Face to face: ‘Our family laws need to be in sync with global realities'

Hindustan Times

4 days ago

With a professional standing of over four decades, Anil Malhotra, 65, is a well regarded authority on the interplay of India's family laws and the international legal framework, a complex but crucial subject for 3.5 crore people of Indian origin abroad. His latest book, Practitioner's guide to international family law: An Indian perspective, is a treatise on a range of issues, including trans-border marriages, divorce, maintenance, child custody, surrogacy, adoption and inheritance. In an interaction with Hindustan Times, Malhotra delved into the challenges litigants, lawyers and courts face while navigating multi-jurisdictional family law matters, and advocated reforms to bridge the legal gaps in 'an increasingly interconnected and legally pluralistic world'. Edited excerpts: With a professional standing of over four decades, Anil Malhotra, 65, is a well regarded authority on the interplay of India's family laws and the international legal framework. (HT Photo)
What was the guiding force for your latest book?
The need to compile a ready reckoner that dealt with international law problems in the context of the Indian legal landscape on a daily basis led me to write my 10th book. It offers in-depth guidance on jurisdictional dilemmas, conflict of laws, and the recognition of foreign decrees under Indian law.
How is the convergence and conflict in family laws abroad and in India impacting the diaspora on inheritance, child custody, divorce or separation, and adoption?
Foreign court judgments are incompatible and are reviewed and tested afresh by Indian courts. This is because laws in different jurisdictions vary. In marriage and divorce, we follow religion-based law and in matters of child custody, we rely on an archaic The Guardians and Wards Act, 1890, and in case of succession and inheritance, we are guided by personal laws. There is a different viewpoint in respect of Indians even though they have acquired foreign nationality or citizenship. Their foreign domicile does not take away application of personal laws. So, there is an inconsistency because foreign countries take cognisance of their domicile in that country and then apply laws to them. This is not acceptable in Indian conditions.
Cases of women marrying NRIs facing desertion or abuse are on the rise. Courts are struggling in such cases. What can be done?
Difficulties come when there is an abandoned spouse or ill-maintained children deserted in Indian jurisdiction, or there is an Indian court order, which can't be executed abroad. We are still grappling to make laws. So, we resort to proceedings under the Domestic Violence Act. In maintenance proceedings, we take help under the CrPC. But these have also become instruments of misuse. So, it's just the innovation of the high courts and Supreme Court that methods are devised on a case-to-case basis to find a resolution.
What challenges do NRIs face in marital disputes decided in foreign courts?
The most common types of orders are orders of custody, visitation, access and return to home country abroad. India is not a signatory to the abduction convention, which has been signed by 110 countries. Hence, India does not follow foreign court orders. Instead, family courts or high courts examine the welfare of the child, which can be time-consuming due to which children suffer from alienation.
India has to sign the convention on abduction which allows the free movement of children. We need to amend the Guardians and Wards Act and talk about joint parenting, shared custody and equal rights of both parents. Times have changed. There are working couples, sit-at-home fathers and other such categories. In an evolving society, we need to make changes in our laws.
What changes are needed in Indian laws on domicile, inheritance, wills and succession issues for NRIs?
The biggest challenge is when Indians migrate abroad, leaving behind properties/assets and later find it difficult to transfer. The best way to sort this out for an NRI or OCI is to make a separate will of Indian assets so that it goes through a will under the Indian Succession Act. Special courts are needed to deal with such cases on priority.
Adoption is complex. What reforms are needed to help NRIs/foreigners?
The Central Adoption Resource Authority (CARA), the nodal agency for adoptions of Indian children, is full of administrative people without judicial acumen. CARA is slow in processing applications of abandoned children despite the long waiting list of families looking to adopt them. The authority should be headed by a Supreme Court judge or high court chief justice to monitor its working.
Surrogacy laws have undergone changes but are still complex. What more can be done to establish a robust legal framework?
The law seems to be made to stop surrogacy rather than to facilitate it. A CARA-like institution should be created to determine the eligibility of a person keen on surrogacy, to check their antecedents, ensure welfare of the children and ascertain whether it is being done without any consideration. Instead of developing a mechanism to regulate surrogacy, tightening the noose is making surrogacy impossible. The law needs a relook and age limits need revision.
Family courts are struggling with the timely disposal of cases. How can these cases be fast-tracked?
We need trained judicial officers assisted by domain specialist lawyers. Judicial academies should hold regular programmes, invite resource persons, practising professionals and update them with the latest laws. Abroad, there is a dedicated family court bench. But here (in India), the family court judge is a practitioner in all branches of law. The bar councils and national law universities need to groom emerging law graduates into family law practitioners. Family court benches should be set up in the high courts. Family courts at the grassroots should have mediation infrastructure, child support lawyers, counsellors and psychologists.