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Rahul Sharma (dsfgsdgs)     26 May 2018

Child custody to father?

Dear Friends,

I'm an Indian born Australian Citizen, OCI card holder, married to an Indian Citizen from last 3 years, and have one 2 years old son, who is born in India and gained Australian Citizenship by Descent. At the moment, he doesnt have OCI card. We have taken visitor visa for 1 year for him.

We live in India and are working so my mum takes care of our son all the time.

My wife who is an Indian Citizen is creating problems in family. She is not interested in our relation now. She didn't applied for Australian Spouse Visa as she doesn't want to move to Australia because she is very possessive about her family and want to live with them. At the moment we are living together. I have 3 brother-in-laws and 2 sister-in-laws so there is no question of anything like they need her support or financially dependent on her.

So now I wish to move back to Australia with my son.

My questions are:

1.Can I take my 2 year old son to Australia with me as he is an Australian Citizen. 

2.Can She by any means create problems for him to move to Australia with me. If yes, then what is the point of my Son having Australian Citizen.

3. Can I apply for divorce in Australia if i got married in India. 

My reason for divorce is that my in-laws family are forcing me to live in India. As they know if by Indian law they can stop me taking my child to Australia as he is an infant, so they can force me to live in India and are harassing me in different ways.

Please advice.



 3 Replies

Aman chawla (DELHI HIGH COURT ADVOCATE)     26 May 2018

Answer-1=Yes, Sir you can take your chile to Australia if he has Australian citizenship.

Answer-2= Yes, she can create hindrance if she has any order from the court regarding the custody of the child. If she doesn't have any such order then you can take the child to Australia.

Answer-3= Does your wife has Australian citizenship, if yes then you can file divorce there also or else you have to follow the provisions of section 19 of HMA 

Section 19 deals with the territorial jurisdiction of Petitions filed under the Act.

19. Court to which petition shall be presented: Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction –

(i) the marriage was solemnized, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

(iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.

section 19 provides 5 options. It enables you to file the Divorce Petitions under any one of them as per your convenience.


Aman Chawla

Vijay Raj Mahajan (Advocate)     26 May 2018

You're Australian citizen and domiciled in Australia not India so for all purpose Hindu Marriage Act, 1955 will not apply to you so no question of section 19 HMA etc. Just don't worry you can always defend her divorce case if filled under Hindu Marriage Act,1955 by your wife in Indian court get it dismissed under Order 7 Rule 11 CPC. She will come to compromise for child custody only after you resist her divorce petition filled under the HMA. As far your Australian son is concerned, just inform your Australian High Commission about child abuse by your Indian wife on the minor child and help to get your son deported to Australia as soon as possible, you will get proper help from your High Commission in India. Don't worry, contact me for any legal help in India, check my profile here in this forum for my complete contact details. My own daughter, son in law and grandchildren are Australian citizens with OCI.

Have a Heart Foundation (Sales & Mktng)     02 February 2021

A Survey is being conducted for Reforms in functioning of Family Courts in India.

Separated Parents in Child Custody / Visitation disputes are requested to participate and fill the form in link below.

Our Children Deserve Better

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