Photo: A cut out of a family is being help up toward the sky, perpetual.fostering, CC BY 2.0
In July 2025, an Indian court was informed by a distressed father that his wife had allegedly fled the country with their child. Nearly a year later, despite the issuance of non-bailable warrants, the initiation of a criminal investigation, and efforts through diplomatic channels, both the woman and the child remain untraceable.
| Written by Anshika Chauhan |
The case highlights not only the emotional toll on the parent left behind but also the systemic challenges embedded within India’s family law framework particularly in cross-border custody disputes.
This case is not an isolated incident. Similar situations have affected foreign nationals whose children were brought to India by one parent, often leading to prolonged legal battles complicated by jurisdictional and legal inconsistencies. Such disputes have reignited debate over India’s stance on international child abduction treaties and the adequacy of its domestic family laws.
Legal expert Anil Malhotra, a member of the Justice Rajesh Bindal Committee, offers a critical perspective on the issue. According to Malhotra, the root of the problem lies in the outdated nature of India’s family law system, which has struggled to keep pace with evolving societal realities.
Outdated Legal Framework
India’s key family laws date back several decades. The Hindu Marriage Act was enacted in 1955, followed by the Hindu Adoption and Maintenance Act and the Hindu Minority and Guardianship Act in 1956. The Guardians and Wards Act, which governs child custody matters across communities, dates back even further to 1890. Although the Family Courts Act was introduced in 1984 to streamline dispute resolution, critics argue that it has not been sufficiently modernized to meet current demands.
Malhotra emphasizes that these laws were crafted in a vastly different social context. “Society has evolved significantly since the mid-20th century,” he notes. “Today, both partners in a marriage are often economically independent, and there is greater awareness, autonomy, and freedom in personal relationships. Yet the laws governing these relationships remain largely unchanged.”
This disconnect, he argues, has contributed to an increase in disputes that are difficult to resolve efficiently. As societal expectations shift, legal frameworks that fail to adapt can exacerbate conflicts rather than mitigate them.
Absence of Alternative Dispute Resolution Mechanisms
One of the key criticisms of India’s family law system is its heavy reliance on litigation. In contrast, many developed jurisdictions prioritize alternative dispute resolution (ADR) mechanisms such as mediation, arbitration, and pre-marital counseling.
Countries like Australia, the United Kingdom, Canada, and even the United Arab Emirates have introduced mandatory pre-litigation processes aimed at resolving family disputes amicably. These systems often include independent legal representation for children and structured mediation processes designed to minimize adversarial conflict.
“In many jurisdictions, disputes are not immediately taken to court,” Malhotra explains. “Instead, there is a strong emphasis on resolving differences through dialogue and structured negotiation. This reduces the emotional and financial burden on families, especially children.”
In England, for instance, family law arbitration has gained traction, particularly in high-value cases. Parties can opt for private arbitration, which is often faster and more flexible than traditional court proceedings.
India, however, has yet to fully integrate such mechanisms into its family law system. While mediation is encouraged in some cases, it is not uniformly implemented or enforced.
Lack of Specialized Legal Infrastructure
Another major concern is the absence of a dedicated family law bar and judiciary in India. Unlike other areas of law where specialization is common, family law practitioners often handle a wide range of cases, from civil disputes to criminal matters.
Malhotra points out that this lack of specialization can hinder the quality of legal representation and judicial decision-making. “We do have family courts, but the judges presiding over them are not always adequately trained or updated on the latest developments in family law,” he says.
Judicial academies were established to provide ongoing training and professional development for judges. However, their impact on family court judges has been limited, according to critics. This gap in expertise can lead to inconsistent rulings and prolonged litigation.
Rising Litigation in Personal Disputes
The tendency to litigate even minor family disputes has also contributed to the burden on the legal system. High-profile cases often involve multiple parties and complex interpersonal dynamics, further complicating proceedings.
Malhotra cites instances where disputes between in-laws escalate into full-fledged legal battles involving multiple claims and counterclaims. “Why should everything go to litigation?”. “Family disputes, by their very nature, require sensitivity and a focus on resolution rather than confrontation.”
The adversarial nature of litigation can intensify conflicts, making it more difficult for parties to reach a mutually acceptable outcome. This is particularly detrimental in cases involving children, where prolonged disputes can have lasting psychological effects.
International Dimensions and the Hague Convention
The challenges are further compounded in cross-border custody cases. India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, an international treaty designed to ensure the prompt return of abducted children to their country of habitual residence.
India’s reluctance to sign the convention has been a subject of debate. Proponents argue that joining the treaty would provide a standardized legal framework for resolving international custody disputes. Critics, however, contend that the convention may not adequately account for India’s unique social and legal context.
For non-resident Indian (NRI) parents and foreign nationals, the absence of a uniform international mechanism can result in prolonged legal uncertainty. Cases often involve multiple jurisdictions, conflicting court orders, and diplomatic interventions, all of which can delay resolution.
The Way Forward
Experts agree that comprehensive reform is needed to address the shortcomings of India’s family law system. This includes updating existing laws to reflect contemporary realities, strengthening alternative dispute resolution mechanisms, and investing in specialized training for legal professionals and judges.
There is also a growing call for greater international cooperation in handling cross-border custody disputes. While concerns about sovereignty and cultural differences remain, many believe that a balanced approach can be achieved through carefully tailored legal frameworks.
Ultimately, the goal should be to create a system that prioritizes the well-being of families and children while ensuring timely and fair resolution of disputes.
Conclusion
The case of the missing child and the ongoing struggle of the father left behind underscores the urgent need for reform in India’s family law system. As societal norms continue to evolve and cross-border relationships become more common, the legal framework must adapt accordingly.
Without meaningful changes, cases like these are likely to become more frequent, leaving families caught in prolonged legal battles with no clear resolution in sight.
