When a Parent Takes a Child Abroad or Brings a Child to India: Custody Across Borders

Few situations in family law are as distressing as this one. A family has been living in the United States, the United Kingdom or the Gulf. The marriage is under strain. One parent travels to India with the child, for a holiday or a family function, and does not return. Or the opposite happens: a child living in Bangalore is taken abroad by one parent without the other's agreement.

The parent left behind usually asks three questions. Which court can help? Will the child be sent back? And how quickly must something be done? This article explains how Indian law answers them.

The Starting Point: The Welfare of the Child

In every custody dispute in India, the welfare of the child is the paramount consideration. Section 13 of the Hindu Minority and Guardianship Act, 1956 says so expressly, and the Guardians and Wards Act, 1890 requires the court to be guided by the welfare of the minor. The rights of the parents, the orders of other courts and the conduct of either side all matter, but each of them is weighed in terms of what is best for the child.

India and the Hague Convention

Many countries are parties to the Hague Convention on the Civil Aspects of International Child Abduction, under which a child wrongfully removed from the country of habitual residence is ordinarily returned quickly, and custody is then decided there. India is not a party to that Convention. This has two consequences. A parent abroad cannot use the Convention's procedure to have a child returned from India. And an Indian court is not bound to send the child back merely because a foreign court has ordered it.

When a Child Has Been Brought to India

A parent whose child has been brought to Bangalore without consent can approach the High Court of Karnataka for a writ of habeas corpus under Article 226 of the Constitution, or apply for custody or guardianship. Under Section 9 of the Guardians and Wards Act, a guardianship application is made to the court where the child ordinarily resides, which in Bangalore is the Family Court.

In Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454, the Supreme Court explained that the Indian court may either decide the question summarily or hold a detailed inquiry, and that an order of a foreign court is an important factor to be considered, but is not conclusive. In that case the child had settled in India, and the Court did not order her return to the United Kingdom.

The outcome is not always the same. In Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311, the Supreme Court directed that the children, who were United States citizens and had been brought up there, be returned to the United States, giving weight to the orders of the American court and to the children's interests. In Rohith Thammana Gowda v. State of Karnataka (2022), a case that began in the High Court of Karnataka after a child was brought to Bengaluru, the Supreme Court directed that the child be returned to the United States, allowing the mother to accompany him.

These decisions show that the answer turns on the facts: the child's age, nationality and schooling, how long the child has lived in each country, the existence and nature of any foreign court order, the conduct of the parents, and how settled the child has become in India.

When a Child Has Been Taken Out of India

If a child who has been living in Bangalore is taken abroad, the parent in India can often still apply to the Family Court here, where the child ordinarily resided before being removed, for custody or guardianship, though whether the court will take up the matter depends on the circumstances. Enforcing that order, however, depends on the law and the courts of the country where the child now is. In practice, proceedings in India are often combined with steps taken through a lawyer in the other country, and an Indian custody order can support that case.

Preventing Removal From India

Where there is a real risk that a child will be taken out of India, a parent can ask the Family Court or the High Court, in a pending custody or guardianship case, for an interim order restraining the other parent from taking the child abroad. Courts may also direct that the child's passport be deposited with the court. Such orders are far easier to obtain before the child has left than to enforce afterwards.

Why Time Matters

The longer a child lives in a new country, attends a new school and builds new routines, the more weight a court may give to the child being settled there. A parent who waits months before acting may find that delay itself has become part of the case. The first few weeks are often the most important time to take advice and act.

Practical Steps for the Parent Left Behind

• Keep the records: the child's passport and visa details, birth certificate, school records, medical records and proof of where the family lived.
• Collect any orders: copies of any custody, protection or divorce orders from India or abroad, with translations where needed.
• Note the timeline: when and how the child left, what was agreed about the trip, and every message about returning.
• Avoid self-help: taking the child back without a court order can weaken your own case in both countries.

Cross-border custody disputes are decided on their own facts, and the law treats them with great care because a child's life is involved. Early, considered steps in the right court usually make the most difference. See also NRI & Cross-Border Family Matters and Child Custody & Guardianship.

Frequently Asked Questions