In short. If your husband, wife or in-laws have taken your child and you are being kept away, you can ask a Delhi family court for interim custody or visitation under the Guardians and Wards Act, and in urgent cases ask the Delhi High Court for a writ of habeas corpus under Article 226. Both apply where a child is brought to Delhi from abroad, or about to be taken out of India. Urgent interim orders can come within days or weeks; final custody takes longer. This week, collect the child's documents and write down exactly what happened.
Is this your situation?
- Your spouse left the matrimonial home with your child and is not letting you meet or speak to the child.
- Your in-laws are keeping the child after a quarrel and the police say it is a family matter.
- Your spouse brought the child from the US, UK, Canada, Australia or the Gulf to Delhi and refuses to go back.
- A foreign court has ordered the child's return and you want that order respected in India.
- You fear your spouse is about to take the child out of India, or has already done so.
- A family court in Delhi gave you visitation but the other parent keeps breaking it.
- You have the child and have just been served with a habeas corpus petition from the High Court.
The first 48 hours after a child is taken
Write down what happened while it is fresh: the date and time the child was taken, by whom, from where, what was said, and where you believe the child is now. Keep screenshots of messages and call logs. Find the child's passport, birth certificate, school identity card and medical records, or note where they are if the other parent has them. These details become the first pages of any petition.
Inform the local police station in writing if the child was taken by force, if a third person took the child, or if you fear the child will be taken out of India. Police in Delhi usually treat a dispute between two parents as a civil matter and will not take the child back from the other parent without a court order. A written complaint still creates a dated record and may help later. If you have reason to think the child is in danger, say so specifically.
Do not try to snatch the child back. Courts look closely at how each parent behaved, and a counter abduction can damage your case even if the first removal was wrong. Ask instead for a quick court order: interim custody or visitation from the family court, or a habeas corpus writ from the High Court where the situation calls for it.
The law that governs child custody in Delhi
Guardians and Wards Act 1890
The general law on guardianship and custody for all religions. Section 7 lets the court appoint or declare a guardian; Section 9 places the case where the child "ordinarily resides"; Section 12 allows interim orders for temporary custody and protection; Section 17 makes the welfare of the minor the guiding consideration; Section 25 allows the court to order the return of a ward removed from a guardian's custody.
Hindu Minority and Guardianship Act 1956
For Hindus, Sikhs, Jains and Buddhists. Section 6 names the natural guardians and provides that custody of a child below five years shall ordinarily be with the mother. In Gita Hariharan v. Reserve Bank of India (1999) the Supreme Court read the word "after" in Section 6(a) so that the mother is also a natural guardian during the father's lifetime. Section 13 makes the child's welfare the deciding consideration, above the rights of either parent.
Section 26, Hindu Marriage Act 1955
Where a divorce or other matrimonial case is pending, the court can pass interim and final orders on custody, maintenance and education of children in the same case. Similar provisions exist under the Special Marriage Act 1954.
Article 226 of the Constitution: habeas corpus
The High Court can direct that a person who is holding a child produce the child in court. In Yashita Sahu v. State of Rajasthan (2020) the Supreme Court confirmed that a habeas corpus petition is maintainable for a child held by one parent, and that the court decides on the child's welfare rather than on strict legal rights.
Family Courts Act 1984
Section 7 gives the family courts jurisdiction over guardianship and custody of minors. In Delhi, guardianship and custody petitions are filed in the family court of the district where the child ordinarily resides, and Section 19 provides an appeal to the High Court within 30 days.
Family court petition or habeas corpus: which one fits
The family court is the normal forum. A petition under Sections 7 and 25 of the Guardians and Wards Act, with an application for interim custody or visitation under Section 12, lets the court hear both parents, interview the child, call for a report from a counsellor and decide on evidence. It takes longer, but the result is detailed and can be adjusted as the child grows. Where a divorce case is already pending, the custody application goes in that case under Section 26 of the Hindu Marriage Act.
Habeas corpus in the High Court is meant for situations where the child's custody is plainly illegal or the matter cannot wait: a child below five taken from the mother by force, a child being hidden, a child held by grandparents or relatives who have no right to custody, a child brought to Delhi in breach of a foreign court's order, or an imminent threat of removal from India. In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019) the Supreme Court explained that the writ is an extraordinary remedy and will be used where the ordinary remedy would be ineffective.
The High Court may decline a habeas corpus petition and send the parties to the family court if the dispute needs a full inquiry into which parent should have custody, especially where both parents are natural guardians and the child is safe. When Advocate B.K. Singh is deciding between the two routes, he asks one question first: is the child safe where it is today? If yes, the family court with an urgent interim application is usually the better path. If no, or if the child may be moved out of reach, the High Court is approached at once.
Which court hears it and why
A guardianship or custody petition goes to the family court for the place where the child "ordinarily resides" under Section 9 of the Guardians and Wards Act. That means where the child has been living with some permanence, not a place to which the child was taken a week ago. A child who lived with both parents in Dwarka until last month is ordinarily resident in South West Delhi, and the petition goes to the family court at Dwarka even if the father has since taken the child to his parents' home in Lucknow. Delhi's family courts sit at Tis Hazari, Saket, Karkardooma, Rohini, Dwarka, and Patiala House; our page on Delhi's family courts sets out which covers which area.
A habeas corpus petition goes to the High Court within whose territory the child is being held, or where part of the cause of action arose. If the child is now in Gurugram or Faridabad, the Punjab and Haryana High Court is ordinarily the forum; if in Noida or Ghaziabad, the Allahabad High Court. The Delhi High Court can act where the child is in Delhi, or where the person holding the child is in Delhi and can be directed to produce the child. In the Delhi High Court, habeas corpus petitions are generally listed before a Division Bench under the roster, as a criminal writ petition.
Where the child is abroad, an Indian court can still pass orders against a parent who is in India or who submits to its jurisdiction, but it cannot send its bailiff to another country. In such cases the case in India usually runs alongside proceedings in the foreign court.
What the High Court does in a habeas corpus petition for a child
On the first date, if the petition shows urgency, the Division Bench issues notice to the respondent parent and directs the police to produce the child, or directs the parent to produce the child, on a fixed date. The court often meets the child in chambers, talks to both parents, and refers them to the Delhi High Court Mediation and Conciliation Centre. Interim visitation or video calls may be ordered from the first hearing.
The court does not decide who is the "rightful" parent in the abstract. It asks whether the present custody is harmful to the child or plainly unlawful, and what arrangement serves the child's welfare until the family court or the foreign court decides finally. For a very young child taken from the mother who was the primary caregiver, the court may restore custody quickly. For an older child settled in school with one parent, the court may leave the child where it is and order generous visitation.
A habeas corpus order is not a final custody decree. It sets an arrangement, and the detailed custody question returns to the family court or, in an inter-country case, may be left to the court of the country where the child habitually lived. Our guide on a habeas corpus petition for child custody answers the common questions, and the page on habeas corpus in the Delhi High Court covers the writ more generally.
A child brought to Delhi from abroad
This is now one of the most frequent custody situations before the Delhi High Court. An Indian couple living in New Jersey, London or Melbourne visits India; one parent stays back with the child and refuses to return. The other parent obtains an order from the foreign court for the child's return and files a habeas corpus petition in Delhi.
India has not signed the Hague Convention on the Civil Aspects of International Child Abduction, so there is no automatic return mechanism. Indian courts decide on the child's welfare, giving weight to the foreign court's order as a matter of comity but not treating it as binding. In Nithya Anand Raghavan v. State (NCT of Delhi) (2017), an appeal from the Delhi High Court, the Supreme Court refused to order a child's return to the UK and held that the child's best interests decide. In Lahari Sakhamuri v. Sobhan Kodali (2019), Rohith Thammana Gowda v. State of Karnataka (2022) and Vasudha Sethi v. Kiran V. Bhaskar (2022), on the other hand, the Supreme Court upheld or directed the return of children to the US, looking at how short the stay in India had been, the child's schooling and roots abroad, and undertakings from the parent seeking return.
The factors that carry weight are practical: how long the child has been in India, whether the child has settled into a school here, the child's age and wishes if mature enough, the child's nationality and immigration status, which parent was the primary caregiver, whether the foreign court acted promptly, and whether the left behind parent offers undertakings (housing, maintenance, not pursuing criminal charges, sharing costs of travel). A parent who moves quickly has a better chance than one who waits a year while the child settles in Delhi.
Stopping a child from being taken out of India
If you fear removal, act before it happens. The family court or the High Court can direct that the child's passport be deposited in court, restrain the other parent from taking the child out of India without permission, and direct the authorities to act on that order. A copy of the restraining order can be sent to the Regional Passport Office with a request that no passport or re-issue be granted to the child without your consent or the court's permission. Where the risk is serious, courts have in suitable cases directed immigration authorities to be informed.
If the child has already been taken abroad, the remedy is mainly in the country where the child now is. Because India is not a party to the Hague Convention, its quick return procedure is generally not available for a child taken from India, and the left behind parent usually has to start custody proceedings in the courts of that country, with a local lawyer. In parallel, an Indian court can pass orders against the removing parent if that parent has property, a job or a pending case here, and a custody or guardianship order from Delhi can support your case abroad. Our guide on what to do if your spouse takes your child abroad covers this in more detail, and our page on NRI matrimonial disputes covers the divorce and maintenance side.
Step by step: getting an urgent custody order in Delhi
The order of steps below assumes the child is with the other parent and you want custody or contact restored quickly.
Record the facts and collect papers
Prepare a short chronology with dates: the marriage, the child's birth, where the child has lived and studied, who did the daily caregiving, and the date and manner of removal. Gather the child's birth certificate, passport, school records and photographs that show your role in the child's life.
Choose the forum
Decide between a family court petition with an interim application and a habeas corpus petition in the High Court, based on urgency, the child's safety and where the child is. If a divorce case is already pending, the custody application usually goes in that case.
Draft and file with an urgent application
The petition sets out the facts, the child's welfare and the specific interim order sought: return of custody, visitation on fixed days, video calls, deposit of passport, restraint on removal. File affidavits and documents together; a petition without the child's documents is weaker at the first hearing.
First hearing and interim directions
In the High Court the Division Bench may direct production of the child on the next date and order interim contact. In the family court the judge may grant interim visitation, refer the parties to counselling and fix a date for the child to be brought to court.
Meeting the child and mediation
Judges commonly speak to the child in chambers, without either parent, to understand the child's wishes and comfort. Parties are usually referred to mediation. Many custody disputes settle at this stage into a parenting plan covering residence, holidays, schooling and travel.
Final hearing or settlement
If no settlement is reached, the family court records evidence and decides custody; the High Court in a habeas corpus petition disposes of the matter with an arrangement and leaves final custody to the family court. A settlement is recorded as an order of the court and is enforceable.
If an order is not followed, an execution or contempt application is filed in the court that passed it. Repeated breaches can lead to a change in custody.
Time and cost at each stage
| Stage | Typical time | Court fee and costs (general) |
|---|---|---|
| Drafting the petition and urgent application | Two to seven days | No court fee at this stage |
| Filing and first listing in the family court | One to three weeks; earlier if urgency is shown | A small fixed court fee; check the current schedule |
| Habeas corpus filing and first listing in the High Court | A few days, sometimes the next working day after mentioning | A nominal fixed court fee on the writ |
| Interim visitation or custody order | First to third hearing | No separate court fee beyond the application |
| Counselling and mediation | One to three months | Court-annexed mediation does not charge a fee |
| Evidence and final custody order in the family court | One to three years | Process fees, certified copies, travel costs for witnesses |
| Appeal to the Delhi High Court under Section 19 | File within 30 days; decided in one to three years | A fixed court fee on the appeal |
Documents to collect for a custody case
About the child
- Birth certificate
- Passport and visa or OCI card, if any
- School admission records, report cards and fee receipts
- Medical and vaccination records
- Photographs and videos showing the child's routine with you
About the dispute
- A dated chronology in your own words
- Messages, emails and call logs about the removal and refused contact
- Police complaint and acknowledgment, if filed
- Any order already passed by an Indian or foreign court
- Marriage certificate and papers of any pending matrimonial case
About you
- Proof of residence and the home where the child would live
- Proof of income and working hours
- Names of family members who would help with care
- If abroad: passport, visa status and power of attorney for a representative in Delhi
How Delhi courts decide what is in the child's welfare
Welfare is not about which parent earns more. Courts look at who has been the primary caregiver, the child's age and health, continuity in schooling and surroundings, the child's own wishes once the child is old enough to form an intelligent preference, the presence of siblings, the home each parent can offer, and each parent's willingness to let the child have a relationship with the other. A parent who poisons the child against the other parent loses credibility quickly.
Children below five are ordinarily kept with the mother under Section 6(a) of the Hindu Minority and Guardianship Act, but this is not absolute: a mother who is unable to care for the child, or who has left the child with others, may not get custody only because of the child's age. Fathers do get custody, particularly of older children who are settled with them, and joint or shared parenting arrangements are increasingly ordered. Our guide on whether a father can get custody of a child in India explains the position.
The child's interview in chambers matters a great deal. Judges are alert to tutoring: a nine year old who repeats adult phrases about the other parent's "character" is not giving a free view. A genuine and steady preference of a twelve or fourteen year old is given serious weight.
Interim custody and visitation while the case is pending
The interim arrangement often becomes the long term arrangement, because courts are reluctant to disturb a child who has settled. That is why the first interim application matters so much, and why delay hurts the parent who is out of contact. Ask for specific, workable terms: weekend visits from Saturday 11 am to Sunday 5 pm, alternate holidays, video calls on fixed days at fixed times, handover at a stated place.
Where there are allegations of violence, substance abuse or a real risk of removal, courts order supervised visits, visits in the court's children's room or at a counselling centre, or video calls only to begin with. Unsupervised overnight access usually follows once things settle. Our guide on how visitation rights work for parents in Delhi explains the usual arrangements.
Keep a simple diary of every visit and call: date, time, what happened, whether the other parent cooperated. If the arrangement is broken, a dated record is far more persuasive than a general complaint.
The police, FIRs and why criminal cases rarely solve custody
Kidnapping under Section 137 of the Bharatiya Nyaya Sanhita (old Section 363 IPC) is defined as taking a child out of the keeping of the lawful guardian. Since both parents are usually natural guardians, police are reluctant to register a kidnapping case against a parent, and courts have often quashed such FIRs where there was no court order in place. The position changes where a parent takes the child in breach of an existing custody order, or where a third person takes the child.
A parent who files an FIR mainly to pressure the other side often finds that it slows the custody case, sours mediation and invites a counter case. The faster route to getting your child back is almost always a civil order with the police directed to help enforce it.
If you are the parent who has the child and an FIR has been registered against you, take legal advice at once; protection from arrest may be needed, and our page on guardianship of a minor explains how a formal guardianship order can settle the question of lawful custody.
If you are the parent who has the child
A habeas corpus notice from the High Court is not an accusation of a crime, but it must be taken seriously. Produce the child when directed. File a reply explaining why the child is with you, how the child is doing, the school, the caregiving, and why the present arrangement serves the child's welfare. Bring documents, not adjectives. Offer reasonable contact to the other parent; courts notice which parent is generous.
If you brought the child to Delhi from abroad, explain the reasons honestly: violence, abandonment, immigration problems, health. Courts do consider these, and a parent who left an abusive home with a child is not treated the same way as a parent who simply did not want to return. At the same time, do not hide the child or keep shifting addresses. That behaviour is the quickest way to lose interim custody.
Mistakes parents make in custody fights
- Waiting. Weeks turn into months, the child settles with the other parent, and the court is then reluctant to move the child.
- Self help. Snatching the child from school or from the other parent's home usually backfires.
- Wrong forum. Filing in Delhi when the child ordinarily lives in Gurugram, or filing habeas corpus where a family court petition was the right step, wastes time.
- Vague prayers. Asking for "custody" without proposing a concrete visitation schedule leaves the court to guess.
- Using the child as a witness. Coaching the child or showing the child the pleadings is visible to judges and counsellors.
- Ignoring the foreign court. In inter-country cases, not appearing in the foreign case can lead to orders there that later weigh against you in India too.
A made-up example: a four year old brought from Canada
Here's a made-up example. Arjun, a software engineer in Toronto, travels to Delhi with his wife Neha and their four year old daughter for a wedding. Neha refuses to return and moves to her parents' home in Janakpuri with the child. Arjun obtains an interim order from an Ontario court directing the child's return and files a habeas corpus petition in the Delhi High Court within five weeks.
Neha's reply says Arjun worked long hours, she did all the caregiving, and his mother's behaviour made life at home unbearable. The Division Bench meets the child, refers the couple to the High Court's mediation centre and orders daily video calls and weekend visits for Arjun while he is in Delhi.
Mediation produces a draft arrangement: Neha and the child return to Canada, Arjun gives undertakings to provide separate accommodation and maintenance and not to press any police complaint, and the child spends long summer holidays in India. Had Neha shown violence at home, or had the child been in a Delhi school for two years, the result could have been quite different.
After the order: appeal, modification and enforcement
A final custody order of a Delhi family court can be appealed to a Division Bench of the Delhi High Court under Section 19 of the Family Courts Act within 30 days; see our page on appeals against family court orders. A habeas corpus order of the Division Bench can be challenged only in the Supreme Court by special leave petition.
Custody orders are never frozen. As the child grows, changes school, moves city or expresses a steady preference, either parent can apply to modify the arrangement. Our guide on whether the Delhi High Court can change a child custody order explains when this succeeds.
When the other parent breaks a custody or visitation order, apply in the court that made it for enforcement. The court can direct police help, impose costs, attach property or, in serious cases, change custody. When Advocate B.K. Singh drafts an enforcement application, he attaches the diary of missed visits and the messages refusing contact, because judges act on a pattern, not on a single missed weekend.
What to do this week
Write your chronology. Collect the child's documents and the messages about the removal. If you fear the child will be taken out of India, act on that first, through the court, and inform the passport office in writing once you have an order. If you are abroad, arrange a power of attorney for a trusted person in Delhi and keep your passport and visa details ready for the court. Avoid confrontations at the other parent's home.
Fees are discussed at the first meeting and agreed in writing, stage by stage. For advice on your child custody papers, or for updates on how the Delhi courts are deciding custody and inter-country cases, contact Advocate B.K. Singh.
Frequently asked questions
Can the police get my child back from my husband in Delhi?
Usually not without a court order, because both parents are natural guardians and police treat it as a civil dispute. Once a family court or the High Court passes a custody order, police can be directed to help enforce it. A written complaint is still useful as a dated record.
How fast can I get interim custody of my child in Delhi?
In urgent cases a habeas corpus petition can be listed in the Delhi High Court within days, and the child may be ordered to be produced on the next date. In the family court, an interim custody or visitation order often comes within a few weeks. There is no fixed timeline and courts move faster where the child is very young or at risk.
Is India part of the Hague Convention on child abduction?
India has not signed the Hague Convention on the Civil Aspects of International Child Abduction, so there is no automatic return of a child brought to India. Indian courts decide on the child's welfare and give weight to foreign court orders as a matter of comity. Check the current position, as proposals to change this have been discussed.
Can a mother lose custody of a child under five?
Yes, though it is uncommon. Section 6(a) of the Hindu Minority and Guardianship Act says custody of a child under five shall ordinarily be with the mother, but welfare decides. If the mother cannot care for the child or has left the child with others for long periods, the court may give custody to the father.
At what age does the court ask the child who they want to live with?
There is no fixed age. Judges often speak to children from about seven or eight upwards, and give more weight to the steady preference of a child of twelve or more. Tutored answers are discounted.
My wife took our child to her parents' home in Ghaziabad. Where do I file?
A custody petition goes to the family court where the child ordinarily resided, which may still be Delhi if the child lived in Delhi until recently. A habeas corpus petition goes to the High Court where the child is held, which for Ghaziabad is ordinarily the Allahabad High Court. The right choice depends on how long the child has been away.
Can I file a child custody case from abroad?
Yes. The petition can be signed and the affidavit attested abroad, and a representative in Delhi can be given a power of attorney for filing and day to day steps. The court may require you to appear by video or in person at key hearings, especially when the child is to be met.
Does a foreign custody order have to be followed in India?
A foreign custody order is not automatically enforced. Indian courts treat it as an important factor and give weight to comity, but they decide afresh on the child's welfare. A prompt foreign order and a short stay in India make return more likely.