Can I Stop My Ex-Spouse from Relocating with My Child After Divorce?

Among the most controversial and sensitive issues after a divorce is the relocation of a child by either parent. The threat of an ex-spouse relocating to another city or even abroad with the child can be worrying, more so for the non-custodial parent who is afraid of losing meaningful access. In Indian law, such relocation is a complicated legal and emotional issue that involves the best interests of the child, the rights of parents, and the jurisdiction of the courts.

After divorce, the custody of a child is usually decided in the course of the divorce itself or in an independent petition for guardianship in case of contest over custody. Custody in India can be generally classified as physical custody and legal custody. Physical custody is the parent whom the child stays with most of the time, whereas legal custody is decision-making authority over the education, health, and well-being of the child. The custodial parent is usually more directly involved in everyday decision-making with respect to travel or relocation, but this authority is not superior or better than the other parent's.

Both parents are natural guardians of the children under the Hindu Minority and Guardianship Act, 1956, according to Indian law, even after divorce, unless either parent is disqualified by misconduct or incapacity. In practice, this entails that even if one parent has the primary custody, the other parent is still entitled to be consulted regarding significant life choices impacting the child. A unilateral move by the custodial parent—especially to a faraway location—can be objected to by the non-custodial parent in court if it is perceived to be prejudicial to the child's well-being or with an intent to cut the child off from the other parent.

The one and only guiding principle in respect of all such matters is the welfare of the child. Indian courts have always ruled that the best interests of the child are the paramount consideration, overriding whatever either party wants. For example, if the custody parent desires to relocate for employment or remarriage, the court will consider whether such relocation is in the best interests of the child or whether it affects the child's education, stability, or emotional bonding with the non-custody parent. If the court rules that relocation would have a negative effect on the well-being of the child overall, it can deny it or even change custody arrangements.

In the classic case of Naveen Kohli v. Neelu Kohli, the Supreme Court emphasized that although a custodial parent might want to relocate, the same must not be at the expense of the emotional and psychological growth of the child. Courts in India exercise extreme caution when dealing with relocation, which causes less access for one parent, especially if the child is very young or if the child has developed a strong emotional bond with the non-custodial parent. Courts may impose conditions on the move, such as requiring regular video contact, allowing for visitation, or, in some extreme cases, granting joint custody.

There is no specific Indian statute that governs the migration of a minor child post-divorce, unlike countries in the global North (such as the US and Australia), which have a substantial body of legislation governing migration. Indian courts engage with general principles under the Guardians and Wards Act, 1890, and the applicable family laws founded in each party's religious upbringing. Under that framework, any significant event in a child's life, like a relocation, must be sanctioned or scrutinized by a competent court if it impacts custody and/or visitation. If the custodial parent relocates without judicial approval, the other parent can apply to the court to enjoin the relocation or modify custody.

International relocation adds complications. India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Nevertheless, Indian courts have established their own jurisprudence in such matters. Where a child is removed from India without the permission of the other parent or in contravention of a court order, it could be viewed as wrongful removal or abduction. The injured parent can approach legal redress through recourse to the Ministry of External Affairs or a habeas corpus petition before the High Court. Courts, in a number of judgments, have ordered the return of the child to the habitual country of residence, stressing that the child should develop in a settled and familiar setting.

On the other hand, courts pay attention to the realities of practicalities as well as to the reasons behind a request for relocation. For instance, if the relocating parent can prove that it is necessary for improved economic opportunities, access to higher education, or supportive family circles, and that proper arrangements will be made for visitation for the child with the other parent, courts will permit it. Ill will or intent to alienate the other parent is harmful to the relocating parent.

Ultimately, the decision to permit or deny the relocation lies with the court's judgment of the peculiar facts and circumstances of a case. One parent can see relocation as a step in the right direction, but the other can see it as the separation of a link with their child. Indian courts attempt to weigh these conflicting interests against each other by giving most consideration to that which is beneficial for the child—not merely in the short run, but also in the long run.

In conclusion, as a concerned parent who wants to prevent your ex-husband or wife from moving away with your child following divorce, you are entitled by law to protest against such a move. Your objections can be pursued in court, and if the relocation will adversely impact the welfare of the child, the court can prohibit it. Legal action could also provide clarity on access, set visiting schedules, or examine custody. There is no codified legal framework in India at the present time, but the court can be an important guardian of the best interests of children regarding relocation disputes.