International Parental Child Abduction India
DISCLAIMER: This flyer is for general information purposes. This information is subject to change without notice and should not be construed as legal advice. Please seek qualified foreign legal counsel for specific information about foreign law.
December 2011
GENERAL INFORMATION: 
India is not a signatory of the Hague Convention on the Civil Aspects of International Parental Abduction.
India Country Specific Information Flyer
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.
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.
Mumbai, Chennai, Bangalore, Salem, Coimbatore, Madurai, Pune, Trivandrum, Cochin, Lucknow, Hyderabad, Kanpur, Ahmedabad, and other cities and have designated family courts that handle divorce and custody. By statute, establishment of family courts is required in cities exceeding one million residents. or wherever the government decides there is a need for one. In other areas, the regular sessions or lower courts handle divorce and custody. India uses the term "custody order," but the terms “joint custody” and "sole custody” are not used or accepted. Custody cases can be filed in courts that have jurisdiction over the child’s residence. In cases of divorce, custody may be filed in courts that have jurisdiction over the place of marriage, last residence at which the parents lived together or where the respondent resides. If custody is sought under the Special Marriage Act or the Hindu Marriage Act, custody may be filed where the mother resides.
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.
CITIZENSHIP & PASSPORT MATTERS:
According to a provision of the Citizen Act of 1955, Indian citizenship can be acquired by birth, naturalization or descent. Laws regarding transmission of Indian citizenship are complex; however, generally speaking, children of at least one citizen of India automatically acquire Indian citizenship at birth, regardless of where the child is born (the gender of the Indian parent does not make a difference). A child born outside India acquires Indian citizen if either parent is a citizen of India at the time of birth and (if born after January 7, 2004) the child is registered at an Indian consulate within one year of the date of birth. Special government permission is required for late registrations. For more information please see http://www.mha.nic.in/
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 (regardless if father or mother)_is not required for the child to depart India. Likewise,
the father does not have to approve the children's departure from India.
Mediation is considered a strong "alternate dispute redress" (ADR) and is a statutory requirement under the civil procedure code. Parents involved have the option not to consent to the mediation. When both parents consent, mediation is carried out by trained lawyers. Mediation centers have been set up in different parts of the country.
India is not a party to the Hague Abduction Convention.
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 depending on the facts of each case. U.S. court decisions are almost never upheld in Indian courts in ex parte cases.
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, custody may be filed under the Guardian and Wards act if the child resides in India.
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", "Hindu Minority
and Guardianship Act" under "short title", "The Hindu Marriage Act (section 26), "The Special Marriage Act", and the "Indian
Divorce Act".
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 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
Family courts, civil courts and High courts exercising original jurisdiction under the Guardian and Wards Act as well as sessions (or lower) courts in the other parts of India determine visitation/access rights. The safety and security of the child and his or her wishes 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
