9th August,2010
To,
Hon’ble Smt. Pratibha Patil,
President of India,
Rashtrapati Bhawan, New Delhi – 110 004
Hon’ble Shri Mohammad Hamid Ansari
Vice President of India,
Room No. 208, Parliament House Annexure,
New Delhi – 110 001
Hon’ble Dr. Manmohan Singh,
Prime Minister of India,
Room NO. 152, South Block,
New Delhi – 110 001
Hon’ble Mr. M. Veerappa Moily
Ministry of Law and Justice,
Room No. 402A,
Wing Shastri B,
New Delhi – 110 001
Hon’ble Shri Kapil Sibal
Ministry for Human Resource Development,
Room No. 301, C wing, Shastri Bhavan,
New Delhi – 110 001
Hon’ble Smt. Krishna Tirath
Ministry of Women and Child Right Development
Shastri Bhavan,
New Delhi – 110 001
Hon’ble Mr. Mukul Wasnik,
Ministry of Social Justice & Empowerment
Room No. 250, A wing, Shastri Bhawan,
New Delhi – 110 001
Respected Madam / Sir,
This is to bring to your notice, that in 1992, more particularly on 19.11.1992, we the Nation have ratified articles and resolution passed and convention on the Rights of the Child more particularly adopted by General Assembly of the United Nations bearing Ref. No. A/RES/44/25 of 20-11-1989. Thereafter in 2005 we have passed an Act, The Commission for protection of Child Rights Act 2005, appointing child right commission to look into the matter relating to child rights.
Under the said convention all the signatory Nations have assured international community that they shall be implementing the articles of the said convention and shall play role in improving condition of the children of their Nation. Under the convention members / signatory state parties were bound to implement the rights of the children and for the purpose of convenience we are not reproducing the same but putting the same by way of attachment to this letter. Attached herewith is the copy of the said Resolution of the Child Rights Convention.
However, it has been seen that apart from appointment of commission to look into the said rights, we have done nothing to recognize or implement the said rights as guaranteed by us before international community. The entire articles have been attached herewith but certain facts needs to be highlighted which I am high lighting point by point: -
1. It has been seen that divorce has become very predominant in this Nation. Under threat of penal consequences the child is handed to one party without access to the other and consent terms is filed thereof without considering the rights of the child. The Courts of law without application of mind and without going into details of the custody have been endorsing these Consent Terms making them officio functus. It is only the will, fancies and desire of the parents which are considered and the fundamental rights of the child is never looked into by the Hon’ble Courts of law. The Court rarely looks into the right of the child to be brought up by the best parent and with a right to have access to the other parent and other family members. No parent has a right to renounce his or her duty in favour of the spouse and if done, the same is illegal and against the rights of the child.
2. The child of a very tender age does not know his/her rights and cannot decide is his/her welfare. It is duty of the Courts/ Legislature/ Parent and society to protect rights of the child, as well as to look into the welfare of the child and if need be the same has to be reviewed from time to time. Whenever a right is granted, a corresponding and equal responsibility is caste upon the state and also the judiciary to protect the same. The failure to do so by the state amounts to non fulfillment of requirement of a welfare state and non execution of the same by Courts amount to non adherence of duty cast upon a judge. Thus the state and judge becomes guilty of non performance of duty towards the child.
3. When the custody is transferred upon divorce no merits about the welfare or rights of child is taken into consideration and/or reviewed and/or evaluated by Courts of law and it is only the dictate of the parents which is enforced upon the child. If welfare of the child is with the particular spouse, then it is right of child to have welfare enforced through the said parent and the parent has no right to transfer the said duty cast upon him/her to any other person including the other divorcee spouse. The Court must review whether the custody has been transferred out of negligence, neglect or by threat and/or force. However, the same is never done. This fact can easily be verified by undergoing various divorce decree passed by the Court situated in different parts of this country, as the divorce decree passed therein generally does not provide even a single reason as to why the child should be given in the custody of the particular parent. Thus the Courts have avoided Justice and are only adjudicating upon matters.
4. The child has a right to know about not only parents but also the extended family from both parents and has right to love, affection and care of the extended family, more particularly grand parents. However, the same right is brutally violated even before the Courts of law and also at the hands of the police and law mechanism. This is in violation of Article 5 of the said convention.
5. Article 3 of the said convention cast the responsibility of the state to ensure that the child gets such protection and care as is necessary for his or her well being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. However, Legislature has failed to pass any act or establish any procedure or Courts for such matters. If a letter is recorded, the Child Right Commission will direct the same to be taken up by the parent ( as per convention there is no need of parent only to be concerned about the child and it is the duty of the state) u/s 6 of Hindu Minority and Guardianship Act. Thus the state fails to discharge its function as laid down in the articles.
6. Article 8 ensures that state shall respect the rights of the child to preserve its identity including nationality, name and family relations as recognized by law without lawful interference. However, today when the custody is transferred to the mother under gender biased laws like 498A and Domestic Violence under the threat of dire penal consequences, identity of that child is hijacked and child is deprived of the name and recognition of father. We have got substantial details of such children and it is prima facie evident that identity, names are being changed illegally and even the school and law in force aid such hijacking of the identity, which might lead the child to identity crises at a later stage in the life and same is also against the welfare of the child. Even the family Courts put very less or no weight to this aspect. When such hijacking of identity and identity crises is being created by one parent, the said parent is acting against the welfare of the child and in such cases the custody has to be transferred to the other parent unless it is proved that the same is against the interest of the child. Even if the welfare is equal then also the custody must be transferred from the parent who acts against the welfare of the child by hiding from the child the true identity and also depriving the child of the other parent and extended family as wrongdoer parent is guilty of murder / assault on the original identity of the child and violation of fundamental rights to life of the child and the said parent must be treated accordingly in law. It is today nothing but “legal terrorism” and apart from the spouse it is the child who is the victim of this terrorism and is an act of cruelty upon the child.
7. Article 9 states that parties must respect the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with both the parents on regular basis. However, in practical the same is never maintained and the Courts take their own sweet time and do not understand gravity of situation and at times show least interest as the same is not found in the statutes in operation in the Nation and International Law is beyond the understanding of Law and Judiciary of many occasion. Infact the reality is that if a judge avoids granting access to one of the parents and lingers the issue then he/she is even guilty of violation of rights of the child and/or aiding the same. Thus, the child goes unheard for years together. Unless a precedent is set holding a judge guilty (may not be punished but atleast must be put on remarks), the Judiciary will not expedite these matters. We wish that higher Judiciary suo moto takes up this issue and takes this stand in a very quick manner.
8. Unless precedents with regard to violation of rights of the child against the violating parent and judge (who keeps such matters pending and fail to decide) is set, the child of this nation cannot be secure. Unless the future is secure all developments and growth is meaningless as it shows incapability of this Nation to honour international commitments, to act as a welfare state and also to protect the fundamental rights of the speechless children of the Nation. We expect that atleast some judge shall take suo moto action and shall dispose it as a landmark precedent with regard to rights and also the time frame in which it is decided.
With this we request you to look into this aspect of the voice of voiceless i.e. children, who are the future of this Nation and necessary measures / steps be taken with regard to protecting the interest of these children. We call upon the state to implement the said rights and also other rights by codifying all the children laws in one enactment of “FAMILY, WOMEN AND CHILD PROTECTION ACT” and also transfer all criminal and civil provision in one single piece of legislation with regard to the family and child.
We the NGO have legal resources and sound people, who understand the gravity of situation and are willing to assist Government in formulating right policy with regard to the child rights and extend our full cooperation. We look forward to the esteemed Judicial members to take up such causes suo moto as stated earlier and establish the rights immediately and we assure them to provide data or an example case immediately.
Thanking you in anticipation.
Yours truly,
SIDDHARTH MURARKA
Convener
Copy to:
1. Chief Justice of India
2. Chief Justice Bombay High Court
3. Chief Justice Calcutta High Court
4. Chief Justice Madras High Court
5. Chief Justice Delhi High Court
6. Smt. Sonia Rajiv Gandhi
Media, Other NGO, Public
Encl : A/A
good work
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