Indian courts decide custody on the welfare of the child, which overrides the legal rights of either parent and any foreign court order. India has not signed the Hague Convention on child abduction, so a child brought to India is not returned automatically; the left-behind parent must file a habeas corpus petition in the High Court or a custody petition under the Guardians and Wards Act, 1890, and the court examines what is best for the child.
- Governing test
- Welfare of the child
- Hague Abduction Convention
- India is not a party
- Main statute
- Guardians and Wards Act, 1890
- Urgent remedy
- Habeas corpus in High Court
The legal framework
Custody and guardianship are governed by the Guardians and Wards Act, 1890, which applies to all communities, read with personal laws such as the Hindu Minority and Guardianship Act, 1956. Under the 1956 Act the father is described as the natural guardian and the mother after him, but the Supreme Court in Githa Hariharan v. Reserve Bank of India (1999) read this to mean that the mother can act as guardian whenever the father is absent or not in charge, and custody of a child under five ordinarily rests with the mother. Section 13 of that Act makes welfare the paramount consideration, and courts apply the same principle to every family.
Welfare is assessed broadly: the child's age, who has been the primary carer, stability of home and schooling, the child's own wishes if old enough, and each parent's ability to meet emotional and material needs. Custody may be sole or shared, with visitation and video contact for the other parent.
When a child is brought to India
Because India is not a party to the 1980 Hague Convention, there is no summary return mechanism. The Supreme Court's approach has evolved from prompt return under the "comity of courts" principle to a welfare-centred inquiry. In Nithya Anand Raghavan v. State (NCT of Delhi) (2017) it held that a foreign custody order is only one factor, and that the Indian court may conduct a summary or an elaborate inquiry depending on how quickly it was approached and how settled the child has become. Later decisions have ordered return where the child had deep roots abroad and the removal was recent.
The practical lesson for a left-behind parent is speed: a habeas corpus petition filed within weeks is treated very differently from one filed after the child has spent two school years in India. For the parent who has come to India with the child, the lesson is to regularise the position through a guardianship petition and not rely on possession alone.
Remedies available
- Habeas corpus before the High Court under Article 226, used where a child is being kept away from the parent with lawful custody. It is quick and the court can interview the child.
- Guardianship and custody petition before the family court where the minor ordinarily resides, for a full determination.
- Interim custody and visitation pending decision, including structured video calls and holiday access.
- Orders about travel: deposit of the child's passport, or permission to travel with undertakings and mirror orders in the foreign court.
- Enforcement of an existing Indian order through contempt or execution.
Travel, passports and relocation
A minor's Indian passport normally needs the consent of both parents; where one refuses, the other can apply with a declaration and, if necessary, a court order. A parent who wishes to relocate abroad with the child should obtain either written consent or the court's permission, since unilateral removal can be treated as wrongful in the destination country, many of which are Hague Convention members. Where a parent fears removal from India, the court can restrain travel and notify immigration authorities.
Custody rarely stands alone. It is usually decided alongside divorce and child maintenance, and occasionally complaints under the Domestic Violence Act.
Guardianship of a minor's property
A separate issue for NRI families is property inherited by a minor in India. A natural guardian cannot sell or mortgage a Hindu minor's immovable property without prior permission of the district court under section 8 of the Hindu Minority and Guardianship Act; a sale without it is voidable at the minor's instance. We obtain such permissions where a sale is genuinely for the child's benefit, and court appointment of a guardian where both parents have died. See also sale of property.
Mistakes that cost NRIs time and money
- Waiting months after a child is taken before going to court.
- Removing a child across borders without consent or an order.
- Relying only on a foreign order and not engaging with the Indian proceedings.
- Using the child as a messenger or coaching them, which courts notice.
A typical situation
Speed decided the outcome
A mother travels to India with a six-year-old for a holiday and does not return; the father holds no court order. He files a habeas corpus petition in the High Court within five weeks, with school and medical records showing the child's settled life abroad. The court conducts a summary inquiry, speaks to the child and directs return with undertakings by the father on housing, expenses and non-prosecution, leaving custody to the court of habitual residence. Had he waited a year, the inquiry would probably have been a full welfare hearing in India.
Illustration only, based on patterns we commonly see. It is not a real client's case and outcomes depend on the facts.
If you live in...
The Indian law is the same wherever you live. These are the points that differ by where you are.
USA and Canada
The US and Canada are Hague Abduction Convention countries and India is not, so a return order abroad does not bind an Indian court, though it carries weight.
UK and Europe
English courts often make mirror orders and accept undertakings; combining these with Indian orders gives both parents security for travel.
UAE and the Gulf
Sponsorship and visa status of the child in the Gulf affects practical arrangements; address it expressly in any parenting plan.
Country pages: UAE, Saudi Arabia, Qatar, Kuwait, Oman, Bahrain
Australia, New Zealand and Asia
For Australian and New Zealand residents, relocation orders obtained there should be supported by consent or orders in India before travel.
Country pages: Australia, New Zealand, Singapore, Malaysia
Documents you will need
Bring whatever shows the child's life and who has cared for them.
- Child's birth certificate and passports
- Parents' passports, visas or OCI
- Marriage certificate
- Any custody order, Indian or foreign
- School and medical records
- Travel records showing when the child moved
- Messages and emails about the child
- Evidence of each parent's home and care arrangements
How we handle it for you
Urgent assessment
We establish where the child is habitually resident, what orders exist and how quickly to move.
Choice of remedy
Habeas corpus, guardianship petition or negotiated parenting plan, depending on the facts.
Interim arrangements
Applications for contact, travel restrictions or passport deposit are pressed first.
Hearing
The court hears both parents, may speak to the child and can call for a welfare report.
Order and enforcement
We obtain certified orders and assist with mirror orders or recognition abroad.
Frequently asked questions
Is a foreign custody order enforceable in India?
Not automatically. Indian courts treat it as a relevant factor and then decide independently what the child's welfare requires. Prompt action by the parent holding the order improves the chance of return.
Is India a member of the Hague Convention on child abduction?
No. India has not acceded to the 1980 Hague Convention, so there is no treaty procedure for summary return. Remedies lie through the Indian High Courts and family courts.
Who gets custody of a child in India, the mother or the father?
Neither has an automatic right. Courts apply the welfare principle. Children under five are ordinarily left with the mother, and older children's preferences are taken into account.
Can I take my child abroad without the other parent's consent?
Doing so risks proceedings in both countries. Obtain written consent or a court order permitting relocation, particularly if a custody case is pending.
How quickly can a habeas corpus petition for a child be heard?
High Courts list such petitions urgently, often within days, and can direct production of the child. Final disposal depends on whether the court opts for a summary or a detailed inquiry.
Can a non-custodial NRI parent get visitation?
Yes. Courts regularly order video contact, physical access during visits to India and holiday time, recognising a child's need for a relationship with both parents.
At what age can a child choose which parent to live with?
There is no fixed age. Courts speak to children who can form an intelligent preference, commonly from around nine, and treat their wishes as one important factor.
Can grandparents seek custody or visitation?
Yes, where it serves the child's welfare, for example on the death or incapacity of a parent. Courts also grant grandparents visitation in suitable cases.
