Key takeaway
Indian courts decide custody on the child’s welfare, not on which country’s court acted first. India is not a party to the Hague Child Abduction Convention, so a foreign return order is not enforced automatically. Act quickly, keep records of the child’s life, and propose a practical parenting plan.
The governing principle
The welfare of the child is the paramount consideration (Hindu Minority and Guardianship Act, 1956, Section 13; Guardians and Wards Act, 1890). Courts look at the child’s age, schooling, health, stability, the child’s wishes if old enough, and each parent’s ability to care for the child.
Which court
- A guardianship or custody petition is usually filed where the child ordinarily resides (Section 9, Guardians and Wards Act).
- Family Courts hear these cases in most cities.
- Custody can also be decided in divorce proceedings.
When a child is brought to India by one parent
The left-behind parent can file a habeas corpus petition before the High Court or a custody petition. In Nithya Anand Raghavan (2017) the Supreme Court held that Indian courts are not bound to order a summary return and must decide on the child’s welfare, though a foreign court’s order is a relevant factor. In cases such as Yashita Sahu (2020), the Supreme Court has used mirror orders and video contact arrangements.
Practical options
- Interim custody and visitation — including video calls and holiday contact.
- Mirror orders — matching orders in both countries to protect agreed arrangements.
- Mediation — many courts refer custody disputes to mediation centres.
- Travel conditions — undertakings, passport deposit or security for international travel.
Documents to gather
- Child’s birth certificate, passports and OCI card
- School, medical and activity records
- Any foreign court orders
- Evidence of your involvement in the child’s daily life
- Proposed parenting plan
Common mistakes
- Delaying after a child is brought to India.
- Relying only on a foreign order.
- Speaking badly of the other parent in front of the child or in pleadings.
- Travelling with a child in breach of a court order.
Frequently asked questions
Will an Indian court enforce my foreign custody order?
Not automatically — it is considered, but the court decides on welfare.
Can I see my child while the case is pending?
Courts often grant interim visitation and video contact.
Does the mother always get custody of young children?
Custody of a child under five is ordinarily with the mother under Hindu law, but welfare decides each case.
Related LegalCops services
References
- Guardians and Wards Act, 1890 — Section 9
- Hindu Minority and Guardianship Act, 1956 — Sections 6, 13
- Nithya Anand Raghavan v. State (NCT of Delhi) (2017) 8 SCC 454
- Yashita Sahu v. State of Rajasthan (2020) 3 SCC 67
Last reviewed: November 2026.
The information provided is for general educational purposes only and does not constitute legal advice. Applicable laws and procedures may vary depending on the facts, jurisdiction, and circumstances of each matter. Consult a qualified legal professional before taking action.
