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International Parental Child Abduction
India
GENERAL INFORMATION:
India is not a signatory of the Hague Convention on the Civil Aspects of International Parental Abduction; therefore, left-behind
parents must rely on other avenues to recover their children from India. Once a child has been abducted to India, remedies
are very few. India does not consider international parental child abduction a crime, and the Indian courts rarely recognize
U.S. custody orders, preferring to exert their own jurisdiction in rulings that tend to favor the parent who wants to keep
the child in India. For these reasons, it is often very difficult for left-behind parents in the United States to obtain
any access to a child who has been abducted to India. In the rare scenario that a case is resolved, it is usually due to
an agreement between the parents, rather than the result of court orders or arrest warrants. The State Department can help
by attempting welfare and whereabouts visits; however, these visits may only be conducted with the consent of the child’s
physical guardian.
Cultural factors often impact child custody decisions in India. For example, Indian courts rarely grant custody to a parent residing outside of India, even if both the child and the taking parent are American citizens. Additionally, many fathers complain that the courts tend to favor mothers when determining custody.
India does require the signature of both parents for an Indian passport to be issued to children younger than 18 years. India also requires exit permits for children.
For information concerning travel to India, including information about the location of the U.S. Embassy and Consulates, health conditions, currency and entry regulations, and crime and security, please see the Department of State’s Country Specific Information.
LEGAL SYSTEM: India uses a Common Law legal system . In this type of system, a court’s decision on a legal principle becomes the controlling authority for future, similar cases heard by the same court and courts of equal or lower rank.
Searches for missing children in India generally begin with the local senior police officers. The Ministry of Home Affairs (MHA) Foreigners Division takes an interest in cases involving non-Indian citizen children or parents.
Absent a court order, married parents have equal rights of custody to their minor children. Absent a court order, the rights of either parent to custody of children born out-of-wedlock is based on the courts’ determination of the welfare of the child, though mothers are generally given custody of children under the age of five.
Bangalore and Mumbai have designated family courts that handle divorce and custody. In other areas, the regular sessions or lower courts handle divorce and custody. India uses the term “custody order,” but the term “sole custody” is not used or accepted.
RETAINING AN ATTORNEY: A list of attorneys in India is available from the U.S. Embassy or a U.S. Consulate in India. The attorneys list will include those who specialize in family law.
India offers free or reduced fee legal aid services to those who qualify. The Legal Aid Cells throughout the country determine whether a person qualifies for assistance. Lawyers for those who qualify are selected from a group of attorneys who volunteer to provide their services pro bono. Read more information about Legal Aid services in India.
CITIZENSHIP & PASSPORT MATTERS: According to a provision of the Citizen Act of 1955, Indian citizenship can be acquired by birth, naturalization or descent. Normally, children automatically acquire Indian citizenship at birth, regardless of where they are born, if one parent is a citizen of India, though India does not recognize dual citizenship. A child born in a country where citizenship is automatically conferred at birth, such as the United States, could not claim Indian citizenship. The gender of the Indian parent does not make a difference.
Because India does not recognize dual nationality, as soon as a child is documented as a U.S. citizen, that child has no claim to Indian citizenship unless he or she renounces the U.S. citizenship upon reaching the age of eighteen.
A parent can prevent issuance of an Indian passport to their child by lodging a complaint with the passport office. However, the ultimate decision lies with the passport officer who will substantiate the grounds for the complaint. India does not allow a child to be entered on a parent’s passport. Also, a child cannot travel through the region on a national ID card without processing through customs (i.e. travel through the EU).
Exit Permits: An Indian visa covers both entry and exit. The stamp placed in the passport by immigration authorities upon arrival indicates the amount of time that can be spent in India for a particular visit. If the time limit is exceeded, the visitor must appear at the Ministry of Home Affairs and the Foreigners’ Regional Registration Office (FRRO) to resolve payment of a fine and to request an extension that will permit exit from the country.
The consent of a non-traveling parent is not required for the child to depart India. Likewise, the father does not have to approve the children’s departure from India.
MEDIATION: Mediation is not a term or process used in custody disputes, though occasionally the court will appoint a non-governmental organization or a social agency to work with the families.
HAGUE ABDUCTION CONVENTION: India is not a party to the Hague Abduction Convention.
CIVIL REMEDIES: There is no formal process for registering a foreign custody order with the courts, and U.S. custody orders are not automatically enforced in India. If one is presented, the Indian court is likely to take it into consideration; however, in practice, U.S. court decisions are almost never upheld in Indian courts.
With respect to conditions of custody, custody decisions are made “in the best interests of the child,” using as the primary consideration the welfare of the child: the ability to support the child financially, any history of abuse, etc. If a citizen of India marries an American citizen in a civil ceremony outside of India, a religious court does not have jurisdiction over custody matters. Hindus have no religious courts.
India has laws authorizing courts to award custody in the case of divorce, but the laws do not contain substantive guidance for custody determinations – case law does (see Sharma v. Sharma, Supreme Court of India – February 16, 2000). For the laws related to custody, please see the India Code Legislation Web site and search for “The Guardians and Wards Act” and “Hindu Minority and Guardianship Act” under “short title.”
CRIMINAL REMEDIES: Parental child abduction is not a criminal offense in India. Although India will extradite its own citizens subject to an Interpol arrest notice if the crime is covered by the U.S. Extradition Treaty with India, which was signed in 1997 and went into effect in 1999, this is not an available remedy in parental child abduction cases because India does not recognize it as a crime. Interpol India indicates that it will search for a missing child based on a yellow notice.
VISITATION RIGHTS: Family courts in Mumbai and Bangalore and sessions (or lower) courts in the other parts of India determine visitation/access rights. The safety and security of the child are taken into consideration in determining visitation/access rights. If a parent is denied visitation rights which have been authorized, he/she can approach the court and will be supported.
EMBASSY CONTACT INFORMATION:
U.S. Embassy in New Delhi : http://newdelhi.usembassy.gov/
U.S. Consulate in Chennai: http://chennai.usconsulate.gov/
U.S. Consulate in Kolkata: http://kolkata.usconsulate.gov/
U.S. Consulate in Mumbai: http://mumbai.usconsulate.gov/
Embassy of India in Washington, DC: http://www.indianembassy.org
