27 June 2025, NIICE Commentary 11366
Yutsi Dotel
In a world that is becoming ever more globalised, migration for work, study, or settlement is common among people. This mobility has resulted in significant increases in cross-cultural marriages and transnational families. However, it has also created complicated legal problems, especially in child custody. Amongst which one of the most intricate legal problems is international parental child abduction.
Parental abduction refers to a situation where one parent takes, detains, or conceals a child from the other parent, whether or not separation or divorce has occurred. In many cases, the abducting parent may be assisted by extended family members. More specifically, it takes place when a child is removed from the State where they were habitually residing, without the consent of the other parent and taken to another country.
Although over 100 countries have ratified the Convention, India has not acceded. The Hague Convention on the Civil Aspects of International Child Abduction (1980) was created in response to these growing concerns. Its two primary objectives are:
- to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
- to ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States.
Understanding the Hague Convention:
The Hague Convention on the Civil Aspects of International Child Abduction (1980) was formulated under the aegis of the Hague Conference on Private International Law in response to the increasing incidence of international parental child abduction. The main goal of the Convention is to prevent the illegal removal or retention of children across international borders by requiring the return of the child to the country of habitual residence as soon as possible, thereby preserving custody arrangements until a competent authority makes a decision. Article 3 of the Convention defines explicitly and addresses the circumstances constituting the wrongful removal or retention of a child. According to this article,
- It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
- At the time of removal or retention, those rights were exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
It binds the member parties to protect the best interests of the child. The Convention does not define “habitual residence” and leaves this point to the interpretation of domestic courts based on the cases before them. Scholars argue that Article 3 can effectively operate in principle. Still, the practical enforceability of its principles weighs heavily on reliance on clearly defined domestic custody rights and the interpretation of habitual residence.
Moreover, Article 13 of the Convention addresses the defences on which a parent can refuse to return a child. One of the most critical circumstances includes that returning the child would place them in a hazardous situation or put them in danger of suffering physical or psychological harm. Domestic violence incidents may also fall under this category of dangerous circumstances. This is especially pertinent in the Indian context, where there has been much discussion about the Convention's applicability and implications.
Why has India not acceded to the Hague Convention?
In its 218th Report, entitled “Need to Accede to the Hague Convention on the Civil Aspects of International Child Abduction (1980),” published on March 30, 2009, the Law Commission of India suggested that the Indian government ratify the Hague Convention. In 2016, the Government of India's Ministry of Women and Child Development drafted a bill on the civil aspects of international child abduction in response to this recommendation. However, because most abduction cases involving India are unique, the problem is still complicated.
Most of the time, mothers bring their children to India without the father's knowledge or approval, frequently claiming that they are victims of domestic violence and have come back to India to seek their families' support and safety. India's hesitant approach to acceding to the Hague Convention on the Civil Aspects of International Child Abduction has been dramatically influenced by this recurrent pattern of cases. Indian courts constantly base their decisions about custody on the idea that the child's welfare must come first. While the Law Commission supported accession, a committee later established by the Central Government to further examine the issue raised concerns about this core principle of the Convention. The committee argued that automatic return does not always align with the child's best interests, especially when allegations of abuse are involved.
The Indian Supreme Court put the child's welfare ahead of rigorous adherence to foreign custody orders in the case of Sarita Sharma v. Sushil Sharma. Citing domestic violence and concerned for her children's safety, Sarita left the United States with them. Because "removal of the children from U.S. jurisdiction cannot by itself be a ground to repatriate them," the Court declined to order repatriation, particularly when the children were in the mother's natural custody and showed no signs of abuse or neglect. The ruling emphasised that courts must determine whether returning the child could result in psychological or physical harm when domestic violence is involved.
This reflects that the Indian Government has maintained the position that it is not prepared to accede to the Hague Convention. This stance underscores India’s emphasis on a context-sensitive, welfare-oriented approach to cross-border child custody disputes, rather than a uniform international legal standard.
Conclusion
India's refusal to join the Hague Convention is indicative of its dedication to putting the welfare of children first in complex custody cases, particularly those involving domestic abuse. India protects vulnerable families by opting for a context-sensitive approach rather than blanket international standards. Although there are still issues, this balanced approach makes room for a future framework that maintains children's best interests at the forefront while striking a balance between international collaboration and personal safety.
Yutsi Dotel is a Research Intern at NIICE. She is currently pursuing her Master's in Legal Studies at South Asian University.
