An International Perspective on the Gender Biasedness of Indian Divorce and Custody Laws

by | Jan 7, 2025

An International Perspective on the Gender Biasedness of Indian Divorce and Custody Laws
By Stutee Nag*

Certain divorce and child custody-related laws in India, as written and as applied, favor women. Moreover, Indian divorce law is statutorily so worded that an Indian court will forever have exclusive and continuing jurisdiction over an overseas Indian couple, as long as one of the spouses claims to have an Indian domicile. Additionally, there is no express statutory residency requirement for establishing divorce or child custody jurisdiction in India. Unfortunately, during the course of a contentious divorce, such laws serve as added ammunition in the wrong hands.

In December 2024, the gender biasedness of such laws became the center of a national debate in India when Atul Subhash, a 34-year-old man, who was going through a messy divorce and child custody dispute, chose to end his life. What shook the nation’s conscience and the internet alike was his dying declaration. Right before committing suicide, Atul recorded and shared an 80-minute-long video to explain his reasons for this drastic step. In a hauntingly calm voice, Atul shared how his soon-to-be ex-wife was misusing Indian penal laws to harass him and his family, and that how he was not able to see his four-year-old child unless he met her excessive monetary demands. He expressed his frustration over corruption within the legal system and the insensitivity of the court. Atul’s pensive yet matter-of-factly demeanor as he conveyed his decision to end his life is chilling.

Even more disturbing is the Indian government’s reluctance to nix such laws. Whether it is the vote bank politics, excess red tape, or a misplaced sense of gender justice, India has failed to address these issues. As far as the Indian statutory law goes, certain criminal offenses concerning dowry harassment, domestic violence, or sexual abuse can only take place against women. Similarly, even though most developed legal systems
worldwide have abandoned the tender years doctrine, which provides preferential custody rights of a young child to the mother, India still abides by the concept.

For Indian husbands who have settled abroad with their families (or, for non Indian husbands of Indian women living abroad), such issues are further amplified because they find themselves navigating two distinct legal systems with entirely different sets of rules. Their entire lives, parenting prospects, finances, career plans, immigration status, and mental and physical health suffer simply because their marriage didn’t work out.

Irrespective of whether a couple has been living in a foreign country for years, is employed there, has given birth to and raised children there, has bought property there, or has even acquired citizenship or permanent resident status there, there will almost always be the possibility of a parallel divorce jurisdiction in India concerning such couples, simply based on their religion and the fact that they got married in India. Thus, even though a foreign court clearly has divorce jurisdiction over a couple, often, there will be a parallel divorce jurisdiction in India as well. This encourages forum shopping.

Similarly, and very strangely, a parallel child custody jurisdiction can be established in India almost overnight. It is because India does not have a defined residency requirement for a child to call India his home and because international parental child abduction is not an offense in India. Despite significant international pressure, India has purposely refused to sign the Hague Abduction Convention of 1980, citing concerns over alleged gendered domestic violence against fleeing Indian mothers. Thus, if a mother of Indian origin were to remove a child to India (from any other country in the world), without the knowledge or consent of the child’s father, there is simply nothing that the left-behind father can do to hold her responsible, primarily because (barring the limited use of a Habeas Corpus petition) no laws exist in India to protect his interests. If the mother were to then cause the father to be charged with several serious criminal charges in India, such as alleged dowry harassment, sexual abuse, or domestic violence, he would simply be prevented from setting foot in India for fear of an immediate arrest upon landing there. The father has to then remotely navigate an entirely hostile and, at times, corrupt legal system, which takes years to come to a resolution. Even then, chances are that he will likely never see his child again under normal parenting circumstances. If granted, visitation rights will be hard to exercise, highly supervised, and sporadic.

Unfortunately, this parallel divorce jurisdiction merely serves to provide the fleeing mother with a false sense of security. It encourages her to take the law into her own hands and leaves her with slim financial prospects for a secure future. Not only does she commit a felony by internationally abducting her child, but she likely also forfeits what she is legally entitled to upon divorce in the foreign country concerned. By the time she secures an Indian financial order, she is usually in contempt of the foreign court from where she abducted and subsequently failed to return the child and, thus, is unable to enforce such an order.

With Indians comprising the world’s largest diaspora and the second-largest immigrant group in the U.S., it is pertinent that the Indian government takes account of how the Indian family laws are impacting people of Indian origin or their foreign spouses abroad.

 

This article was previously published on Bar and Bench.

 

*Stutee Nag is an international family law expert and practitioner licensed to practice law in the State of New York and India. She has written extensively on international family law issues concerning India and the U.S. Her papers/articles have been published in the Journal of American Association of Matrimonial Lawyers (AAML), the Journal of the New York State Bar Association (NYSBA), the New York Law Journal (NYLJ), the Family Law Week (UK), Live Law (India), SCC Online (India), Bar and Bench (India), Super Lawyer (India) and more. She is a Fellow of the NYSBA (Family Law Section) 2024-25. She lives in the State of New Jersey with her husband and five-year-old son.

 

 

 

 

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