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No extradition of
NRIs in kidnap cases
WSN Network
New Delhi: One
has heard this too often. An NRI father or mother accusing the other
partner of kidnapping their children back to India in breach of a
foreign decree and cocking a snook at the consequent Red Corner
Notice issued by Interpol.
Is not the
CBI, the Interpol partner in India, obliged to act upon such a Red
Corner Notice (RCN), arrest the offending parent and extradite
him/her to the foreign country to face trial there?
No, says the
Supreme Court which would appear as a virtual thumbs up for the
parent who slips out of the foreign country with the child and lands
in familiar shores where the litigation takes years before being
finally adjudicated.
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India's
Supreme Court has said the CBI, the Interpol partner in India,
is not obliged to act upon any a Red Corner Notice against an
NRI in case of a child custody fight and is under no obligation
to arrest the offending person and extradite him/her to the
foreign country to face trial there. |
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Reversing the
Bombay high court’s arrest order on the basis of an Interpol RCN
issued against one B J Lakhani who allegedly came to India from US
with his daughter despite a restrain order from a Clayton County
Magistrate Court in Georgia, a Bench comprising Justices S B Sinha
and M K Sharma on Friday said an Interpol RCN could not be a ground
for arrest. In absence of an extradition request from the US or a
foreign country, there could be no arrest merely on the basis of an
Interpol RCN, the Bench said accepting a clear stand from the
ministry of external affairs (MEA).
The chances
of extradition of the kidnapping parent is slimmer even when the
foreign country places such a request as the SC recorded the MEA’s
stand that “kidnapping in case of matrimonial dispute per se is not
considered to be an extraditable offence”. Thus, the aggrieved
parent has to come to India to pursue her remedies before the
judiciary.
Coming to Lakhani’s rescue, MEA said, “Even violation of an order passed by
the court of competent jurisdiction in US being punishable for six
months only, Lakhani could not be extradited for commission of the
said offence.”
MEA said that
on receipt of an RCN, it was not the practice to arrest the person
immediately but only to trace him. “The consideration of the
question of arrest and extradition would be within framework of
domestic law including Indian Extradition Act and the Extradition
Treaty with the requesting country,” it said.
Lakhani had
married H Thakker on April 6, 2002 at Mumbai. After marriage, they
moved to
California
where their daughter was born in April 2003. Alleging matrimonial
harassment, Thakker moved courts in
USA and sought
divorce. During pendency of the proceedings, the family court at
Massachusetts passed an order of temporary custody of the child,
restrain and abuse prevention order in her favour.
In April
2006, Lakhani allegedly forged Thakker’s consent to take the
daughter back to
India.
After he left, she complained to the police alleging abduction and
an arrest warrant was issued. The trial court also passed a decree
of divorce and custody of the child in her favour in May 2006. She
moved a family court in Mumbai in May 2007, which allowed her
custody of the child. Lakhani appealed in the HC which stayed the
trial court order.
Meanwhile, the
Atlanta
city police and American court issued warrant of arrest against
Lakhani, which was transmitted through Interpol to the Indian
government. Lakhani moved Bombay HC challenging the legality of the
arrest warrant and sought stay of the RCN. The HC refused to tinker
with RCN. Lakhani then appealed against HC order in SC.
After
deciding that RCN could not be a ground for arrest, SC left the
adjudication of the dispute between the husband and wife over
custody of their daughter to Bombay HC, where the appeal is pending.
12
August 2009
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