What to Do If Your Spouse Takes Your Child Abroad

Child taken abroad by spouse: the short answer

When a child is taken abroad by a spouse, you have two sets of courts to think about: the courts in India, which have power over the parent if that parent has links here, and the courts of the country where the child now lives, which have power over the child. Most successful cases use both, and they start within days, not months.

In Delhi, the usual remedy is a habeas corpus petition in the Delhi High Court under Article 226 of the Constitution, asking the court to direct the other parent to produce the child and bring the child back. The family court can also act under the Guardians and Wards Act 1890 or Section 26 of the Hindu Marriage Act 1955 if a case is already pending there. Neither court can send police officers to London or Toronto to collect a child. What they can do is pass orders that carry real consequences for a parent who has a job, family, property or future plans in India.

If the child has not yet left, the position is much better. A court can restrain travel, direct deposit of passports, and in suitable cases ask immigration authorities to stop the child at the airport. That kind of order can be obtained within a day or two of filing when the danger is real and the papers are ready.

This guide is about the parent left behind in India. If your child was brought into India from abroad and the other parent is asking for return, the guide on habeas corpus petitions for child custody covers how the Delhi High Court approaches those cases.

First, work out which of four situations you are in

The steps depend heavily on where the child is today and on what papers exist. In practice, almost every case of international child removal falls into one of four patterns, and it helps to place yourself honestly in one of them before you speak to a lawyer.

The first is the threatened departure: the child is still in India, but the other parent has booked tickets, applied for a visa, or said openly that they will leave. The second is wrongful removal: the child has been taken out of India without your consent. The third is wrongful retention: you agreed to a trip, for a cousin's wedding in Dubai or a summer with grandparents in New Jersey, and the return date has passed. The fourth is removal in breach of a court order, where a Delhi court had already granted you custody, fixed visitation or restrained travel.

Retention cases are common and often handled badly, because the parent at home keeps hoping the child will come back next week. Courts look closely at when you objected. A clear written message on the day the child was due back is worth more than months of polite requests. Breach-of-order cases are the strongest of the four, because the parent who left has defied an Indian court and exposed themselves to contempt.

If the child has not left yet: stopping the departure

This is where most of the real work can be done. If a matrimonial or custody case is already pending in a Delhi family court, file an urgent application in that case asking the court to restrain the other parent from taking the child out of India and to direct that the child's passport be deposited in court. If nothing is pending, a guardianship or custody petition under the Guardians and Wards Act can be filed with the same urgent prayer, or, where the danger is immediate and the child is already being moved, a habeas corpus petition can go straight to the Delhi High Court.

Passports are the practical pressure point. An Indian passport for a minor is normally issued with the consent of both parents, and a parent can write to the Regional Passport Office in Delhi objecting to the issue or reissue of a passport to the child, attaching any court papers. That letter does not stop a departure on an existing valid passport, which is why a court order is still needed.

When Advocate B.K. Singh is approached by a parent who fears a departure, the first question he asks is where the child's passport is physically kept today and whether the child also holds a foreign passport or an OCI card. A child born in the United States or Canada may travel on that country's passport, which no Indian passport office controls, so the court order has to cover every travel document the child holds, not only the Indian one.

Where the risk is high, courts have also directed immigration authorities to prevent the child from being taken out of the country, and have asked the departing parent to give an undertaking or security before any permitted trip. Ask for these specifically. A vague prayer to restrain the respondent gives the airport officer nothing to act on.

The law that applies when a child is taken out of India

Once the child is abroad: what a Delhi court can and cannot do

An Indian court acts on people, not on places. If your spouse is an Indian citizen with a job in Gurugram, parents in Janakpuri and a flat in Dwarka, a Delhi High Court order directing the child's return is something that parent cannot easily ignore. Disobedience can lead to contempt proceedings, orders against the passport, and adverse findings in the custody and divorce cases that will eventually be decided here.

If the other parent has settled abroad for good, holds foreign citizenship and has nothing left in India, an Indian order is mainly useful as evidence. It shows the foreign court that the child's home was in India, that you objected at once, and that an Indian court has looked at the facts. That still matters, often a great deal, but it will not by itself bring the child home.

The Delhi High Court can issue notice to the parent abroad by email, through relatives in India and through the Indian mission, and it can hear the parent over video conferencing. Many international child removal cases settle on a parenting plan with travel in both directions once both sides see that a long fight across two countries will help nobody.

Going to court in the country where the child now is

In most cases you will need a local lawyer in the foreign country and should instruct one within the first week or two. The foreign court has the child within its reach, its orders are enforced by its own police, and it will decide quickly whether it has jurisdiction. Many countries decide that question by asking where the child was habitually resident before the move. A child who lived in Delhi for five years, went to school in Vasant Kunj and flew out last month is, on any fair view, a Delhi child. Your job is to prove that early, with documents.

Because India is outside the Hague Convention, the foreign court will usually apply its own law on custody or its own inherent powers over children, rather than a Hague return procedure. Courts in England, for instance, have ordered children returned to India using their own welfare-based jurisdiction, and courts in other countries have done the same; but outcomes vary from country to country and case to case.

The Indian embassy and the National Commission for Women's cell for NRI marriages can help with some practical steps, but neither can take a child from one parent and hand the child to the other. Put your effort into the two courts.

Coordinate the two cases. A statement made in the foreign court that contradicts your Delhi petition will be used against you in both places. One chronology, one set of dates and one honest account should run through every document you sign.

Which court in Delhi hears it, and why

The Delhi High Court can hear a habeas corpus child abroad petition if the child was ordinarily living in Delhi before removal, or if part of the cause of action arose in Delhi, for example the removal or the refusal to return began here (Article 226(2)). If the child lived with you in Noida or Gurugram, the petition normally belongs to the Allahabad High Court or the Punjab and Haryana High Court, unless something material happened in Delhi. Filing in the wrong court costs days you do not have.

At the Delhi High Court, habeas corpus petitions are filed as criminal writ petitions and are generally listed before a Division Bench under the court's roster. That matters for two reasons: urgent listing is available, and the next stage after a Division Bench order is the Supreme Court, not another High Court bench. If you need a hearing the same day or the next day, the guide on urgent mentioning in the Delhi High Court explains how it works.

The family court is the right forum when a divorce, custody or guardianship case is already pending there, or when the matter is less urgent. Under Section 9 of the Guardians and Wards Act, the guardianship petition goes to the court where the minor ordinarily resides, and the Supreme Court said in Ruchi Majoo v. Sanjeev Majoo (2011) that this is a question of fact about where the child's home really was. A few weeks in a foreign city does not make that city the child's ordinary residence.

This is a private law firm website, not the Delhi High Court's website. For official case status, cause lists and filing rules, use the court's own website.

What to do, step by step

These steps assume the child was living in Delhi. Do the first three on the same day if you can.

1. Object in writing, today

   Send the other parent a short, calm message by email and WhatsApp saying that you do not consent to the child being taken or kept abroad, and asking for the child's return by a named date. Do not threaten or abuse. This message fixes the date of your objection, which courts in both countries will look at.

2. Report it and secure the documents

   Give a written complaint at your local police station and keep the receipt or DD entry number, even if the police say it is a civil matter. Write to the Regional Passport Office objecting to any passport service for the child. Collect the child's passport details, OCI or foreign passport numbers, and any visa information you can find.

3. Write the chronology

   Prepare a one-page dated list: the marriage, the child's birth, where the child lived and studied, who looked after the child, when the trip was planned, when the child left and when you objected. Attach every document that supports a date. This page becomes the spine of every petition you file.

4. File in the right Delhi court

   If a case is pending in the family court, move an urgent application there. Otherwise, file a habeas corpus petition in the Delhi High Court with a prayer for production and return of the child, interim video contact, and a restraint on further movement. Ask for an urgent listing and explain why it cannot wait.

5. Instruct a lawyer abroad

   Find a family lawyer in the city where the child now is and send the chronology and Delhi papers. Ask specifically how that court decides jurisdiction and how quickly it can hear an application. Keep both lawyers informed of every development.

6. Attend the hearings, including by video

   The Delhi High Court will usually issue notice, may direct the other parent to appear by video, and may arrange a video interaction with the child. Be on time, keep answers short and stay focused on the child.

7. Consider mediation seriously

   If the court refers the parents to mediation, use it to build a concrete plan: where the child lives, school, holidays, travel security and video calls. A signed settlement recorded by the court can be made into a mirror order in the foreign court, which makes it enforceable in both countries.

Time and cost at each stage (typical ranges, not promises)

Documents to collect

How the Delhi High Court decides these cases

The welfare of the child decides the case, and it overrides the rights of either parent. In Nithya Anand Raghavan v. State (NCT of Delhi) (2017), a case that began in the Delhi High Court, the Supreme Court held that Indian courts decide inter-country custody disputes on welfare, and may hold either a quick summary inquiry or a fuller one. Later decisions, including Yashita Sahu v. State of Rajasthan (2020), confirmed that a writ can be filed against a parent who has taken a child from the other parent's lawful custody and that the child has a right to both parents.

Within welfare, judges look at continuity: who has actually been bringing up the child, where the child has been going to school, which language the child is comfortable in, and how settled the child is now. Time works against the parent left behind. A child who has spent two school years abroad and made friends there will be harder to move again, and judges are reluctant to uproot a child twice.

Advocate B.K. Singh's practice in these petitions is to put a short, dated chronology on the first pages of the file, ahead of the legal grounds, so the Bench sees in two minutes where the child lived, when the child was taken and how fast the parent objected. In removal cases, the speed of the reaction often tells the court more than any argument about the other parent's character.

The way the child was taken also counts. A secret departure, false statements to get a visa, or removal in breach of an order all weigh against the parent who did it. On the other hand, a parent who fled India to escape violence will have that considered seriously, and the court will want to hear that side before ordering anything.

Criminal complaints, passports and other pressure points

When a child is taken abroad by a spouse, many parents want the police to register a kidnapping case. In practice, Delhi Police rarely do so against a parent where no court order existed, because both parents are natural guardians and the law treats this mainly as a custody dispute. A complaint should still be given and its receipt kept, because it records the date and shows you acted. Where a court order was defied, the position changes, and the court that passed the order can itself take action for contempt.

Passport and travel measures can follow a defied order. The court can direct the passport authority to act against the passport of the parent who disobeyed, or ask for a look out circular so that the parent is stopped on the next visit to India. Courts use these steps in proportion, to secure the child's return or the parent's appearance.

Be careful about using criminal complaints such as dowry or cruelty cases mainly as a bargaining chip in a custody fight. Judges in both countries see through it, and it can damage your credibility on the one question that matters, which is where your child should grow up. If there are genuine allegations, pursue them on their own merits.

Mistakes that make a bad situation worse

• Waiting for the child to come back on their own. Each week of silence can later be read as consent. Object in writing at once, even while you keep talking.
• Signing a broad travel consent. A letter that lets the child travel abroad without a return date can be shown in a foreign court as agreement to relocation. Always name the place and the return date.
• Filing only in India when the other parent has no ties here. The Delhi order may be ignored. Start in the foreign court too, quickly.
• Filing in Delhi when the child lived in Gurugram or Noida. The petition may be returned and refiled elsewhere, losing time you cannot recover.
• Contradictory accounts. A different date or story in the foreign court and the Delhi court damages you in both. Use one chronology.
• Trying to snatch the child back. Taking the child back from abroad without an order can expose you to criminal charges in that country and will count against you in every court that hears the case later.

If you are the parent who took the child abroad

If you have taken your child out of India and received notice from a Delhi court, do not ignore it. Join the hearing, by video if necessary, and explain your reasons: a job, the child's schooling, family support, or escape from violence. Indian courts decide on welfare, and a parent who engages with the court and offers generous contact to the other side is in a far better position than one who stays silent.

If you plan a move but have not left, ask for permission first. A family court in Delhi can permit relocation with conditions, such as holidays in India, video contact and security for return, and a parent who moves with permission avoids the contempt, passport and credibility problems described above. For the wider picture of custody changes, see the guide on whether the Delhi High Court can change a custody order.

Foreign courts look at your conduct too. Our page on NRI divorce, foreign decrees and child removal cases covers the related questions of divorce and foreign orders, and the guide on whether a foreign divorce decree is valid in India explains how Indian courts treat a decree obtained abroad.

What to do this week

Send your written objection today, give the police complaint and write to the passport office. Then sit down and write the one-page chronology, and gather the child's passport details, school records and the messages about the trip. If the child is still in India and departure is near, the urgent application cannot wait until next week.

If the child has already left, decide within days whether to file a habeas corpus petition in the Delhi High Court, and speak to a lawyer in the country where the child is. Keep up video contact with the child if it is being allowed, and keep a log of every refused call. The guide on how visitation rights work for parents in Delhi explains how contact is usually structured once a court is involved, and the firm's page on child custody and habeas corpus for a child explains how we handle these cases.

For advice on your papers in a child removal case, or for updates on the law, contact Advocate B.K. Singh.