India is not a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, so there is no treaty route for the summary return of a child brought to India. A left-behind parent must ask an Indian court, usually by habeas corpus or under the Guardians and Wards Act, 1890, which decides on the child’s welfare and treats the foreign order as relevant but not decisive. This article explains that test, recent High Court rulings, and the UK, US and Canadian position.
The Hague Convention gap
The Convention obliges Contracting States to return a wrongfully removed or retained child to its country of habitual residence within weeks. The HCCH status table lists over 100 Contracting Parties, including Pakistan and Sri Lanka, but not India.
Reform has stalled. The Law Commission urged accession in its 218th Report (2009) and proposed a domestic return law in its 263rd Report (2018), but the Justice Rajesh Bindal committee advised against accession in 2018, citing mothers fleeing domestic violence. No return law exists as of 2026, so each dispute is decided under the general law, as our family and matrimonial practice regularly sees.
The Supreme Court test: welfare over comity
The starting point is Nithya Anand Raghavan v State (NCT of Delhi) (2017), where a three-judge bench refused to return a British-citizen child to the UK despite a wardship order there. It rejected the mechanical “first strike” rule favouring the court first seised; the foreign order is one factor only. Summary return suits a prompt petition for a child who has not struck roots in India; otherwise an elaborate inquiry follows.
The test cuts both ways. In Lahari Sakhamuri v Sobhan Kodali (2019) the Court ordered two US-citizen children taken from Pennsylvania to Hyderabad returned within six weeks, as the father had moved within twenty days. The latest restatement is Sharmila Velamur v V. Sanjay, 2025 INSC 299, where a three-judge bench reversed the Madras High Court and ordered a young adult with cerebral palsy and a child’s capacity returned to the US.
The principle of comity of courts and a pre-existing order of a Foreign Court must yield to the best interests of the child, especially when the Court has decided to conduct an elaborate enquiry.
Supreme Court, Sharmila Velamur, 2025 INSC 299
- Age of the child, length of stay and settlement in India.
- Delay before the first petition, and breach of any foreign order.
- Allegations of domestic violence and the parent’s realistic ability to litigate abroad.
- A mature child’s views, and whether undertakings or mirror orders make return safe.
Habeas corpus in the High Courts
Because guardianship cases can take years, left-behind parents usually begin with habeas corpus under Article 226 in the High Court where the child is kept. The writ lies only to test whether the detention is contrary to the child’s welfare; it is not a tool for executing a foreign judgment or trying custody.
Two 2026 rulings illustrate this. In Aman Kathpal v Union of India (Delhi High Court, 2 April 2026) a US order favouring the father and the child’s US citizenship were held not conclusive once she had settled in India with her mother. In AB v State of Goa (Bombay High Court at Goa, 21 May 2026) the Court refused to repatriate a three-year-old to Utah, holding that comity cannot be invoked to execute foreign orders through the writ.
The Punjab and Haryana High Court has moved both ways. In April 2025 it ordered a child returned to the mother in Canada after the father overstayed an Ontario court’s travel permission, saying Indian courts cannot be instruments of convenience for foreign litigants dodging their own courts. In Veerpal Kaur v State of Punjab (August 2025) it dismissed a habeas petition as a subterfuge to bypass the guardianship court.
Mirror orders, undertakings and security
Courts letting a child go abroad usually impose safeguards. In Smriti Madan Kansagra v Perry Kansagra (2020) the Supreme Court allowed a father to take the child to Kenya only after obtaining a mirror order from the Nairobi court and depositing Rs 1 crore as security. The sequel is a caution: the father defaulted, the Court recalled its order in 2021 and sentenced him for contempt in 2022, yet the child stayed abroad. A mirror order should be in hand before the child travels.
How UK, US and Canadian courts treat removal to India
English courts decide non-Convention return applications under the inherent jurisdiction, following Re J (A Child) [2005] UKHL 40: welfare is paramount, there is no presumption of summary return, and Hague concepts are not imported by analogy, though the court may consider how Indian courts would decide.
In the United States the Hague remedy is unavailable against India. The Uniform Child Custody Jurisdiction and Enforcement Act treats a foreign country as a US state and recognises Indian orders made in substantial conformity with its standards, subject to a human-rights exception. The International Parental Kidnapping Crime Act (18 U.S.C. § 1204) makes removing a child from the US to obstruct parental rights a federal offence. Ontario’s Children’s Law Reform Act likewise allows a return order for a child habitually resident in Ontario who is wrongfully retained abroad, the classic case being a child kept in India after an agreed holiday.
Frequently asked questions
Can a foreign custody order be enforced directly in India?
No. A foreign order is not executed as such. The parent must approach an Indian court, by habeas corpus or under the Guardians and Wards Act, 1890, which treats the foreign order as one factor in assessing the child’s welfare.
Is taking a child to India without the other parent’s consent a crime in India?
Generally not where the remover is a natural guardian, since kidnapping from lawful guardianship under Section 137 of the Bharatiya Nyaya Sanhita, 2023 (old Section 361 IPC) presupposes removal from a lawful guardian.
How quickly must the left-behind parent act?
As fast as possible. Indian courts weigh the gap between removal and the first petition, and a child settled in India for a year or more is far less likely to be returned by summary order. Delay also weakens the case abroad.
What is a mirror order?
An order of the destination country’s court reproducing the terms fixed by the Indian court, so both parents are bound in both jurisdictions. Indian courts have made relocation abroad conditional on one, with undertakings and security, as in Kansagra.
Sources
- Nithya Anand Raghavan v State (NCT of Delhi), SC, 3 July 2017
- Lahari Sakhamuri v Sobhan Kodali, SC, 15 March 2019
- Sharmila Velamur v V. Sanjay, 2025 INSC 299 (LiveLaw PDF)
- Re J (A Child) [2005] UKHL 40, House of Lords
- HCCH, status table of the 1980 Child Abduction Convention
This article is general information on the law as at 1 October 2026 and is not legal advice. For advice on your own matter, you may contact the firm.
