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Varun   16 September 2018

Child custody to father

Dear Friends, 

I am an Indian born Australian citizen living in Melbourne. I got married in 2013 to an Indian citizen in New Delhi and had a 2 year old son from our wed lock. We lived together until I moved to Melbourne in early 2018. My wife and my son are living in her parents’ house. My wife is still an Indian citizen and my son is an Australian citizen by descent.

From last one year I can find out that my wife has some extra marital affair as her behavoiur is vey odd. She dont do any work.. She also never seems interested in applying for Australian PR and want to do things in her own way. My son got one year visa to live in India as he has the Australian passport. We didn’t applied for his OCI. He is living in India on a tourist visa which is currently for one year and every year we have to renew his visa.

I want my son to live in Australia with me as my wife in not worried about his wellness and education. All the funds I send to her from Australia, she spends on her own self. She wants our son to live in India so that she can enjoy money sent from myself from Australia.

  1. Can my wife extend my son visa without consulting me?  Son’s passport is with her only.
  2. Can I have right to bring my son to Australia without my wife as she is not interested to come.
  3. As my son is an Australian citizen, does it mean that he should be able to come and live in Australia in near future or he will be under my wife care only as she is his mother?
  4. Do Australian government has any kind of laws to bring his citizen from other country like in this situation?

Now, I feel if I go to India to meet them she can put false case on me. So I am very worried about it. I don’t know what rights as a father I have in India and Australia.

 Is it advisable to report to Australian embassy in India not to extend his visa? And will they be able to do that as I was told that a mother has the default custody for a minor child till 5 years.

Kindly Advice if you have any knowledge on this.




 7 Replies

Vijay Raj Mahajan (Advocate)     16 September 2018

Child is in India with mother and for the purpose of claiming the sole custody of the minor child you'll need to file petition under the Guardian and Wards Act, in Family Court in India. Without getting the sole custody and permission to take the minor child with you to Australia it will not be so easy to take the child out of India. The passport of the child is in the possession of the mother and without that you won't be able to clear the Immigration of Indian Airport even if you try to take the child out of India by force. The Australian High Commission is not issuing Visa for the child stay in India, it's the Ministry of External Affairs that issue the Visa, so even if you approach your High Commission , they won't be able to help you. Otherwise too the Australian authorities will ask you for court's order for child custody and taking him with you to Australia if you plead for any help from them. You need lawyer to help you out and meditate between both of you for amicable settlement otherwise lot of trouble and even looking your child's custody for ever till he attain age of majority can be there. You contact me directly for working out the case for you.

Varun   16 September 2018

Dear Sir, 

Thanks for your kind advice.

Sir, will the Ministry of External Affairs issue or extend visa to a minor without his father consent as he is an australian citizen.

Regarding passport, my son passport is for 5 years, then after that he will have to apply for a new passport. So my question is that even we are not divorced, there is no custody care granted to either my wife or myself, will she be able to apply for his passport or even extension to his cureent visa without his father consent on her own.

Also, cant I get his passport lost compalin to Australian authority or local police so that she wont be able to apply extension to his current visa. I am not sure about this. So just checking. 

If in case his visa dint get extended, she has to pay fine. because he needs some kind of visa to stay in india as he is a Australian citizen with australian passport



Vijay Raj Mahajan (Advocate)     16 September 2018

You both don't need to be divorced for the custody of child,even without divorce either of the parent can have sole custody order from the court. The passport of child can be issued to mother if she's having child custody with her, you may wait for 5 years till the expiry of the present passport of the child and by that time your wife will do a lot in this regard as you will keep on posting questions in online website like this one. Ministry of External Affairs will give visa for child in India on the basis of the mother, I got visa for my Australian grandson in India when he was not having OCI, that's no problem for mother to get it.

Varun   16 September 2018

Dear Vijay Sir, 

Thanks for your good advice. Really appreciate.

One last question pls, is it possible for me to take divorce after one year of living seperate in Australia or I have to apply in indian court only. We got married in Delhi. 

Sir, even if she comes on PR visa to Australia, then also she will be having all rights for the child custody. As she always says me that you can file my PR. After going there i will see whether I like it or not. If i dint like staying there I will come back with my child.

Is it advisable for me to apply for her PR. Will it make any difference in laws if a child is in Australia. Will she be having upper hand in Australia too?

Just last advice this on this one.



Vijay Raj Mahajan (Advocate)     16 September 2018

If the child is in Australia, it will best for it as the Government of Australia has full control on you both with regard to the minor child. Any wrong step taken by anyone of you that is detrimental towards the welfare of the child can put you both in big trouble. You try to get her to Australia, apply for her partner or spouse PR, that itself will take long time but at least the moving the PR application for her give her incentive to come there in Australia. Once she's there you can plan about divorce etc. As far going in for divorce in India is concerned that is open for you but when she's here with her parents and other relatives, the divorce here will be more difficult for you to get and that too on her terms and conditions. I'm based in Gurgaon that is Delhi/NCR but visiting Sydney off and on as my children are settled there so you can be in touch with me anytime you require my help. My details are mentioned in my profile here you can save and be in touch with me.

Varun   16 September 2018

Thanks so much Dear Vijay Sir. I really appreciate your advice on this matter. I would definitely like to meet you in Australia.

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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