Certain divorce and child custody-related laws in India, as written and as applied, tend to favor women. Additionally, Indian divorce law is framed in such a manner that an Indian court retains exclusive and continuing jurisdiction over an overseas Indian couple, as long as one spouse claims to have an Indian domicile.

Notably, there is no express statutory residency requirement for establishing divorce or child custody jurisdiction in India. Unfortunately, during contentious divorces, such laws can be exploited, causing significant distress to the involved parties.

This issue gained national attention recently when Atul Subhash, a 34-year-old man embroiled in a messy divorce and child custody dispute, tragically ended his life. Atul’s dying declaration, an 80-minute video shared online, shocked the nation’s conscience. In a calm yet devastating tone, Atul recounted how his estranged wife was misusing Indian penal laws to harass him and his family. He lamented his inability to see his four-year-old child without acceding to her excessive monetary demands and expressed frustration over systemic corruption and judicial insensitivity.

The incident reignited debates about the inherent gender bias in Indian laws and the government’s reluctance to reform them. Whether due to vote bank politics, bureaucratic inertia, or a misplaced sense of gender justice, India has yet to address these pressing issues.

Indian statutory law provides certain criminal safeguards exclusively for women. Offences like dowry harassment, domestic violence, and sexual abuse are gender-specific under these laws. Similarly, India continues to uphold the “tender years doctrine,” granting preferential custody of young children to mothers—a concept largely abandoned by most developed legal systems.

For Indian husbands living abroad or non-Indian husbands married to Indian women, these challenges are compounded by navigating two distinct legal systems. Divorce and custody battles can affect every aspect of their lives, including parenting rights, finances, career plans, immigration status, and mental and physical well-being.

Even if a couple resides abroad, has employment there, raises children, acquires property, or attains citizenship or permanent residency, Indian courts often assert parallel divorce jurisdiction. This is based solely on their religion and the fact that they married in India, enabling forum shopping. Likewise, child custody jurisdiction can be established in India almost instantaneously. The lack of a defined residency requirement for a child to be considered domiciled in India, combined with India’s refusal to criminalize international parental child abduction, exacerbates the problem. Despite international pressure, India has not signed the Hague Abduction Convention of 1980, citing concerns over domestic violence against fleeing mothers.

As a result, if a mother of Indian origin removes a child to India from another country without the father’s consent, the father has limited recourse. The mother faces no legal repercussions in India for such actions, while the father may be barred from entering India if accused of serious criminal charges such as dowry harassment or domestic violence. Navigating the Indian legal system remotely can take years, with little likelihood of fair parenting rights. Visitation rights, if granted, are often sporadic, supervised, and difficult to exercise.

Paradoxically, this parallel jurisdiction often backfires on the fleeing parent. The mother may lose significant financial entitlements from a foreign divorce settlement and find herself in contempt of the foreign court. By the time she secures an Indian financial order, she is often unable to enforce it abroad due to her noncompliance with the foreign court’s directives.

Given that Indians constitute the world’s largest diaspora and the second-largest immigrant group in the United States, it is imperative for the Indian government to address how these family laws affect people of Indian origin and their foreign spouses. A balanced and comprehensive legal framework is essential to safeguard the interests of all parties involved while preventing misuse and promoting justice.