a hope ,can you please tell me more about this ,the case you have mentioned is exactly like mine ,he has got my daughters name on watchlist so that if she does not travel ,if i even to attempt to do that ,i would get arrested .can i call u Sir ,are you in India
Shaheeda Shaikh
(Querist) 18 May 2012
Dr Rao i need to speak to you ,would you be kind enough to present me too .
Shaheeda Shaikh
(Querist) 20 May 2012
Dr Rao ,i have been waiting for a chance to speak to you ,would you pls update your contact number
