When one parent unilaterally relocates a child across international borders or even within India, it gives rise to profound legal, psychological and moral challenges. Such actions often subvert the rights of the left-behind parent and destabilise the child’s life.
The legal response to these disputes remains mired in gaps and inconsistencies, with courts forced to strike delicate balances between parental rights, territorial jurisdiction and, above all, the welfare of the child.
India’s refusal to accede to the Hague Convention on the Civil Aspects of International Child Abduction, 1980 continues to draw international scrutiny. Over 100 countries have ratified this Convention, which created a swift, largely uniform framework for returning wrongfully removed or retained children to their country of habitual residence. India’s hesitance, primarily rooted in concerns that many Indian mothers flee abusive NRI marriages to return home with their children, has left it outside this global remedial network.
This vacuum places India in a problematic international position. The United States State Department repeatedly cites India as a nation that “condones child abduction” by circumventing international norms on child abduction. Between 2010 and 2014 alone, there were 173 cases of children taken from the US to India, with only 22 returns - a staggering statistic reflecting both diplomatic and procedural hurdles.
Absent the Hague framework, Indian courts adjudicate these cases under general principles of conflict of laws, constitutional writ jurisdiction and the Guardians and Wards Act, 1890. The result has been a patchwork of decisions, oscillating between deference to foreign court orders and insistence on conducting an independent welfare analysis.
In Surinder Kaur Sandhu v. Harbax Singh Sandhu (1984), the Supreme Court was of the opinion that “where the removal of the child from one country to another by one parent is in breach of the order of the court where the child was previously residing, ordinarily the court in the country to which the child is removed must order its return.” Similarly, in Elizabeth Dinshaw v. Arvand M Dinshaw (1987), the Supreme Court directed the return of a child taken from the US to India, stressing that continued illegal retention would cause “irreparable harm.”
Yet, this robust comity approach began to soften in later years. In Ruchi Majoo v. Sanjeev Majoo (2011), the Court clarified that while foreign judgments deserve “due regard,” Indian courts cannot simply act as executing forums. The doctrine of parens patriae obligates them to independently evaluate the minor’s welfare, being the guiding principle in deciding the custody of a child. This jurisprudential pivot crystallised in Nithya Anand Raghavan v. State (NCT of Delhi) (2017). In this case, despite a UK court order, the Supreme Court refused to compel the child’s return, ruling that the welfare jurisdiction under Article 226/32 cannot be trumped by foreign decrees. The Court stressed that the child had become settled in India and that her best interests required remaining with her mother.
This “settled environment” standard was reaffirmed in Prateek Gupta v. Shilpi Gupta (2018) and Yashita Sahu v. State of Rajasthan (2020), with the Court emphasising that while foreign orders are persuasive, they do not dictate outcomes under Indian law. India’s courts are wary of treating children as mere subjects of inter-country enforcement, and prioritise the child’s stability and well-being over technical jurisdiction.
Within India, the problem of unilateral child relocation persists, albeit under less sensational headlines. In this context, the Supreme Court’s ruling in Githa Hariharan v. RBI, (1999) is instructive. The Court interpreted Section 6(a) of the Hindu Minority and Guardianship Act to hold that the mother is not merely a guardian of the minor “after the lifetime of the father” alone, but that either parent may be the natural guardian depending on who is best able to serve the minor’s welfare. This reinforces the proposition that absent a contrary custodial decree, either parent acting as natural guardian including by relocating the child does not constitute kidnapping under Section 361 of the Indian Penal Code.
Thus, the immediate recourse for the left-behind parent is often a writ of habeas corpus, but Indian courts have set a high threshold. As seen in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019), a writ of habeas corpus lies primarily to examine unlawful detention or harm, not to resolve ordinary custody disputes. If the court finds the child safe with another natural guardian, it typically redirects parties to a custody petition under the Guardians and Wards Act.
Recognising these significant lacunae, various expert bodies have proposed reforms. Notably, the Justice Rajesh Bindal Committee Report (2018) went beyond simply recommending the Hague Convention’s framework, advocating for a one-window Disputes Resolution Authority presided over by a senior Supreme Court or High Court judge. This authority would serve as a dedicated mechanism for addressing inter-country child removal and retention cases, promoting a swift, child-centric approach. The Committee’s recommendations were anchored in the draft Civil Aspects of International Child Abduction Bill, 2016 and the Protection of Children (Inter-Country Removal and Retention) Bill, 2016, which sought to balance the need for prompt returns with exceptions for situations involving domestic violence or serious risks to the child.
The Committee also underscored the importance of mediation as the first recourse, recognising that a rigid application of the “habitual residence” principle may not always serve the child’s best interests. Parallelly, the Law Commission’s 263rd Report (2015) called for overhauling India’s custody laws by introducing joint custody and shared parenting models, aiming to dismantle the prevailing adversarial, winner-takes-all paradigm.
Unfortunately, these initiatives remain in legislative limbo. Meanwhile, family courts continue to grapple with enormous backlog, meaning that even local custody battles often drag on for years, deepening the alienation of the non-custodial parent and entrenching new status quos that courts hesitate to disrupt.
The challenge of custody without consent - whether across continents or within Indian borders - emphasises the urgent need for a calibrated legal response. On the international front, India must reconsider its resistance to the Hague framework or, at the very least, enact a domestic statute that emulates its core principles with built-in safeguards for victims of domestic violence.
Domestically, embracing shared custody norms and investing in fast-track family courts could transform the current adversarial landscape into one that truly centres the child’s emotional and psychological welfare. As the Supreme Court poignantly observed in Anjali Kapoor v. Rajiv Baijal (2009), “the welfare and interest of the child is the paramount consideration...the rights of the parties under the statutes are subservient to this.”
Ultimately, the law must evolve to ensure that no parent’s unilateral decision, however well-intentioned, can irreversibly fracture the child’s ties with the other parent. A child’s best interests are not served by protracted uncertainty. Swift, balanced adjudication is not just legal idealism, it is a necessity for families caught in the painful crossfire of custody without consent.
Aditi Mohoni is an advocate practicing before the Bombay High Court.
The article reflects the author’s personal views and does not constitute legal advice.