When a marriage between parents of different nationalities breaks down, the fallout rarely stays confined to the couple – children are inevitably impacted. Increasingly, it plays out across borders with one parent removing a child from the country of habitual residence unilaterally, i.e., without the knowledge or consent of the other parent. This is internationally termed ‘parental child abduction’ and raises complex questions about jurisdiction, enforcement of foreign orders, and above all, the welfare of the child caught in the middle. In India, this is not recognized as an offence; thus, we will use the term ‘unilateral parental child removal’.
India’s Absence From the Hague Convention
The Hague Convention on the Civil Aspects of International Child Abduction (“Convention”) was adopted on 24 October 1980, with the core objective of ensuring the prompt return of abducted children to their country of habitual residence. Today, 103 countries are signatories. India is not one of them – a position it shares with China, Russia, and much of Asia, Africa, and the Middle East, raising the question of whether accession patterns are dominated by the global north.
India’s abstention is based on well-deliberated reasons. Successive government-appointed committees, including the Justice Rajesh Bindal Committee, have examined the issue closely, with particular attention to cases where the ‘abducting’ parent (very often the mother) cites domestic violence or lack of financial resources abroad as the reason for returning to India with the child. This is a recurring and significant thread in India’s reluctance. A treaty designed around prompt return sits uneasily with the reality that many taking parents are fleeing untenable circumstances rather than engaging in strategic forum-shopping. This also impacts children who are at risk with an abusive parent or in a home with domestic violence, where prompt return could mean return to harm rather than to safety. This reason is not confined to India but is cited as a concern by many countries across the globe.
Contextualising the Problem
This issue has seen increased attention internationally. There is a definite need in India for workable solutions which lead to faster results. The US State Department’s 2026 Annual Report to Congress on International Child Abduction records that 71% of cases involving children unilaterally taken by a parent from the United States to India remain unresolved beyond twelve months, with average resolution taking roughly three years and three months. Total cases recorded are 108. However, these numbers need to be contextualised considering India’s large population of 1.2 billion and a large diaspora of nearly 38 million spread across the US, UK, and elsewhere.
It also bears noting that the flow is not one-directional. A number of cases involve children taken out of India as well, underscoring that this is a genuinely bilateral concern rather than one where India is only ever the receiving jurisdiction.
How Indian Courts Approach These Cases
In the absence of Convention machinery or a separate legislation for such cross-border cases, parents seeking the return of a child, or contesting custody, in India generally pursue one of two routes:
- A writ of habeas corpus, filed before a High Court, or the Supreme Court in urgent cases. The procedure is summary in nature. It proceeds largely on affidavits rather than a full trial with evidence. Courts routinely note that where a deeper factual inquiry is warranted, they may decline the writ jurisdiction and direct parties instead to the family court.
- A custody application before the family court, typically under the Hindu Minority and Guardianship Act, 1956 (for Hindus) or the Guardians and Wards Act, 1890, where jurisdiction lies with the court within whose territory the child ordinarily resides. This route is taken for domestic cases as well and allows for leading full evidence.
Under both routes, as set out in Surya Vadanan v State of Tamil Nadu (JT 2015 (3) SC 85), Indian courts anchor their analysis in the “best interest of the child” principle, weighing factors such as the child’s citizenship and access to resources, physical and emotional wellbeing, and continuity of education. An important consideration for the left-behind parent is to initiate legal proceedings in India at the earliest instance. The longer a left-behind parent takes to approach Indian courts, the more likely it is that the child has, in the interim, become settled in school, in a home, and in a routine which the courts grow correspondingly reluctant to disturb, even where the initial removal was without consent.
Emerging Safeguards
Foreign custody orders are not binding on Indian courts, but they carry persuasive value, particularly where both parents had a genuine opportunity to be heard in the foreign proceeding and the order itself is detailed and reasoned. Some institutional responses and judicial innovations have taken shape in absence of a clear and separate legislative framework for cross border custody cases.
The Indian government established a Mediation Cell in 2018 with the objective of mediating custody disputes. Mediation cells now offer parents a process outside adversarial litigation. They are often faster and less damaging to any prospect of co-parenting going forward. Indian courts also often prioritize custody cases as they are time sensitive.
For a parent contemplating their child’s travel to India where a fear of abduction exists, a combination of a mirror order (an Indian order replicating the terms of a foreign custody order) coupled with a pre-litigation mediated settlement akin to an arbitral award can offer meaningful protection. Contrary to a common perception that nothing can be done once a child is in India, a legal remedy, imperfect and often slow, does exist.
Where This Leaves the Debate
The case for India acceding to the Hague Convention is not straightforward. A treaty built around presumptive, prompt return sits in tension with the lived reality of parents (disproportionately mothers) who leave abusive or precarious situations abroad with nowhere else to turn. Yet the current patchwork of habeas corpus petitions, protracted custody litigation, and case-by-case judicial discretion imposes real costs of its own: years of uncertainty, fractured parent-child relationships, and outcomes that often turn more on delay than on the child’s genuine best interest. A dedicated domestic framework or bilateral arrangements with major expatriate destinations may offer a more workable middle path than either wholesale accession to the Convention or continued reliance on judicial improvisation.
References
- Hague Convention on the Civil Aspects of International Child Abduction, 1980.
- Report of the Justice Rajesh Bindal Committee (21 April 2018), https://images.assettype.com/barandbench/import/2018/05/Justice-Rajesh-Bindal-Committe-Report-on-Civil-Aspects-of-International-Child-Abduction-Bill1.pdf
- Law Commission of India, 218th Report on Need to Accede to the Hague Convention on the Civil Aspects of International Child Abduction (30 March 2009), https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081042.pdf
- Law Commission of India, 263rd Report on The Protection of Children (Inter-Country Removal and Retention) Bill, 2016 (October 2016), https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081679.pdf
- United States of America, Annual Report to Congress on International Child Abduction (2026), https://travel.state.gov/content/dam/NEWIPCAAssets/2026%20-%20Annual%20Report%20on%20International%20Child%20Abduction.pdf
- Stellina Jolly & Saloni Khanderia, Indian Private International Law, Hart Publishing (2021), DOI: 10.5040/9781509938216
- Surya Vadanan v State of Tamil Nadu, JT 2015 (3) SC 85
