Child Custody in International (NRI) Disputes – What Parents Need to Know

Understanding Child Repatriation and the “Comity of Courts” in NRI Disputes

In international child custody cases, a common point of contention is whether a child should be “repatriated” (returned) to a foreign country based on a foreign court order. At Legal Light Consulting (LLC), we help parents understand how Indian courts balance international legal principles with the actual well-being of the child.

1. What is the principle of “Comity of Courts”?

Comity of Courts is a principle of Private International Law where courts of one country respect the laws and judicial decisions of another. In custody cases, it means an Indian court will consider orders passed by a foreign court (like a US Court).

However, in India, this principle is not absolute. It is subordinate to the “Paramountcy of the Welfare of the Minor.”

2. Can an Indian court refuse to send a child back to the USA if there is an “Abduction” charge?

Yes. Even if a US court has framed charges of “parental abduction” against a mother, an Indian court is not bound to summarily return the child. The Indian court is duty-bound to examine the matter independently.

If the child has been living in India for a significant period (e.g., three years) and is well-settled, the court may prioritize the child’s current stability over the foreign criminal charges.

3. When is “Repatriation” (returning the child) considered undesirable?

Indian courts may refuse to send a child back to a foreign jurisdiction under the following circumstances:

• The Child’s Preference: If the child is old enough to express a preference and is unhappy with the father’s attitude or lifestyle.

• Second Marriage: If the father has contracted a second marriage, the court may examine if the child will receive adequate care in that new domestic setup.

• Traumatic History: If the mother (primary caregiver) has a genuine fear of returning due to past traumatic experiences or abuse in the foreign country.

• Settled Life: If the child is happy with their school, friends, and surroundings in India.

4. How does the court view the father’s second marriage in these cases?

While a second marriage is not an automatic disqualification for custody, it is a significant factor. If a father wants the child to return to the USA but has started a new family, the court will closely scrutinize whether the child’s welfare will be the priority in the foreign household.

5. Does a foreign judgment carry any weight in India?

Yes, but only as an “input.” An Indian court will look at a foreign judgment to understand the history of the case, but it will not blindly follow it. The court will conduct a “summary” or “elaborate” inquiry to determine what serves the child’s best interests today, regardless of what a foreign court decided in the past.

Key Legal Insights for NRI Parents

Child Custody in International (NRI) Disputes – What Parents Need to Know

At Legal Light Consulting, we understand how stressful and confusing child custody battles can become, especially when one parent lives abroad. Many of our clients ask similar questions when an NRI spouse is involved and the child is living in India or another country.

This FAQ is based on important principles from the Supreme Court judgment in Ruchi Majoo v. Sanjeev Majoo (2011) and is written in simple, client-friendly language to help you understand your options.

Please note: This is general educational information only and not legal advice for your specific case. Every family situation is unique. For advice tailored to your circumstances, please contact us directly for a confidential consultation.

1. My child was born abroad but has been living with me in India for several years. Can an Indian court decide custody?

Yes. Indian courts have the power to decide custody if your child is ordinarily living in India (for example, going to school here and calling India home). The court looks at where the child is settled and happy, not just where they were born.

2. What does “ordinary residence” mean?

It means the place where your child normally lives and feels at home — not just a short holiday or temporary stay. If your child has been studying and living in one city in India for a few years, that city’s court usually has jurisdiction.

3. My spouse says I “kidnapped” the child by bringing them to India and has filed a case abroad. Will the Indian court send the child back?

Not automatically. Indian courts give first priority to your child’s welfare and happiness. They will examine the full situation independently. A foreign “abduction” charge is noted, but it does not force the court to send the child back if staying in India is better for the child.

4. My spouse is asking the court to “respect” the foreign court’s order and return the child (principle of comity of courts). Does the Indian court have to follow that?

No. The principle of “comity of courts” means courts try to respect each other’s decisions, but it is not binding. The Supreme Court has clearly said that the child’s best interest comes first. If returning abroad would upset or harm the child, the Indian court can refuse repatriation.

5. The child is happy in school here and doesn’t want to go back. Will the court listen to the child?

Yes, especially if the child is old enough to express a clear preference. Courts often consider the child’s feelings about school, friends, and both parents when deciding what is best.

6. My ex-spouse has remarried and lives abroad. Does that affect the case?

It can. The court looks at the overall family situation on both sides — stability, emotional environment, and ability to care for the child. A new marriage abroad may be one factor, but it is not decisive.

7. I had a traumatic experience abroad and don’t want to return. Will the court consider that?

Yes. If you have genuine reasons (such as past domestic issues or fear), the court can take your well-being into account because it affects your ability to care for the child.

8. Can the foreign court’s order be ignored completely?

Not ignored, but treated only as one piece of information. The Indian court will make its own independent decision based on evidence presented here.

9. How long do these cases usually take?

It varies, but international custody cases can take time because of evidence collection and hearings. Starting early and having strong documentation helps.

10. What should I do if I’m facing a similar situation?

• Keep records of school enrollment, medical visits, and any communication with the other parent.
• Avoid making sudden moves without legal advice.
• Contact an experienced family lawyer as soon as possible.

We are here to help. At Legal Light Consulting, we specialise in NRI family matters, child custody, guardianship applications under the Guardians and Wards Act, and international disputes. We guide parents through every step with compassion and clear strategy.

Get in touch today for a private consultation. You don’t have to face this alone. Visit our website or call us to book an appointment. Your child’s future deserves the best protection.

Why Choose Legal Light Consulting (LLC)?

At Legal Light Consulting, our experts in Private International Law provide strategic defense for parents who have returned to India with their children. We focus on:

• Welfare Documentation: Helping you prove the child is thriving in their current Indian environment.

• Challenging Foreign Orders: Arguing why a US/UK court order should not be enforced based on the specific facts of your case.

• Independent Inquiry: Navigating the District Courts and High Courts to ensure an independent evaluation of your child’s best interests.

Note for Educational Purposes: This FAQ is based on evolving legal precedents in India. The “Welfare of the Child” is a subjective test that depends heavily on the specific facts of each case. For expert guidance, please contact Legal Light Consulting directly.