Certain divorce and child custody laws in India, both as written and applied, tend to favor women. Moreover, Indian divorce law is framed in a way that gives Indian courts exclusive and ongoing jurisdiction over overseas Indian couples, as long as one spouse claims Indian domicile.
Additionally, there is no explicit statutory residency requirement for determining jurisdiction over divorce or child custody cases in India. Unfortunately, in contentious divorces, such laws can be misused by one party to their advantage.
A particularly disturbing incident that brought national attention to this issue occurred last month when Atul Subhash, a 34-year-old man embroiled in a bitter divorce and child custody dispute, took his own life. What shook the nation was his dying declaration—an 80-minute-long video he recorded before his suicide, in which he described how his soon-to-be ex-wife was using Indian laws to harass him and his family. He also shared how he was unable to see his young child unless he met her excessive financial demands. In the video, Atul expressed his frustration with corruption in the legal system and the lack of sensitivity within the courts.
Even more troubling is the Indian government’s refusal to address these legal issues. Whether due to political motivations, bureaucratic delays, or a misguided sense of gender justice, India has failed to make necessary changes.
Under Indian law, certain criminal offenses such as dowry harassment, domestic violence, or sexual abuse can only be filed by women. Additionally, while many developed legal systems have moved away from the “tender years doctrine,” which gives preferential custody of young children to mothers, India still adheres to this principle.
For Indian husbands living abroad with their families (or for non-Indian husbands of Indian women), these issues become even more complicated, as they find themselves navigating two distinct legal systems. The outcome often negatively affects their careers, finances, mental and physical health, and even their immigration status.
Even if a couple has lived abroad for many years, is employed there, has children, owns property, or holds citizenship, Indian law can still assert jurisdiction over their divorce based on the couple’s religious affiliation and their Indian marriage. This situation encourages “forum shopping,” where one party may try to use a more favorable jurisdiction.
Similarly, child custody issues are also complicated, as India does not have a clear residency requirement for determining where a child’s “home” is, nor does it recognize international parental child abduction as a crime. Despite international pressure, India has refused to sign the Hague Abduction Convention of 1980, citing concerns about potential gender-based violence against mothers fleeing domestic abuse. As a result, if an Indian-origin mother takes her child to India without the father’s consent, the left-behind father has few legal avenues to hold her accountable. If the mother then accuses the father of serious criminal charges like dowry harassment, domestic violence, or sexual abuse, the father may face immediate arrest upon arrival in India. This can lead to him being forced to navigate a hostile legal system remotely, which can take years to resolve. Even if a resolution is eventually reached, the father’s chances of having normal, unsupervised visitation with his child are slim.
This parallel divorce and custody jurisdiction creates a false sense of security for the mother, allowing her to take the law into her own hands. However, it also leaves her with few long-term financial prospects. By abducting the child, she commits a felony, and in the process, may forfeit what she would have been entitled to in a foreign divorce court. By the time she secures an Indian financial order, she is often in contempt of the foreign court, making it difficult to enforce that order.
Given that the Indian diaspora is the world’s largest and the second-largest immigrant group in the US, it is crucial for the Indian government to reconsider how its family laws are affecting people of Indian origin and their foreign spouses abroad.