New Delhi: During Prime Minister Narendra Modi’s visit to the Netherlands this month, his Dutch counterpart, Rob Jetten, raised a matter long familiar to Dutch audiences but lesser known in India: the case of Insiya Hemani, a Dutch child living with her father in Mumbai after allegedly being abducted from Amsterdam in 2016.
After his talks with Modi, Jetten took to the social media platform X on 17 May to say that the Insiya issue was part of their discussions. “We also spoke about the case regarding the abduction of Insiya,” he wrote on X.
Insiya Hemani was allegedly taken from her grandmother’s home in Amsterdam in 2016, when she was two years old, shortly after her mother, Nadia Rashid, was awarded full custody by a Dutch court.
Dutch prosecutors said she was abducted by three men acting on behalf of her father, Indian citizen Shehzad Hemani, then driven to Germany and flown to India to join him. Dutch courts later convicted Hemani in absentia and sentenced him to nine years in prison.
The manhunt for some of the others, including Hemani’s cousin, Imran, continues to this day. One of the kidnappers was located in Latvia just this April and extradited to serve his sentence. Nadia Rashid has pursued custody proceedings in Indian courts, while Dutch authorities have also sought Hemani’s extradition from India.
The case, which has stretched on for nearly a decade, has drawn renewed attention to a niche but increasingly significant area of Indian family law: international custody disputes.
In the absence of a uniform legal framework, such disputes create difficult legal questions.
Which jurisdiction has primacy? Should a family court ruling in one country hold sway in another? Should a parent be allowed to remove a child from one country and take them to another in hopes of obtaining a more favourable ruling? As India’s population of emigrants and expatriates has grown, so too have cases involving parents living in different jurisdictions, often racing to secure favourable custody orders in competing legal systems.
For lawyers representing “left-behind” parents abroad, the pattern has become familiar.
Lawyer Prabhjot Jauhar said families “set up their lives there, get a green card, have children there” only for one parent to pick up the children and fly to India, because India is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
“This is an interparental abduction,” he told ThePrint. “It’s a crime abroad.”
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Hague Convention
It was to address precisely this problem that the 1980 Hague Convention on the Civil Aspects of International Child Abduction was drafted.
The convention sought to deter parents from removing children across borders to muddy custody proceedings, requiring signatory states to respect foreign custody orders and secure the prompt return of abducted children.
More than 100 countries have signed it. India has not.
That absence sharply divides lawyers and judges working in the field.
Jauhar argued that the lack of a Hague framework encourages litigants to exploit delays and uncertainty in Indian courts. “They know it’s going to take time,” he said. “The custodial parent then tries to tutor the child.”
Others say India’s refusal to sign the convention preserves necessary flexibility.
Saudamini Sharma, an advocate who works on international family law, said Indian courts are guided above all by “the best welfare of the child”.
Even where foreign orders exist, courts ask “whether it’ll be detrimental to the child to jolt them out of an environment they’re comfortable with” and send them back to “a place where they probably last lived when they were two years old,” said Sharma.
Indian courts can still choose to respect foreign custody arrangements but they retain discretion to ignore them.
This strain of jurisprudence predates the Hague Convention itself. The 1890 Guardians and Wards Act directs courts to consider multiple factors when deciding where the child’s best interests lie. This holds sway even when the child’s custody is disputed by a habeas corpus petition, usually filed under Articles 32 and 226 of the Constitution.
That said, courts have sometimes chosen to respect foreign orders. In 1969, the Kerala High Court returned custody of a child to her German mother in light of a German court decision, holding that Indian courts should respect foreign judgements unless doing so would undermine the child’s welfare.
In such cases, courts often invoke the principle of “comity of courts”: the idea that judgments from foreign jurisdictions deserve deference so long as they are not fundamentally inconsistent with Indian law.
In a 2024 case, for instance, the Bombay High Court granted custody of a Dutch child to her mother after finding that the Indian father had violated a Dutch custody order and contributed to “parental alienation” between the child and her mother.
Yet, in other cases, Indian courts have treated foreign judgements as secondary to their own assessment of the child’s interests.
In the 2017 Nithya Anand Raghavan v. State of NCT of Delhi, the Supreme Court considered the case of a child who had been brought back to India from the UK by her mother, in defiance of a British court order. The Delhi High Court had ordered the mother to comply with the UK order.
On appeal, the Supreme Court disagreed, ruling that the high court had been “unjustly impressed” by the foreign court order and had not paid enough attention to the specific interests of the child.
“The principle of comity of courts cannot be given primacy,” it ruled.
That principle has since been cited by courts that grant custody to India-based parents.
In April this year, the Delhi High Court awarded custody of a U.S.-citizen child to the mother despite an American order favouring the father, reasoning that the child had by then developed “deep roots” in India.
The lack of a uniform framework means outcomes can vary sharply from judge to judge.
Senior advocate Geeta Luthra said that much “goes according to the mental ethos of the judge”, with some emphasising comity of courts and others prioritising the vulnerabilities of Indian spouses abroad.
Jauhar agreed: “There is no uniform law.”
Welfare principle
Critics of the current system argue that such rulings incentivise forum shopping.
Jauhar said that parents who know they would have a weak case abroad “flee that foreign jurisdiction” while Indian courts continue to default toward the “welfare principle”.
Luthra argued that courts “somehow delay the case so long, and then it becomes as if the child has developed roots in India”.
But, lawyers defending India’s current approach say critics often overlook the realities facing many spouses abroad. “A lot of women are running away from abuse,” Sharma said. Sending the child back, she argued, often means sending the mother back to an abusive environment as well: “Where the child goes, the mother will go.”
Luthra argued that the real challenge lies in distinguishing genuine abuse claims from strategic allegations raised during custody battles. She said the court must examine “very thoroughly” whether there is actually domestic violence, because “frequently it’s just a false bogey being made by a person who wants to run away with the child”.
At the same time, she stressed that some spouses abroad are genuinely vulnerable—financially dependent, isolated, or subject to coercive control. “It’s a very fine balance,” she said.
Insiya’s own case reflects many of these tensions.
The family court did not treat the father’s kidnapping conviction in the Netherlands, or the suspicious circumstances surrounding Insiya’s relocation to India, as particularly decisive.
The Bombay High Court disagreed, but stopped short of taking over the case, which remains pending before the family court.
Citizenship can further complicate such disputes. In some cases, the parents are both Indian citizens; in others, only one is. Often, the child is a foreign citizen by birth, especially in jus soli, or birthright citizenship, jurisdictions like the United States.
In December 2024, for example, the Rajasthan High Court ordered the return of a child to his American mother after noting that the child’s visa had expired and he no longer possessed legal status in India; the court reasoned that his surer legal footing in America would lead to an easier, happier life.
Insiya’s immigration status is uncertain because of the circumstances in which she entered India. It is not clear whether she entered the country legally with a visa and remains a Dutch citizen with no inherent right to reside in India. Indian courts have not substantially addressed the issue, and Shehzad Hemani has never submitted a definitive explanation.
Toll on children
All sides of the debate acknowledge the toll these disputes take on children.
Sharma called such proceedings “very traumatic for a child”, arguing that custody battles often become “power plays” in which “children are pieces for barter”.
Jauhar, meanwhile, questioned why children should lose contact with one parent because of a unilateral relocation.
“Why should the child not get the benefit of both parents? Especially when one parent decides unilaterally to come back?” he asked.
Luthra similarly argued that courts should be more willing to grant the “left-behind” parent interim access while proceedings continue. “Some courts have given interim orders,” she noted. Others insist on hearing matters in full first, “even if it takes two to three years.”
Luthra also highlighted the tendency of police to take action based on claims of domestic violence, particularly under laws like Section 498A of the Indian Penal Code, which criminalises cruelty by a husband or his relatives toward a married woman.
As a cognisable, non-bailable offence, it has frequently led to the accused being arrested and having their passport impounded, even on little evidence.
In 2025, the Supreme Court quashed one such case, filed by an Indian-born Austrian woman against her Indian-born Australian husband. She had defied Australian custody orders to bring her child to India.
Such issues have deterred many foreign spouses from coming to India to fight a custody battle. The US State Department once warned its citizens that “the Indian criminal justice system is often used to escalate personal disagreements into criminal charges”.
“Because of the laws in India, a foreigner, or even an Indian, would be scared to come to India to see their child,” said Luthra.
While legal interpretations may differ, nearly everyone involved agrees on one point: the current system can leave families trapped in litigation stretching across continents for years – sometimes for the entirety of a childhood.
(Edited by Sugita Katyal)
Dutch govt should cancel the Green Cards, of such people. Focus on the motivation of the crime, than the crime itself.
Also discuss Celina Jaitly case who is also fighting for the custody of her children. Do not just say that Indian system is broken, that is coming out of slave mentality.