Proactivity of government to amend outdated family laws is zero; parents removing children illegally from India: Anil Malhotra

India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, an international treaty that seeks the prompt return of children “abducted” from their country of habitual residence..As a result, children caught in the cross-fire of custody battles between warring parents are often removed from India unlawfully and remain untraceable..Last year, a Russian woman reportedly fled India via Nepal with a child she had given birth to with her Indian partner in 2020.Following the deterioration of the couple’s marriage, the woman approached the Supreme Court of India in 2023 seeking full custody of the child. The top court ordered a joint custody arrangement.In July 2025, the husband informed the Court that his wife had fled India with the child. Nearly a year later, the case drags on with no respite in sight for the father. Non-bailable warrants have been issued against the woman, a criminal investigation has been launched and diplomatic channels have been engaged, yet the woman and the child remain untraceable.While an Indian father now finds himself separated from his child, foreign parents have faced similar situations when their children were brought to India..Bar & Bench’s Sofi Ahsan recently interviewed Senior Advocate Anil Malhotra, a Chandigarh-based expert on transnational matrimonial disputes and international parental child abduction cases, about the legal vacuum in India.Malhotra, who was a member of the Justice Rajesh Bindal Committee, speaks about India’s reluctance to sign the Hague Convention, the complexities of its family laws and the challenges NRI parents face in resolving disputes..Edited excerpts follow..Sofi Ahsan (SA): How do you view the Indian family law system?.Anil Malhotra (AM): All our family laws are very outdated. The Hindu Marriage Act is of 1955. The Hindu Adoption and Maintenance Act is of 1956. The Hindu Minority and Guardianship Act is also of 1956, the Guardians and Wards Act is of 1890. The Family Courts Act, though new, is of 1984. Society has evolved, artificial intelligence is slowly creeping in all fields of life. Awareness is huge. Partners in marriages are economically independent. There is freedom, liberty and expansion of thought process. So, in this overall scenario, outdated laws are leading to more and more disputes that find no resolution. There is no mechanism of mediation, settlement or pre-marital dispute counseling. It exists on paper, but effectively, going to a marriage counsellor or going for mediation or settlement is highly ineffective. See Australia, even Dubai, England and Canada. In most jurisdictions, there is a mandatory pre-marital conflict dispute resolution. There are lawyers for children, independent lawyers. Matters are not litigated, matters are attempted to be resolved. Differences are sought to be sorted out. In some jurisdictions, particularly in England, there is arbitration in family law matters, where the corpus is huge. In all high profile cases - see the Sanjay Kapur case – on the smallest of issues, there is litigation. After all, the daughter-in-law is fighting against the mother-in-law and another subsequent wife. There are children in the fray. Why should everything go to litigation? We don't have a dedicated family law Bar. We don't have a dedicated family judiciary. Practitioners at the district court level are also practitioners in every field of law. We have family courts, but the judges manning family courts are not trained, equipped or updated with the latest happenings in family law. Judicial academies were created to update, to educate, to refurbish, re-strengthen the different categories of judges, including family court judges...All this has led to a mess. .SA: Why isn’t the government taking any steps to remedy the situation?.AM: There have been repeated judgments and reports of the Law Commission to overhaul the family laws. The proactivity of the government to amend family laws is zero; family law is not a priority. It is not revenue earning and it is a law which perhaps is not good to create a momentum for votes. So it's a poor country cousin, neglected and ignored. I was an amicus in a matter for 12 years, in a case of a girl who was removed by an aunt to the UK in violation of a High Court order. We pursued it for 12 years but couldn't bring the girl back. The Central Bureau of Investigation (CBI) was involved. They went and said that the child could not be brought back. I gave a report, Justice [Rajive] Bhalla referred it to the government. The Law Commission gave a report, then the Justice Bindal committee was constituted. I was co-opted as a member with judges and government officers in the committee. We listened to people for almost 2-and-a-half years, and made a two-volume report. It suggested that there should be a bill and that we should sign the Hague Convention. Since 2018, nothing has happened. So the mess grows. Now in the area of child removal, because our system is slow, cumbersome and tedious, people have started removing children from India illegally..SA: What difficulties do foreigners and even those of Indian origin face in the Indian legal system?.AM: We do not follow what is called in most developed jurisdictions a mirror order regime. What is a mirror order? You bring in an order from a foreign court of competent jurisdiction to an Indian court and say implement or execute the order. We have a test under Section 13 of the Code of Civil Procedure, when foreign judgments are admissible. If it is contrary to principles of Indian law or it is against natural justice, we do not recognise it. If it is not on the merits of the case, that's another point. In matters of child custody, we determine the welfare of the child. Meaning? We do not implement a foreign court order just because a child removed from a foreign jurisdiction is to be brought back. We determine the welfare of the child afresh. We are a signatory to the United Nations Convention on the Rights of the Child (UNCRC). We have not signed the Hague Convention on Child Abduction. We have amended the Juvenile Justice Act. We have a definition of the "best interest of the child". So we go into it all over again. Now with all these complexities, litigation moves slowly. If the matter goes to the family court, it is taken in appeal to the High Court. Then it is taken on appeal to the Supreme Court. You can spend anything from 5 to 10 years. We seriously need to overhaul our laws. A judge at the family court level or the civil courts level is a creature of statute. He will follow the letter of law, he will not devise law or read in to law. That is the job of the constitutional court. If the letter of law is outdated, what can he do? In the High Court, in child custody matters, we follow the parens patriae jurisdiction. The High Court can pass any order but a family court cannot.We have 30 million people living abroad now out of a population of 1.4 billion. They have brought in new ideas, brought in new technologies. Indians have progressed on every hemisphere of the globe. They live in western countries. But the law is still lacking. I have started advising people to do settlements and family arrangements. No court fees, no litigation. You sit down on the table and settle and then go to family court for a mutual consent divorce. I tell this to most of the people living abroad – you dissolve everything there, drop a settlement and bring it to India. That settlement and the foreign court decree is incorporated in a petition under Section 13B of Hindu Marriage Act..SA: How have the courts in India dealt with these issues? What preventive measures could be taken to avoid cases like that of the Russian woman?.AM: I am currently doing a matter of such nature between a lady of a foreign nationality and a man of Indian origin living in a foreign jurisdiction. The man has to bring his daughter because she's very well-bonded with her grandparents in India. The couple are separated. They've already had a bitter dispute and resolved everything. So we've drawn up an agreement. Whenever the child comes to India, her passport is deposited with my associate in Delhi and when she goes back, it is returned.So you have to devise out-of-the-box solutions. For all these reports which I do as an expert for foreign jurisdictions, they ask me safeguards, preventive measures, enforcement measures. But if the court asks me whether there is an iron-clad guarantee that the child will come back, the answer is no. Because we determine the welfare of the child. We don't accept mirror orders because they are an anti-thesis to welfare jurisdiction. A foreign court order will be one of the considerations. Two things are happening. One, there is a lot of stereotyping between a man and a woman. Gender bias is inherent. And the second thing is that in a dispute relating to custody, the focus is more on parental rights and not on child rights. The parties want the court to decide who is a better mother or father or who is a better husband or wife. You are both bad husbands or bad wives. You're both excellent parents. The child is concerned with the parent, not with the husband or the wife. This is where we miss out a lot. Our litigation is designed to find faults with each other. The gender stereotyping in statutes has to go. Why is there not a protection for men under the Domestic Violence Act? Why should 498A IPC, 125 CrPC become a weapon of abuse? You have a problem with the family, you rope in the whole family. We are talking of equality of sexes, law should be balanced. And likewise, where there are laws favouring men, they need to be ironed out. .SA: Is it the time for India to sign the Hague Convention? Why do you think the government has been reluctant to move in this regard despite the recommendations?.AM: There are about 110 countries now which have signed the Convention. The countries abroad are looking at the relocation of children between fighting parents. We are still looking at whether to return or not to return. Look at the damage you do to the child, parental alienation, psychological imbalance, mentally disturbing the left-behind parent.We don't have an efficient mechanism to develop, to drum in the welfare of the child through the medium of the family courts or the High Court. So why not sign the Convention? Have a Central authority created under the Convention whose job will be to look into the matters and then pass on to the concerned High Court for a decision. .SA: So why is the government reluctant? .AM: The thinking is that we will lose control on decision-making authorities and we will not be able to decide on the principle of the welfare of the child. I don't think that is the case because under Article 13 of the Convention, you can decline to return the children if the child refuses, if there is risk of domestic violence, grave abuse. We have incorporated exceptions in the bill. So I think the fear is imaginary. If we have to grow, if we have to progress, if we have to commit to free movement, we have to sign the Convention and put a law in place.Today, no foreign court allows a child to come to India when there is a matrimonial dispute between the parties. So what is happening? The relocation of children is not permitted. Parents are removing children wrongfully to India. The reverse is also happening. Parents come to India and want to seek the return of their child. It doesn't happen. The matter prolongs and you smuggle out the child illegally. This practice too has become a two-way street. Is it good? No. Look at the damage to the child. The child gets cut off from one parent.Why can't we sign [the Convention], if Pakistan can sign it, Sri Lanka can sign it, Hong Kong can sign it? We have maximum migration all over the globe. We have cosmopolitan families. We have Indians marrying foreigners. There is diverse complexity all over. Today, India is becoming a haven for parking removed children. Why? Because there is no system of law to actually implement and decide effectively in an expeditious period of time. How many people can go in the habeas corpus field? How many can afford it? How many persons can come from abroad and sit in India for 6 months, 1 year, 2 years, to fight this litigation? .SA: What alternatives could we have in place to solve this problem? .AM: The 'best interest of the child' definition has been picked up from the reading of the entire UNCRC. It's a very wholesome definition. And if a judge goes by it strictly, it will help...There is a lot of varying interpretation depending on the thinking of a judge. .SA: What is the general perception in foreign jurisdictions about Indian adjudication in such matters?.AM: The reservation to send children to India is very strong now. No immigration authority, no government authority, social welfare, childcare authorities. Very, very great reluctance..SA: Any word of advice for lawyers practicing in the field of family law?.AM: Develop family law as an exclusive profession. Specialise. We have a very good young generation – sharp, engineered, equipped and talented. Don't be a jack of all trades, it will take time. Do research. Find out-of-the-box solutions. Use your mental faculties, develop them to find solutions by reading between the lines. The unethical use of multiplying litigation is a bad practice. It should be discouraged. You ought not to have different forums to be able to discuss different matters.We need a major overhaul of family law, more specialised family law practitioners, a dedicated family law judiciary and a lot of education to the judiciary in the judicial academies.