Child custody battle strains Indo-German ties

New Delhi has been seeking the return of toddler Ariha Shah, but German authorities have refused to relent, citing strict legislation

German Federal Minister of Defense, Boris Pistorius, arrived in New Delhi from Indonesia on Monday for a four-day official visit to India amid a deepening diplomatic row between India and Germany over the custody of an Indian girl child, Ariha Shah. 

The German authorities took custody of Shah, whose parents are from Mumbai, in September 2021, when she was only seven months old. 

The baby was separated from her parents — Dhara and Bhavesh Shah, a software developer, who arrived in Germany in 2018 on a work visa — after she got accidentally hurt by her paternal grandmother. She had to be hospitalized because of an injury in the “external perineal area or the outer genital area”.

The mother, Dhara Shah, has dispelled doubts over the child's “accidental injuries”.

She told theprint.in, an Indian news website that  the toddler once slipped after an oil massage and struck her head on the counter, where her bathtub had been placed. On another occasion, Ariha was accidentally injured while playing without her diaper, which was left off for a few hours every evening due to allergies.

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The German authorities interpreted the child's injuries as a case of sexual harassment inflicted by her parents. 

The young Shah was placed under the care of German child services and has remained in foster care for over 20 months, as her parents’ repeated pleas for her release fell on deaf ears.

The parents have visitation rights once every 15-20 days, according to German law. Germany conducted an investigation against the parents regarding allegations of “child sexual abuse”. 

In February 2022, the criminal case against the parents was closed by the German police authorities and no charges were pressed against them. A hospital report also confirmed that the baby was not “sexually abused”.

Though the “sexual assault” charges were dropped against the parents, they are still accused of negligence. The Berlin Child Services also filed a civil custody case for the termination of parental rights. The legal proceedings have started in the case and a verdict is expected on June 15.

German law stipulates that if a child remains in foster care for two years, it cannot be returned to the parents, because the infant will be unable to cope with the new socio-cultural milieu. Shah is being prevented from a reunion with her parents on the grounds that she may suffer cultural shock due to a prolonged period of alienation.

Her custody battle has put Indo-German bilateral ties under stress. The issue was raised during the visit of German Foreign Minister, Annalena Baerbock, to New Delhi last December.

India’s career diplomat-turned-Foreign Minister Dr. Subrahmanyamm Jaishankar had raised Shah’s case with her German counterpart Baerbock during the latter’s India visit. Jaishankar had said that the child should live in her own linguistic, religious, cultural, and social environment.

Baerbock responded that the child’s well-being is very important to her. She said the German administration was aware that the cultural identity of each child should be taken care of by the “Youth Office” in Germany. 

In February, the baby’s plight grabbed the headlines again during German Chancellor Olaf Scholz’s two-day visit to India. India’s foreign secretary Vinay Mohan Kwatra had tried to clear the air regarding Shah’s custody case. 

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She had said the case was closely followed by New Delhi. "This is something of great sensitivity, something which we deeply care about, something on which our embassy has been in very close touch with the parents and the German authorities in trying to find a way forward," he had added.

On June 2, ahead of Pistorius’ visit, the Communist Party of India (Marxist), or CPI(M), Member of Parliament (MP), John Brittas and 58 of his colleagues from 19 political parties, including Jaya Bachchan, Hema Malini, Shashi Tharoor, Mahua Moitra, Dr Farooq Abdullah, Priyanka Chaturvedi and others, have jointly written a letter addressed to German Ambassador to India, Dr Phillip Ackerman, requesting an immediate repatriation of Ariha Shah to India. The signatories cited that though they respect German laws, they are pleading for the baby’s repatriation, since there are no criminal cases open against the parents.

India’s Ministry of External Affairs (MEA) spokesperson, Arindam Bagchi, emphasized on New Delhi’s sustained efforts for the return of the toddler. 

In a strong rebuttal to the German authorities, Bagchi claimed that “India has a robust child welfare and protection system…we remain committed to ensuring her return to India.”

Shah’s case is reminiscent of Sagarika Chakraborty’s case from 2011 who was then living in Norway with her husband and two young children, a two-and-a-half-year-old boy and a five-month-old girl. Her children were also taken away by the authorities and placed in Norwegian foster care. A recent movie titled, “Mrs Chatterjee Vs Norway”, with actress Rani Mukerji in the lead role, showed SagarikaChakraborty’s struggle to win back her children.