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Jessy Isaac   05 October 2021

Child custody and divorce

I am a Australian Citizen, but Indian by birth. I have separated from my husband. My ex husband and our girl child are also Australian citizens. Would it possible for me to file a child custody case from India. I am living in Australia currently.

 4 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     05 October 2021

since you are Australian citizen & presently living there all of u.  You can not approach Indian courts. But 

India was a signatory to the Universal Declaration of Human Rights, therefore great precaution was taken so that Fundamental Rights mentioned in Part 3 of Indian Constitution is concurrent with the provisions of the UN Declaration of Human Rights.

While most Fundamental Rights are available for citizens and foreigners alike (Eg: Article 21), certain rights are exclusive only for Indian Citizens (Eg: Article 19).

Jessy Isaac   05 October 2021

Does the same apply if I come back to India (OCI ) and file it there locally. My first concern is that I do not have a family support here. And the second concern is that I have heard India is not a part of the Hague Convention, so even if I get a court order here , wouldn't there be a possibilty that my ex husband can travel back to India with the kid and file the case from there. Please correct me if I have misinterpreted anything here.TIA

SHIRISH PAWAR, 7738990900 (Advocate)     05 October 2021


Hague convention is related to adoption, illegal trafficking of childrens. So it will have no connection with your case.

As per my view, you cannot file child custody case in India. 

Preethi Niel   29 November 2021

hi, am separated from my husband but no legal formalities have started yet.
am not ready to provide divorce now.
however I would want obtain my daughter's custody completely under me so that I can avail passport for her and move to abroad.

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