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 around 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.
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 the 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 the framework of domestic law including the 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 the 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 also 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 the Bombay HC challenging the legality of the arrest warrant and sought stay of the RCN. The HC refused to tinker with the RCN. Lakhani then appealed against the HC order in SC.
After deciding that the RCN could not be a ground for Lakhani’s arrest, the SC left the adjudication of the dispute between the husband and wife over the custody of their daughter to the Bombay HC, where the appeal is pending.