- 19-Sep-2025
- Elder & Estate Planning law
The issue of cross-border parental abduction involves a situation where one parent illegally takes or retains a child in a foreign country, without the consent of the other parent or legal guardian. The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that aims to ensure the prompt return of children who have been wrongfully removed or retained across international borders. However, India is not a signatory to the Hague Convention, which complicates the resolution of cross-border parental abduction cases involving Indian nationals or occurring within or outside India.
Without the protections provided by the Hague Convention, cases of international parental abduction in India are handled differently and often more slowly, relying on other international agreements, domestic laws, and bilateral treaties.
The Hague Convention provides a set of legal procedures for resolving cases of international child abduction. It aims to ensure that children who are wrongfully removed from their country of habitual residence are swiftly returned to that country, where custody disputes can be resolved.
The Convention applies to both legal custody and physical custody, and it emphasizes the best interests of the child as the primary consideration.
India has not signed or ratified the Hague Convention, which means it is not legally bound by its rules and procedures.
As a result, international child abduction cases involving India do not benefit from the streamlined procedures that Hague member countries provide, such as direct applications for the return of children through designated authorities in signatory countries.
This Act is the primary Indian legislation governing child custody and guardianship matters. While it does not specifically address cross-border abduction, it can be used to address the custody aspect of an abduction case, if the child is found within India.
The parent seeking custody can file an application under this Act in a Family Court to determine custody, even if the abduction took place internationally.
If a child is abducted, the IPC provides penalties for kidnapping or abducting a child. Section 360 specifically criminalizes abduction, and Section 363A criminalizes child kidnapping.
These sections can be invoked when a child is unlawfully taken across borders, though enforcement becomes complicated when the child is in a foreign jurisdiction or when the abductor has taken the child to a country that does not cooperate under international treaties.
While India is not a signatory to the Hague Convention, it does have extradition treaties with several countries. In cases of cross-border abduction, Indian authorities can request the return of the abducting parent or child under these treaties.
Bilateral agreements between India and other countries, such as the United States or the United Kingdom, may also provide a framework for resolving such cases, but these agreements are less uniform or standardized compared to the Hague Convention.
Indian courts have the discretion to determine the best course of action in cases of parental abduction. This often involves a detailed inquiry into the facts, such as whether the child has been wrongfully removed and the circumstances of custody.
In cases where the child has been unlawfully removed from India or is being held in India by the other parent, the aggrieved party can file a writ petition under Article 226 of the Constitution of India, seeking direction for the child's return.
Courts also consider the child's habitual residence and best interests when making a decision. The child’s age, emotional connection with each parent, and the nature of the abduction (whether it was premeditated or a spontaneous act) play a role in court decisions.
Although India is not a signatory to the Hague Convention, it is a signatory to the UN Convention on the Rights of the Child (CRC), which calls for the protection of children’s rights, including their right to protection from abduction and exploitation.
This Convention encourages cooperation between countries for resolving international child abduction cases, and Indian courts may refer to the CRC to inform their decisions regarding custody or the child’s return.
Since India is not a member of the Hague Convention, there is no automatic international enforcement mechanism for the return of the child. This can cause delays and complexity in obtaining the child’s return, particularly if the abductor is in a non-cooperative jurisdiction.
Determining the appropriate court for resolving a cross-border abduction case can be complicated. The courts in the country where the child is located may claim jurisdiction, and the Indian court may not have the power to directly enforce foreign custody rulings.
Without the streamlined procedures provided under the Hague Convention, Indian parents may face significant legal costs and delays when trying to retrieve a child taken abroad. The complexity of the case may require lengthy legal battles in both the foreign jurisdiction and India.
In some cases, political or diplomatic considerations may affect the resolution of parental abduction cases. For instance, extradition proceedings can be delayed due to political tensions between India and the foreign country involved.
Suppose an Indian mother, Priya, alleges that her ex-husband, Raj, has taken their 8-year-old son, Aarav, to the United States without her consent. Since India is not a signatory to the Hague Convention, Priya cannot directly apply for Aarav's return under the convention's procedures. However, Priya can:
While India’s non-signatory status to the Hague Convention on the Civil Aspects of International Child Abduction complicates cross-border parental abduction cases, legal avenues such as extradition treaties, bilateral agreements, and Indian domestic laws (like the Guardians and Wards Act) can still be pursued. However, such cases often face delays, jurisdictional complexities, and increased legal costs compared to jurisdictions that are signatories to the Hague Convention. The best interests of the child remain a guiding principle in all international child abduction cases, even if the legal process is less streamlined in India.
Answer By Law4u Team
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