The trip was agreed. Three weeks, grandparents, a wedding. The messages got shorter around the second week. Then the return flight was missed and there was a reason, and then there was another reason, and now there is a school admission in Pune that nobody discussed with you.
You have spoken to a lawyer where you live. They have told you India is not a signatory to the Hague Convention and there is not much they can do from there. That part is correct. What follows from it is almost always explained wrongly.
What the gap actually is
The Hague Convention works by agreement between the countries that have joined it. Where it applies, the receiving country does not decide who should have custody. It decides one narrow question: was the child wrongfully removed from their habitual residence. If the answer is yes, the child goes back, and the courts of the home country decide custody. It is deliberately mechanical, and it is fast because it is mechanical.
India has not joined. The Law Commission recommended accession in 2009. Draft bills were prepared in 2016 and 2018. Neither became law. India's stated objection is that the Convention's concept of habitual residence sits awkwardly against the standard Indian courts apply, which is the welfare of the child. The United States State Department has repeatedly listed India as showing a pattern of non-compliance in international parental child abduction cases.
So there is no central authority to apply to, no treaty obligation to return the child, and no mechanical answer.
What there is instead is a body of Indian case law considerably more favourable to the left-behind parent than most foreign lawyers realise. Indian courts have ordered children returned to the United States, the United Kingdom, Australia and elsewhere in a long line of cases. They do it on their own reasoning rather than under a treaty. That makes the outcome less certain, and it means the case has to be run properly, because nothing about it happens automatically.
What an Indian court will do with your custody order
Worth understanding before you spend money on it.
Your order from New Jersey or Ontario or Surrey is not enforced in India. An Indian court will not execute it and will not sit in appeal over it. What it will do is treat the order as important evidence going to a question it decides for itself: what is in the welfare of this child.
The principles have been worked out over four decades.
The court with the closest concern. In Surinder Kaur Sandhu v. Harbax Singh Sandhu (1984) the Supreme Court held that the law of the place with the most intimate contact and closest concern for the child's wellbeing should govern. Where a child was born abroad, has lived there their whole life, goes to school there and has medical records there, that court is ordinarily better placed to decide custody than a court in a city the child has been in for eleven weeks.
The foreign order is a factor, not the answer. Dhanwanti Joshi v. Madhav Unde (1998) established that a court in the country to which a child has been removed considers the matter on its merits, with welfare paramount, treating the foreign order as one factor among several.
Comity, exercised as self-restraint. Surya Vadanan v. State of Tamil Nadu (2015) framed comity of courts as judicial self-restraint. An Indian court should ordinarily defer to the court of the child's home jurisdiction unless there is a compelling reason not to.
But welfare still comes first. Nithya Anand Raghavan v. State (NCT of Delhi) (2017) held that a court may decline to order return where satisfied that return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable position, and that comity cannot be given primacy over welfare.
Ordinary residence cannot be manufactured. Lahari Sakhamuri v. Sobhan Kodali (2019) declined jurisdiction where the children had no ordinary residence in India, holding that fortuitous or wrongful circumstances cannot be used to create a forum. The same judgment set out the welfare factors a court weighs: maturity and judgment, mental stability, access to schooling, moral character, continuing involvement in the community, financial sufficiency, and the nature of the relationship with the child.
Habeas corpus is available. Yashita Sahu v. State of Rajasthan (2020) confirmed that a habeas corpus petition is maintainable in custody matters wherever the welfare of the child demands it, even against a parent who holds custody. The same judgment directed daily video contact for the parent out of custody, which has since become a standard interim protection.
Statutory presumptions yield. Vasudha Sethi v. Kiran V. Bhaskar (2022) confirmed that the maternal preference for a child under five under Section 6 of the Hindu Minority and Guardianship Act is a rebuttable presumption which gives way to welfare. It is not an entitlement.
Read together: an Indian court will usually be sympathetic to the argument that a child taken from a settled life abroad should go back and have custody decided there, provided the parent asking moved quickly and comes with clean hands.
Why the first few weeks decide the case
There is no formal time limit. There is something more powerful than a time limit, which is that the longer a child is in India, the more the facts change in favour of the parent who brought them.
A child who has been in Delhi six weeks has been on an extended holiday. A child who has been in Delhi fourteen months is enrolled in a school, has friends, speaks the language better, has a doctor and a routine, and may well tell a judge they are happy. At that point the argument that the child should return to a settled life abroad has to contend with the fact that the settled life is now here. Courts notice this, and they are supposed to. Welfare is assessed as it stands at the hearing, not as it stood at the airport.
Delay also gets read as acquiescence. A parent who waited eleven months will be asked why, and "I was told nothing could be done because of the Hague Convention" is an answer that costs the case much of its force.
So the most useful single step is to get a proceeding on the record in India early, even a holding proceeding, so the position is frozen and time stops running in the other parent's favour.
What actually gets filed
A habeas corpus petition before the High Court under Article 226, seeking production of the child and a direction for return to the jurisdiction of their habitual residence. This is the principal remedy where a child has been retained in breach of a foreign order or without consent. It is heard by a Division Bench, it moves faster than anything else available, and the High Court can pass immediate interim directions: surrender of passports, restraint on removing the child from a city, video contact, a report on the child's circumstances.
The court will conduct either a summary inquiry, enough to assess immediate welfare and risk before sending the substantive custody question back to the court of habitual residence, or an elaborate inquiry into custody itself. Which of the two the court adopts is often the whole case. It is heavily influenced by how long the child has been in India and by how the petition is framed.
Proceedings under the Guardians and Wards Act, 1890 before the district court or family court, where the question is guardianship and custody on the merits. Slower, and appropriate where an elaborate inquiry is inevitable or where interim custody or access has to be secured.
An application for interim custody or access, which is often the practical objective in the first month. An interim order giving you defined access, or simply recording the child's presence and restraining removal, is worth having while the larger question is unresolved.
Passport and travel measures, where there is a real risk of the child being moved again.
Recognition steps where a foreign decree has to be brought properly before the Indian court under Section 13 of the Code of Civil Procedure, which sets out the grounds on which a foreign judgment is not conclusive, including that it was not given on the merits, or was obtained in breach of natural justice.
Undertakings, and why they matter more than they look
A recurring obstacle is that the parent who brought the child to India is facing, or fears, criminal consequences abroad. A warrant, a charge of international parental kidnapping, an immigration difficulty. Where that is the position, they have every incentive to stay in India and fight, and the case gets longer and worse for everyone, the child included.
Indian courts routinely condition return orders on undertakings from the parent seeking return: that criminal proceedings will be withdrawn or not pressed, that the returning parent will have somewhere to live and a means of support, that they will not be separated from the child on arrival, that interim contact will be permitted. Offering these early and in writing is often what converts a contested two-year proceeding into a negotiated return within months. It is quiet, procedural work, and in my experience it is where the most value sits in a case like this.
What tends to go wrong
Waiting for the foreign court to fix it. A further order from the court where you live, made after the child has left, adds relatively little. What is needed is a proceeding in India.
Arriving with a thick file and no Indian filing. A stack of orders, emails and reports from abroad is evidence. It is not a proceeding. Until something is filed in India, nothing is happening.
Taking the child back informally. Removing the child from India without an order, or attempting to, turns a case in which you are the wronged party into one where both parents have acted unilaterally. Indian courts respond very badly to it.
Letting the other side file first. A guardianship petition filed by the parent in India, in a forum of their choosing, ahead of your habeas petition changes the shape of the case considerably.
Underestimating the paper. School records, medical records, immigration and travel history, the messages arranging the trip, evidence of what was agreed about the return date. These decide the case. Gather them in the first fortnight, before memories fade and devices become unavailable.
Send me the papers
If you have a foreign custody order, a travel consent, the messages arranging the trip, or a notice from an Indian court, I will read them against the record and tell you what position you are actually in and what can be filed this week. If a child is about to be moved, or a hearing is listed, say so — it changes what gets done first.
Questions people actually ask
India is not in the Hague Convention. Does that mean I have no remedy?
No. It means there is no automatic remedy. There is a well-developed line of Supreme Court authority on returning children to the country of their habitual residence, and Indian courts have made those orders repeatedly. It is litigation rather than treaty machinery, which means it has to be run properly and quickly.
How fast can something be filed?
A habeas corpus petition can be prepared and filed within days of instructions, on a power of attorney, without you travelling. Interim directions are often obtained on the first or second listing.
Do I have to come to India?
Not to begin, and not usually to prosecute the matter. Where the court wants to see the parties, or a settlement is being negotiated, a trip may become useful. It is planned around a listing rather than guessed at.
The other parent has filed a 498A case against me. Does that stop me?
It complicates matters and it does not stop you. A cross-complaint filed after a retention is a common feature of these cases and courts are alive to the pattern. It does mean the criminal exposure and any travel restriction has to be dealt with alongside the custody proceeding rather than afterwards. See the guide on look out circulars.
My child says they want to stay in India.
The court may speak to the child and will give weight to their view depending on age and maturity, without treating it as decisive. A child's stated preference after a year of living with one parent and hearing one account of events is understood by judges for what it is.
What does an Indian court do about my custody order?
Treats it as significant evidence going to welfare and to which forum should decide. It does not execute it and will not review it.
Is it too late? It has been over a year.
It is harder. It is not necessarily too late. The Supreme Court has ordered return where a substantial period had passed, particularly where the parent in India evaded service or concealed the child's whereabouts. The delay has to be explained, and it is better explained by an obstruction you can document than by an absence of advice.