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Raj Kumar   11 January 2018

Child custody after ex-parte divorce

My Sister's husband has filed for divorce and since my sister did not appear in court, ex-parte divorce decree order has been given. There is no mention of the child custody in the order. (Their child has not seen the father for 5 years now, he left the family when the child was 6 months old, he did not contribute anything basically towards the child at all). My sister has plans to settle abroad after all these waste of time and mental torture.

The question is If the father files for the child custody after 2 years and the child is with the mother abroad and doing well, will it still be considered ? If he asks for visitation rights and the child is abroad, will it still be considered ? How are such cases handled ?



Learning

 22 Replies

Kumar Doab (FIN)     11 January 2018

Welfare of the child is of parmount consideration fo courts.

Read the publication and decisions on IT.

Kumar Doab (FIN)     11 January 2018

Cross the Bridge when IT comes...

So far there is NO call to the mother and child.

They may not wait till eternity and focuson their future and career.

Vijay Raj Mahajan (Advocate)     12 January 2018

Firstly the Child Custody or getting order for exclusive guardianship of the minor child the civil petition has to be filled under the Guardians & Wards Act, 1890. The very first condition about the jurisdiction of the court where the petition can be filled is the District Court where the minor ordinary resides and as you mentioned the minor child is in foreign country with his mother who is the natural guardian and sole custodian of the minor child has taken child with her and there was no order preventing her to do so nor father of the minor child sought the custody or the sole guardianship in the past 5 years.

On the basis of above legal issue the petition of the father will get dismissed by the Family Court wherever he files it now in India. 

It was experienced in few cases I dealt where the minor children were residing outside India and the custody and guardianship petitions were filled in India.

Raj Kumar   12 January 2018

Thank you for the detailed response sir. In that case, my question is if there should be some explicit order from the court to say that the Mother is the sole guardian of the child. The current ex-parte order does not mention anything about the child at all. Should we leave it as it is and let my sister proceed with her plans or should we go to the court to declare anything about the custodianship ? please let me know.

Raj Kumar   12 January 2018

What is suspicious ? The father leaves the family and will not conttibute towards the child for 7 years and then suddenly one day he will come and claim the child ? what sort of justice is that ? How is my sister and her child supposed to live their life peacefully if such things happen ?

Vijay Raj Mahajan (Advocate)     12 January 2018

She holds sole or complete custody of minor and no order passed by any court contrary to it. So she may proceed without any order of court.

Sachin (N.A)     12 January 2018

Originally posted by : Raj Kumar
My Sister's husband has filed for divorce and since my sister did not appear in court, ex-parte divorce decree order has been given. There is no mention of the child custody in the order. (Their child has not seen the father for 5 years now, he left the family when the child was 6 months old, he did not contribute anything basically towards the child at all). My sister has plans to settle abroad after all these waste of time and mental torture.

The question is If the father files for the child custody after 2 years and the child is with the mother abroad and doing well, will it still be considered ? If he asks for visitation rights and the child is abroad, will it still be considered ? How are such cases handled ?

 

Your sister cannot take the child with her without the consent of father or court permission. It is against the law of india and no country grant visa to the child.

Father can apply for visitation rights, whether he financially contributed or not . Both are seprate matters.

He can apply for custody but ofcourse for that he has to financially contribute.

Father is the natural guardian of the child and not the mother.

Vijay Raj Mahajan (Advocate)     12 January 2018

Both father and mother are natural guardian of minor very clearly held by the Supreme Court. No permission required for taking child out of country from father who's not bothered for the child for last 5 years. Nothing illegal if mother takes the minor with her not country will refuse visa or entry of both.

Raj Kumar   12 January 2018

Are you serious ? Which law is it against ? 

So, men can roam around drinking, abusing the wife, never bother about the child, desert the family and then after 5 years can come back and ask for custody or visit the child ? What are we supposed to tell the child all of a sudden ? And because he can claim the child, women should not have their career or settle with the child longing for a husband who never contributed anything to her or the child ? and this is justice ?

Kumar Doab (FIN)     12 January 2018

In case of litigation, the justice is delivered by courts of law.

In forums like LCI discussions are to get basic idea.

For considered opinion one should go back to one’s very able senior LOCAL counsel of unshakable repute and integrity specializing in concerned filed of law e.g; Family matters and having successful track record.

Or the litigant is properly informed and can contest as PIP (Party in Person).

Kumar Doab (FIN)     12 January 2018

The courts examine fact produced before the court and decide the matter per provisions of law and merits in case of litigants.

Mere averments may not fetch the desired relief as per inner wishes of one litigant, from court of law.

In such cases welfare of child is of paramount interest to courts.

The limited information posted by you may tilt the merits against one spouse (husband) and weigh in favor of other spouse (wife).

The version of child may also be considered by court.

IT is not clear what the age of child was when divorce ( Ex.Party) was granted, by court.

What would be age of child after 2 years ( 2Y is the time period posted by your in your query. 

Kumar Doab (FIN)     12 January 2018

Your query does not confirm that the spouse (wife) has left India with child, and is in foreign country. It does indicate that the spouse (wife) has plans to leave India with child.

If petition of spouse (Husband) fails in court of law it implies custody of child remains with other spouse (Mother) since child was with mother from the days child was infant to te date of divorce ( Ex. party) . The decision by court shall be crystal clear on custody with parent (Mother or Father), you be rest assured on IT………………..If the matter is agitated in court.

Until then you may not brand one spouse (Mother) as sole guardian (decided by court of law).

To leave India or not is personal decision of the spouse having child.

For the sake of future one can take personal decisions and need not wait till eternity.

Personal decisions are personal matters and are to be decided personally.

IT was personal decision of spouse (wife-mother) to not to contest divorce petition or let IT be converted to MCD on settle T&C o of which could be custody of child………..The elders of the family, mediators, counselors, Lawyers, shrude negotiators on both sides could have intervened to reduce the demands/T&C to acceptable levels, and reduced the accepted T&C in writing and accepted before court of law.

That has not happened.

Now IT is entirely the prerogative (even right) of separated spouses ( Ex. Husband, Ex. Wife) and mind IT child as well as far as custody of child is concerned to express before court of law…….

Kumar Doab (FIN)     12 January 2018

The decision by court of law is pleasure of court of law and is based on provisions of law and merits in cases of litigants.

The Lawyers from both sides can argue for the sake of arguments, till permitted to argue, but in the end decision shall be by court of law……………….per facts, merits and provisions of law.

The doors of the court are not shut o spouse/child to send their petition, appeal however decision shall be by court of law……………….per facts, merits and provisions of law.

Who was/is boozer, wo**aniser, Ny*pho, spo*use be*ter, was  good for nothing matters upto a limit………………till decision to end the troubled wedlock is taken………..

IT does not matter now, as one spouse has approached court other decided to remain absent and let court decide Ex.party, and not to appeal………etc etc

Kumar Doab (FIN)     12 January 2018

 

Right of other spouse to approach court for custody cannot be taken away……..

Conduct of spouse(s) may matter, of course. Version of child may also be considered.

In cases of litigation one party that is not satisfied can approach superior court.

 

What can be done should be clear to querist (you), litigants (both spouses)..  and remaining party (Child)….

That is THE ONLY purpose of discussions on ONLINE portals like LCI……

 

Rest as already posted above and in my previous posts you may go thru considered opinion of your counsel and provisions of law and judgments to et idea how such matters in different situations are ascertained by court before delivering decision or justices as posed by you…………..

e.g;  

Madras High Court

P.Senthil Kumar vs R.Sunitha

https://indiankanoon.org/doc/502714/

 

 

There are many decisions..........that you may go thru.

The father can approach courts for custody of child.

 


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