by Jeremy D. Morley

www.international-divorce.com

It is typical that, when a wife and mother abducts a child to India she immediately causes the husband and his immediate family members to be charged with the Indian offense of cruelty to a wife in order to deter and prevent her husband from entering India to seek to recover the child or to appear in court in India. Such conduct is most likely if the wife has previously alleged misconduct by the husband.

The Bharatiya Nyaya Sanhita is the official criminal code in the Republic of India. It came into effect on July 1, 2024, and replaces the Indian Penal Code. Sections 85 and 86 of the new law mirror precisely the provisions of the notorious Section 498A of the Penal Code.

Section 85 provides as follows:

"Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.”

Section 86(a) defines “cruelty” to mean,

“(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman.”

The law can be used only by married women and only against their husbands and the relatives of their husbands. It is used most frequently when a marriage breaks up to enable wives to get their husband and many of their family members arrested by making spurious or exaggerated claims of cruelty.

In the case of non-resident Indians, the process has often proved calamitous for the husband. In typical situations that I have witnessed and frequently have handled (with counsel in India), if a mother of Indian origin who lives outside India takes her children to India and retains them there, she immediately starts what is usually referred to as a “Section 498A case” in India and then sues for both divorce and custody in India. The husband then cannot step foot in India because he will be arrested. Meanwhile his relatives in India clamor for him to settle up with his wife because they have been in jail or are fearful that that will happen. The Supreme Court of India has described such conduct as “legal terrorism.”

The Supreme Court of India has now harshly criticized the prevalent misuse of Section 498A as a tool whereby wives and their families employ exaggerated versions of complaints to start criminal proceedings against hapless husbands and their families. On May 3, 2024, it explained that,

“Many times, the parents including the close relatives of the wife make a mountain out of a mole. … [T]he Police machinery should be resorted to as a measure of last resort and that too in a very genuine case of cruelty and harassment. The Police machinery cannot be utilised for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends.”

The Supreme Court asked the Indian Legislature to correct the problem but it recited the fact that its previous request for such action, made 14 years earlier in another case, had fallen on deaf ears. In that case, the Court had accurately explained that the prevalent abusive use of Section 498A,

“lead[s] to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law.”

If a mother initiates a criminal cruelty case against a left-behind father in India, he will face arrest as soon as he arrives at an airport in India, may be imprisoned before likely being released on bail, may well have his passport revoked and will likely face many months of traumatic and expensive litigation in India, which will often extend to his parents or other family members in India, who may be charged with having instigated or participated in the purported cruelty.

Such tactics are a strong tool in the arsenal of women who abduct children to India to prevent left-behind fathers from securing the return of their children. The Supreme Court of India's recent ruling underscores the problems that arise as a result of India's failure and refusal to adopt the Hague Convention on the Civil Aspects of International Child Abduction and its failure to apply any other effective methods to return internationally-abducted children or to deter parents from abducting children to India. As a result, India has been repeatedly condemned by the U.S. Government for its noncompliance with international norms condemning international child abduction, but to no avail.