When one parent lives abroad, an Indian court decides a child's custody on the child's welfare and place of ordinary residence

An Indian court decides the custody of a child on the child's welfare, and a petition about the guardianship of the child's person goes to the court of the place where the child ordinarily resides under section 9 of the Guardians and Wards Act, 1890, which in Bengaluru means the Family Court. India is not a Contracting Party to the Hague Convention on the Civil Aspects of International Child Abduction, 1980, so the remedies for a parent abroad are the Indian statutes and, where a child has been brought to India, a writ of habeas corpus before the High Court. A foreign custody order is only one factor the Indian court weighs, as the Supreme Court said in Nithya Anand Raghavan v. State (National Capital Territory of Delhi) (2017).

Which statutes decide custody, and whom do they cover?

Two Acts do the work. The Guardians and Wards Act, 1890 applies whatever the religion of the parties. Section 7 lets the court make an order appointing or declaring a guardian of the person or property of a minor where it is satisfied that the order is for the welfare of the minor, and section 17 tells it to be guided by what appears, in the circumstances, to be for that welfare. The age, sex and religion of the minor and the character and capacity of the proposed guardian count, and and the preference of a minor old enough to form an intelligent one may be considered.

Section 19(b) withholds the power to appoint or declare a guardian of the person of a minor whose father or mother is living and is not, in the court's opinion, unfit. Custody of, and access to, a minor are dealt with separately, under sections 12 and 25 and in the Family Court's jurisdiction.

The Hindu Minority and Guardianship Act, 1956 sits beside the older Act and does not displace it: section 2 makes it "in addition to" the 1890 Act. It applies to Hindus in any form or development, including Virashaivas, Lingayats and followers of the Brahmo, Prarthana or Arya Samaj, to Buddhists, Jains and Sikhs, and to persons domiciled in India who are not Muslim, Christian, Parsi or Jewish by religion, subject to the exceptions in section 3. Section 1(2) extends it to Hindus domiciled in India who are outside the country, so a parent's residence abroad does not take a domiciled Hindu family outside it.

Section 6 names the father, and after him the mother, as natural guardian of a boy or an unmarried girl, with a proviso that the custody of a minor who has not completed five years "shall ordinarily be with the mother". Section 13 then makes the welfare of the minor the paramount consideration in appointing or declaring a guardian, and section 13(2) denies anyone guardianship by virtue of the Act if the court thinks it will not be for the minor's welfare.

Which court hears the petition when one parent lives abroad?

Section 9(1) of the 1890 Act sends an application for guardianship of the person of a minor to the District Court having jurisdiction where the minor "ordinarily resides". The test is the child's residence, not the parents' nationality or domicile. The Act does not define "ordinarily resides".

Where a Family Court has been established for an area, it stands in the district court's place. Clause (g) of the Explanation to section 7(1) of the Family Courts Act, 1984 gives it the jurisdiction in a suit or proceeding "in relation to the guardianship of the person or the custody of, or access to, any minor", section 7(1)(b) deems it a district court for the purpose, and section 8 excludes the district court from such matters in that area. The Family Court at Bengaluru therefore hears a guardianship or custody petition about a child who ordinarily resides within its area. Section 9 of the Family Courts Act requires it to try, in the first instance and where possible, to persuade the parties to a settlement.

Section 14 of the 1890 Act speaks to rival proceedings: if proceedings to appoint or declare a guardian are taken in more courts than one, each court, on being apprised, stays its own, and the section says how courts under one High Court, or under different State Governments, resolve the position.

What can the court order while the petition is pending?

Section 12(1) lets the court direct the person having custody of the minor to produce the minor at a stated place and time and make such order for the temporary custody and protection of the minor's person or property as it thinks proper. That is the statutory basis for interim custody and for a schedule of meetings with the other parent. The Act lays down no visitation formula.

Section 25(1) deals with a ward who leaves or is removed from the custody of a guardian of the person. If the court is of opinion that it will be for the welfare of the ward to return to that custody, it may order the return and, to enforce the order, cause the ward to be arrested and delivered to the guardian. Welfare, not the fact of removal, is the condition for relief.

Section 26(1) bears on later movement: a guardian of the person appointed or declared by the court, other than a Collector or a guardian appointed by will or other instrument, may not remove the ward from the limits of the court's jurisdiction without its leave, except for prescribed purposes.

Section 47 of the 1890 Act makes certain orders under sections 7, 25 and 26 appealable to the High Court. Section 19(1) of the Family Courts Act allows an appeal to the High Court on facts and on law from every judgment or order of a Family Court "not being an interlocutory order", within thirty days under section 19(3), and section 19(5) shuts out any other appeal or revision.

What happens when the child has been brought to India and a writ is filed?

A High Court may issue writs "in the nature of habeas corpus" under Article 226 of the Constitution, and the Supreme Court may do so under Article 32(2). Neither Article says when the writ issues in a custody dispute between parents; that is left to the courts.

In Nithya Anand Raghavan v. State (National Capital Territory of Delhi) (2017), the Supreme Court said that where the country from which a child has been removed is not a signatory to the Hague Convention, the court in the country to which the child was brought considers the question on the merits with the child's welfare as of paramount importance, and reckons the foreign court's order as only a factor. It may in suitable cases return the child after a summary inquiry, and otherwise makes an elaborate inquiry; in either case welfare is paramount, and a writ of habeas corpus is not a means of simply enforcing a foreign court's directions. Prateek Gupta v. Shilpi Gupta (2018) is another Supreme Court decision relied on in Indian habeas corpus petitions over a child's custody.

Does the Hague Convention apply to a child taken to India?

The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is a treaty of the Hague Conference on Private International Law (HCCH). Its status table lists its Contracting Parties, and India is not among them. The Convention's machinery for the prompt return of a child to the country of habitual residence is therefore not available in an Indian court, whichever country the other parent lives in and even if that country is a Contracting Party. The question is decided on the Indian statutes and the welfare test described above.

An illustration: a child brought to Bengaluru from Singapore

The facts below are hypothetical and the dates are chosen only to show how the periods run. Two Hindu parents domiciled in India and their daughter, born on 14 August 2021, live in Singapore. On 10 January 2026 the mother brings the child to Bengaluru on return tickets dated 10 February 2026. The mother does not go back. On 3 March 2026 the father files a petition in the Family Court at Bengaluru for custody, with an application for interim access.

• 10 January 2026: the child, aged 4 years and 4 months, arrives. Whether residence from this date is "ordinary residence" for section 9 is the first contested point, since the father says the stay was a visit.
• 3 March 2026: the petition is filed, 52 days after arrival. The child is 4 years and 6 months old. The proviso to section 6(a) of the 1956 Act points to the mother's custody ordinarily until the child completes five years, but section 13 still makes welfare paramount.
• 14 August 2026: the child completes five years, 164 days after the petition. From this date the proviso, by its terms, no longer applies, and the question rests on welfare alone.
• 20 November 2026: suppose a final order. An appeal to the High Court under section 19 lies within thirty days, that is, by 20 December 2026. An interlocutory order is outside section 19(1).

If the father instead petitions the High Court of Karnataka for a writ of habeas corpus under Article 226 on 3 March 2026, the Convention still has no part to play: Singapore has been a Contracting Party since 1 March 2011, but India is not.

What remains unsettled?

The Act does not define "ordinarily resides" and section 9 fixes no minimum stay, so how long a child must be in India after living abroad before the Indian court treats the child as ordinarily resident there is left open.

Neither statute mentions a custody order made by a foreign court, so the weight such an order carries, including whether it matters that the other parent took part, is left to the courts.

Finally, section 14 of the 1890 Act is written for Indian courts. Whether a pending foreign guardianship proceeding calls for a stay in India is not provided for in either statute.