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Ravi (Consultant)     22 October 2017

Child custody of indian origin foreigners

one of my Friend migrated with his wife to Canada and child born in Canada; later because of some problem women left with child without knowledge of child father when he was away,

She came to India and filed for custody without telling all are canadians and Indian court granted custody exparte.

Father filed custody as well as Divorce in Canada and won as all are canadians.

but here in india she filled all false case on her husband even she is canadian without disclosing it, so to prevent him to come to india and claim child custody.

now what should he do.



Learning

 15 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     22 October 2017

He can file an execution of those orders which was passed in his favor by the Canadian Court.

Vijay Raj Mahajan (Advocate)     22 October 2017

Firstly the custody case filled by the Canadian mother in India under the Guardians & Wards Act,1890 is applicable to the parties and decision made by the Indian court under this Act is valid for Canadian mother, father and child issue relating to custody is valid. However since an ex-parte order made against the father, he can always challenge such order and get order/decree passed by the trail court set aside by making application under Order 9 Rule 13 of the Civil Procedure Code. The power of atorney given to the Indian advocate to appear and get the order set aside is very much possible without personal presence of the respondent who lives in Canada.

Secondly, the parties are supposedly Hindus by religion and got married in India according to Hindu form of marriage covered under the Hindu Marriage Act,1955. The wife will file for divorce in Indian court under the Hindu Marriage Act,1955. The Canadian husband can always challenge the divorce petition filled under the Hindu Marriage Act,1955 on the ground that both parties are Canadian and domiciled in Canada hence the Hindu Marriage Act,1955 is not applicable to them as per section 1(2) of the Act and as per the Principle of law laid down by the Supreme Court of India in the Sondur Gopa vs Sondur Rajini case. The husband can file application under Order 7 Rule 11 read with section 151 of CPC in the Family Court where the divorce case is filled by the wife and try to get an order that will prevent wife for getting divorce in India under the Hindu Marriage Act,1955.The power of atorney given to the Indian advocate to appear and get the order set aside is very much possible without personal presence of the respondent who lives in Canada,

The criminal complaints/cases if have been lodged/filled in India can be challenged in the High Court by getting those set aside/quashed on the ground of jurisdiction of the Indian court if the offences reported were not between Indian citizens and were not happened in the India. False complaints can be quashed by the High Court without the accused personal present in India with help of his power of attorney.

The above mentioned legal issues will help the Husband to dictate terms to the wife, get the complete physical custody of the minor child and take the child to Canada with him. This formula helped me for my Indo-American client to get his minor child's complete physican custody from the mother who happened to do the same by taking the child out from USA., came to India and filled divorce case in India. Many more like matters for my foreign clients struck by Indian laws while sitting outside India, I had privellage to handle and settle them in their favour. The Indian laws favour women no doubt about it but if you get services of experienced lawyer in field men can achieve a lot and be satisfied.

 

vijaymahajan5758@gmail.com 

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     22 October 2017

if the marriage was solemnized as per Hindu law in India then the decree of divorce granted in Canada is not valid in India as per section 13 of Civil procedure code.

Ravi (Consultant)     22 October 2017

File execution of order in which country ? as she is hiding in India

Ravi (Consultant)     22 October 2017

Sir you said "Firstly the custody case filled by the Canadian mother in India under the Guardians & Wards Act,1890 is applicable to the parties and decision made by the Indian court under this Act is valid for Canadian mother, father and child issue relating to custody is valid."

what if someone kidnap a child abroad n come to india n file custody, and she will get custody then what type is law is this, when none of them are indians

Ravi (Consultant)     22 October 2017

but none of them are indian now, how she can file divorce in  india. as a citizen of canada husband already acquired divorce as well as Custody in Canadian court.

Vijay Raj Mahajan (Advocate)     22 October 2017

Mother bringing her child to India is not an act of kidnapping, mother is a natural guardian like father can take the minor child anywhere she so desire. Yes she did not inform it to the father of the child who is her husband is a moral mistake on her part not a criminal offence under the Penal Code.

Secondly, the Guardians & Wards Act,1890 applies to everyone/ any nationality and extends to the whole of India except the State of Jammu and Kashmir, any petition filled under this Act in the court of original civil jurisdiction where the minor child ordinarily resides in India can pass order. If the jursidiction of the court not challeged by the father at that time that child was not ordinarily residing in India, that he can do it now after setting aside ex-parte order of the court. The technical issues need to be handlled properly by expert lawyer not by novice.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     22 October 2017

Dear Ravi The marriage was solemnized in India as per Hindu Law or Not?

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     22 October 2017

You may file an execution of that order before the court who granted the custody of child to you an that court issue the summon to her through Indian court an then Indian court execute the same as its own order but subjected to some conditions.

Ravi (Consultant)     22 October 2017

yes they married as per Hindu rites

Ravi (Consultant)     22 October 2017

if foreighner brings their kids to india and indian court grant them custody then india will b heaven for custody battle, thats why India dint sign Hague Convention. now if father take child with him to canada then Indian law term it as kidnapping right ? if mother take thats not kidnapping


(Guest)
Your anguish suggests that the husband is not your friend but yourself.

Ravi (Consultant)     23 October 2017

what if you are wrong. how much u r ready to lose if i prove i am still Indian

your reply shows you have no Answer for my question.


(Guest)
I do have an answer. The unfortunate truth is despite what advocates promise to you, experience seniority etc. blah blah blah.. the husband can forget getting custody of child in his life. Indian courts always give child custody to mothers unless she is a criminal. They will not also change custody unless there are extraordinary circumstances. If they got married according to HMA citizenship doesn't matter. She can file divorce and other cases freely in India. The Canadian court judgements have zero value here. Advocates will say they can pull rabbits out of their hats. They are just thinking about how to make money always. Bottom line is the best result the father can expect is some visitations with the child throughb court. But those can get difficult also because mothers almost always tutor children against father. If mother can get daughter to say I don't want father, that's all court needs to deny visitations also. But all is not lost. I suggest your friend to file for custody not to get custody but to harass her and bring her to his terms. Staying in Canada won't be enough. He has to go back to india and fight. Good luck.
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