Cross-border child custody disputes have become increasingly common due to rising international marriages and global mobility. These disputes raise complex legal and procedural questions when one parent takes the child out of the country or withholds access to the other parent. Indian courts frequently deal with such matters through custody petitions under personal laws and Habeas Corpus petitions under Article 226 of the Constitution of India. This article explores how the Indian judiciary addresses international custody cases, the limitations of Habeas Corpus in child-related matters, the legal role of guardianship, and the impact of perjury or misrepresentation during proceedings.

Legal Framework for Custody and Parental Rights in India

Custody Under Personal Laws

Child custody in India is governed primarily by:

As per Indian law, the father is considered the natural guardian of a minor boy and unmarried girl, although custody is often granted based on the best interest of the child, irrespective of gender or religion.

Habeas Corpus and Child Custody

Habeas Corpus, a constitutional remedy under Article 226, can be filed in High Courts for the release of a person allegedly held in illegal custody. In custody matters, it is used when:

  • A parent alleges illegal detention of the child by the other parent or a third party 
  • The child is untraceable or removed from jurisdiction 
  • There’s fear of abduction or concealment 

Courts have ruled in numerous cases, including Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019), that the child’s welfare supersedes the legality of custody, especially in Habeas Corpus petitions.

Limitations of Habeas Corpus in Child Custody Disputes

While Habeas Corpus may appear to be a swift remedy, it has inherent limitations in parental custody disputes:

  • If the child is with a parent or legal guardian, courts often do not treat the custody as unlawful. 
  • The High Court may decline to entertain the petition if the matter is already pending before a family court. 
  • The child’s welfare, not the petitioner’s legal rights, remains paramount. 

Practical Challenges in International Child Custody Cases

Jurisdictional Complexities

India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, making it difficult to enforce international custody orders. When one parent resides abroad, courts must rely on domestic guardianship laws, voluntary cooperation, and judicial discretion to resolve the matter.

Delays in Service of Notice

In cross-border cases, one of the most common issues is the non-service of notice to the parent living abroad. As a result, custody petitions often remain pending for extended periods. This can delay both final and interim relief such as visitation rights or temporary custody.

Impact of Judicial Delays and Procedural Lapses

Judicial Transfers and Case Backlog

Court delays, including frequent transfers of judges or administrative bottlenecks, often derail custody petitions. Interim applications like visitation rights may remain unheard for months or even years, undermining the petitioner’s legal recourse.

Procedural Exhaustion and Withdrawal

In prolonged disputes, the aggrieved parent—especially when based overseas—may lose access, connection, and ultimately interest in pursuing the custody matter, leading to emotional and legal exhaustion.

Role of False Evidence and Misrepresentation

In some cases, respondents misrepresent facts regarding their presence or absence in India. For example:

  • Claiming to be continuously abroad while simultaneously attending proceedings in Indian courts (e.g., for divorce or other matters) 

Such inconsistencies may amount to perjury, punishable under:

  • Section 227 BNS – Giving false evidence 
  • Section 229 BNS – Punishment for false evidence 
  • Section 215 BNSS – Sanction required for prosecuting perjury 

Providing false evidence can impact the credibility of a parent and influence custodial decisions.

Importance of Documentation and Mutual Agreements

In international disputes, documented consent and custody arrangements are essential to avoid future litigation. Courts rarely consider verbal agreements, especially when guardianship and relocation are in question.

Key documents include:

  • Consent affidavits 
  • Written custody agreements 
  • Travel permissions 
  • Mediation or settlement records 

Lack of such documentation weakens the claim of any informal understanding between the parents.

Role of the Child’s Preference

As per Indian legal principles, particularly those established in Ruchi Majoo v. Sanjeev Majoo (2011), courts may consider the wishes of the child once they attain an age of maturity—typically around 9 years or older.

The child’s reluctance to reconnect with an absent parent (especially after prolonged separation) may influence the outcome of custody decisions.

Custody vs. Habeas Corpus: The Correct Legal Route

While Habeas Corpus may be an option for urgent relief, custody petitions filed in family courts under relevant personal or guardianship laws offer a more structured remedy. Family courts assess:

  • Educational stability 
  • Emotional well-being 
  • Sibling relationships 
  • Living arrangements 
  • Mental and physical health of both parents 

Courts prefer resolving these matters in family court unless extraordinary grounds justify invoking constitutional writ jurisdiction.

Cross-border custody disputes require careful navigation of constitutional remedies, personal laws, and practical considerations. While Habeas Corpus under Article 226 serves as a valuable legal remedy in urgent cases, custody matters are best resolved through structured family court proceedings.

Legal strategy, truthful disclosure, proper documentation, and sensitivity to the child’s emotional development are essential to achieving justice in such emotionally complex and procedurally intricate matters.

FAQs on International Child Custody and Habeas Corpus in India

1. Can Habeas Corpus be filed for child custody in India?

Answer: Yes, a Habeas Corpus petition can be filed in child custody cases, but Indian courts use this constitutional remedy sparingly. It is generally entertained only when the custody of the child is illegal, unlawful, or endangers the child’s safety or mental health. The Punjab and Haryana High Court has dealt with such cases when one parent unlawfully removes the child from the custody of the other. However, for long-term custodial arrangements, the family court remains the appropriate forum. Engaging experienced High Court lawyers in Chandigarh or advocates in Chandigarh with expertise in custody and constitutional law is essential to navigate this complex remedy.

2. Does the child’s opinion matter in Indian custody cases?

Answer: Yes, the child’s preference plays a critical role in custody matters, especially if the child is of sufficient maturity (generally 9 years or older). Courts assess whether the child is expressing their wish freely and without influence or pressure. While the final decision rests on the paramount consideration of the child’s welfare, family law advocates in Chandigarh often use this factor strategically to support custody claims. The Punjab and Haryana High Court regularly considers such statements in chambers during hearings.

3. Can false statements in custody proceedings lead to punishment?

Answer: Absolutely. Making false declarations or misrepresenting facts in court can lead to criminal liability under Section 227 (giving false evidence) and Section 229 (fabricating false evidence) of the BNS. However, as per Section 215 of the BNSS, prosecution in such cases requires prior approval from the concerned court. Experienced lawyers in Chandigarh are well-versed in both civil and criminal consequences of dishonesty in custody matters and can take swift legal action when needed.

4. How do courts handle cross-border child custody disputes?

Answer: India is not a signatory to the Hague Convention on International Child Abduction, which means courts rely primarily on domestic guardianship and custody laws. In cross-border disputes, Indian courts maintain jurisdiction as long as the child is located within Indian territory, and the emphasis remains on the child’s best interest rather than international agreements. High Court advocates in Chandigarh dealing with NRIs or international custody conflicts must often coordinate with foreign legal systems, embassies, and local guardianship laws.

5. What happens if the other parent cannot be served with legal notice?

Answer: If one parent evades service or is untraceable, the legal process can become delayed. In such situations, the court may direct alternate modes of service such as:

  • Email notices 
  • Service through diplomatic channels or embassies 
  • Publication in newspapers (public notice) 

While these methods are allowed, they are time-consuming and often cause delays in interim custody orders or final judgments. Engaging proactive and strategic child custody lawyers in Chandigarh ensures timely filing, follow-ups, and use of all available legal tools to move the matter forward efficiently.