New Delhi: After suffering six years of domestic abuse, which only intensified following the birth of a girl child, P*, a blue-collar worker and mother of two, finally gathered the courage to escape her abusive marriage. 

In August 2024, P—who was a minor when her parents had her married at 19—suffered a brutal beating from her husband. He slapped and punched her and pulled her hair, according to a complaint she filed in the police station. She sustained internal injuries but did—as is often the case—go to the police.

P first sought refuge at her parents’ home in Delhi with her children, determined to protect them from more abuse. A few days later, she went to the local police station and officially filed a domestic violence complaint against her husband.

As P tried to rebuild her life, focusing on her children’s schooling and looking for work, her husband sought revenge. Without any notice to P or her family, he lured their 4-year-old son away from her care. 

To evade legal repercussions, the husband sent the young child to his village in Uttar Pradesh while continuing to stay in the Delhi suburb of Noida. He told P that he would only return their son back to her if she agreed to retract the police complaint. 

Desperate to get her child back, P reported the kidnapping to the police, but they took no action. Despite persistent appeals, the police officer dismissed the matter. “It is a marital issue, which the couple should resolve on their own or go for counselling,” she quoted the officer as saying. 

P’s anxiety mounted with each passing moment, as she feared for her child’s safety. Desperate to ensure her son's well-being, P frantically tried to contact her husband and his family members, hoping to gather any information about the child's whereabouts, reaching out to everyone she could think of, from close relatives to distant acquaintances. 

Eventually, in December 2024, she approached the Delhi High Court, which ordered the child to be produced before the court. The judge told the investigating officer to allow communication via an audio and/or video call between P and her son. 

With the case now pending in court, P faces escalating threats and intimidation from her husband and in-laws, further endangering her safety and well-being in her pursuit of justice. 

While P awaits justice, the emotional trauma inflicted upon both mother and child is immense. P’s plight is far from unique, these stories revealing how domestic violence survivors face a double struggle—first to escape abuse, and then to protect their children being taken away as revenge. 

Few Options For Mothers

There are many cases where husbands take children from the care of the mother and use them as leverage to force their wives to drop domestic-abuse charges. 

Mothers, who are usually the primary caregivers, often have no choice but to comply. 

The recourse provided by law, whether through guardianship petitions or under the Domestic Violence Act 2005, can take a long time to provide even temporary custody solutions. 

When the legal system treats these cases simply as custody disputes, it fails to gauge the real danger and urgency that is inherent.

What we need is clear—courts must act quickly when abusive partners snatch children away from their primary homes and caregivers. Courts must recognise such acts for what they are—another form of domestic violence that hurts both survivor and child. 

It appears apparent that the law must protect these families faster and better, ensuring that children are not used as weapons against survivors who dare to speak up against abuse. 

Until this changes, survivors will continue to face the impossible choice between seeking safety and keeping their children close.

Problems With The Law

Abusive spouses routinely use parental abduction to terrorise their victims into silence. 

Countries such as the United Kingdom, have criminalised parental kidnapping, and even if parents have custody of the child, they cannot take the child without the consent of the other parent or legal guardian. 

India’s laws remain murky on this issue. 

The courts have held that a father cannot be charged with kidnapping his minor child from the wife’s custody unless explicitly prohibited by a competent court. This legal ambiguity often leaves police hesitant to intervene, even in cases of clear wrongdoing.

For instance, the Hindu Minority and Guardianship Act 1956 states that mothers should ordinarily have custody of children under the age of five. This places the onus on the father to approach the court and prove that the mother is an unfit guardian in order to obtain custody of the child. 

In P's case, her husband clearly violated the law by removing her four year old child from her care without her consent, contravening the legal provisions. If he wished to seek custody, the appropriate course of action would have been to pursue legal recourse through the court system, rather than resorting to intimidation tactics. 

The lack of explicit provisions against parental abduction makes it difficult to enforce the law in such situations. The issue is further complicated by the fact that under several personal laws, the father is considered the natural guardian of the child over the mother. 

There are signs this attitude may change.

Child’s Welfare Paramount: SC

In a landmark judgment on 30 December 2024, the Supreme Court held that a father’s visitation rights cannot come at the cost of the child’s health and well-being. The Supreme Court underscored the need for courts to carefully examine the impact of parental access on the child’s physical, emotional, and psychological well-being, rather than automatically deferring to traditional notions of guardianship.

"The interest of the minor child is paramount,” said Justices Vikram Nath and P B Varale. “In the process of adjudicating upon the rights of the parents, her health cannot be compromised. Further, while the respondent has the right to visit the child, it cannot be at the cost of the child’s health and wellbeing.”

That did not happen with P, her case exposing glaring gaps in the response of the legal system to domestic abuse and child custody issues. 

All too often, courts and law enforcement agencies treat such matters as “custody disputes”, displaying a hesitance to intervene promptly even in the face of grave allegations of abuse. 

The growing narrative surrounding false domestic violence allegations only makes things harder, as people become reluctant to believe women or get involved in what they see as a “matrimonial problem”. 

The time-consuming nature of interim legal remedies, including guardianship petitions and under the domestic violence law, force survivors into an impossible choice: withdraw their complaints of abuse or risk losing access to their children for extended periods. This systemic failure is further compounded by the exploitation of legal loopholes and jurisdictional complexities by abusers. 

In P’s case, her husband sent their child to another state while living elsewhere himself, a calculated maneuver to evade legal consequences and maintain control over the survivor. Such tactics leave survivors vulnerable to continued abuse while separated from their children, perpetuating a cycle of trauma and injustice.

Impact On Children

The issue of domestic violence and the weaponisation of children is not only a violation of women’s rights but also a severe infringement on child rights. 

The 1990 United Nations Convention on the Rights of the Child emphasises every child’s fundamental right to grow up in a safe, nurturing, and violence-free environment. But perpetrators of domestic violence often extend their abusive behaviour to children, creating a dangerous living situation that jeopardises their well-being. 

Studies show that individuals who abuse their partners are highly likely to abuse their children, perpetuating a cycle of intergenerational violence. Children who witness or experience domestic violence are nine times more likely to engage in criminal activity later in life, underscoring the urgent need to address this issue as both a women's rights and child protection concern.

In child custody matters, courts have consistently held that the welfare of the child is of paramount consideration. 

P has been the primary breadwinner, caregiver, and guardian for her children, ensuring their tuition and well-being on a meagre income, with no interest or support from her husband. Uprooting a young child from the care of their primary caregiver and familiar surroundings can, experts have said, inflict severe trauma and impede their mental and emotional development.

It seems obvious that in domestic violence cases, courts need to critically examine whether an abusive spouse is fit to be a child’s primary caregiver, an issue discussed in the Law Commission of India Report No. 257. 

A parent’s history of committing domestic violence should be a key consideration in custody decisions, since it raises serious concerns about their ability to provide a safe and nurturing environment for the child. 

Swift interim action must be taken to remove the child from the custody of the abusive parent to protect from potential harm and trauma.

Habeas Corpus Offers Interim Relief

One potential solution lies in empowering aggrieved parents to approach High Courts directly through habeas corpus or produce-the-body petitions. 

This legal recourse offers a swifter means to seek the restoration of lawful interim custody to the primary caregiver. This remedy does not infringe upon a secondary caregiver’s right to seek custody through legal channels; instead, it prioritises the child’s welfare by preventing a compromise through illegal actions.

A High Court’s intervention through habeas corpus can be a lifeline for survivors, enabling a decision based on the child’s best interests without prejudice to the final custody determination. 

Factors such as the child’s access to education, the risk of abuse, and the overall nurturing environment must take precedence. Such an approach recognises the unique vulnerabilities of children caught in the crosshairs of domestic abuse and parental conflict.

Some high courts are beginning to recognise the urgency of these situations. In a 28 May 2024 judgement, the Allahabad High Court held that while habeas corpus is not typically used in custody matters, high courts can exercise this extraordinary power under Article 226 of the Constitution of India when the detention of a child is proven to be illegal, particularly in urgent situations. 

Considering that the child was only two years old, the court prioritised the child’s well-being and returned custody to the mother, drawing support from both general law and personal religious law.

While some courts, as in P’s case, have ordered children to be produced to verify their safety and well-being, others have directed families toward mediation to resolve these disputes. 

Courts lack clear guidelines for handling such cases, and child psychologists are only involved if the matter goes to mediation. This means most interim decisions are made without expert insight into the child’s psychological needs and well-being. 

Courts are meant to work in close coordination with protection officers appointed under domestic violence law to ensure swift custody orders favoring the non-abusive parent. Stricter penalties could also be imposed on abusers who weaponise children as tools of coercion and control.

As society grapples with the complexities of domestic violence, cases like P's highlight the urgent need for systemic change. The exploitation of children as a means to gain leverage in domestic violence cases is an issue that demands urgent attention. 

To deter this, meaningful remedies, courts could impose strict penalties and police could respond swiftly to parental abduction. Streamlining the process to determine interim custody arrangements is essential, as is establishing robust safeguards to protect lawful custody orders and prevent abusive parents from kidnapping children. 

Only then can India break the cycle of abuse and provide hope for a safer future for all families.

*Identity withheld 

(Aparimita Pratap is a lawyer working at the Migration and Asylum Project as the project officer of their Support for Survivors of Sexual and Gender Based Violence Programme.)

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