Rights of a foreign mother to her Indian child

1. This case clearly showing conflict of jurisdictions in interparental child custody.

2. Child removal does not find any specific definition in the Indian statute books and since India is not a signatory to the Hague Convention, there is no parallel Indian legislation  enacted to give the force of law  to the Hague Convention (Article 3). Hence, in India all interpretations of the concept of child removal are based on judicial innovation in precedents of case law decided by Indian courts in disputes between litigating parents of Indian and / or foreign origin.

3. The Indian High Courts and the Hon’ble Supreme Court in India entertain petitions for issuance of a writ of habeas corpus for securing the custody of the minor at the behest of a parent who lands on Indian soil alleging violation of a foreign Court custody order or seeks the return of children to the country of their parent jurisdiction.  Invoking of this judicial remedy provides the quickest and most effective speedy solution.

4. Both parties marriage under which Personal law is not spelt here so I cannot comment which exact Code / Act of Indian jurisprudence will have larger bearing on long term outcome at the end if challenged by a foreign national mother such as you here. But, I do understand that the child is Indian national as is his father due to Indian High Commission at Dubai attested undertaking given by both parties in the past, but the mute question remains was it administered under Diplomatic Oath?

However let me attempt replying to your larger question with glimpse of some of the Indian decisions on more or less similar alleged facts as in your large brief before me;

A. The nearest parallel which in my opinion suits facts of your case was decided in two cases; Ref.: Dhanwanti Joshi Vs. Madhav Unde 1998 (1) SCC 112 wherein it was held that the Court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the Foreign Court as only a factor to be taken into consideration unless the Court thinks it fit to exercise summary jurisdiction in the interest of the child and that its prompt return is for the child’s welfare.
The next closest ref. to your facts before me I see is in Ref.: Eugenia Archetti Abdullah Vs. State of Kerala HLR 2005 (1) (Ker) 34 upholding the right of the US citizen petitioner mother in a habeas corpus petition, the custody of the children was handed over to the mother after holding that the High Court can exercise jurisdiction under Art. 226 Constitution of India.

B. After giving you glimpse of two more or less closest decisions of the land touching your facts before me, let me also prepare you with three flip-flop judicial views which quite recently Indian courts have taken and could be found in Ref.: In a judgment dated March 3, 2006 of the High Court of Bombay at Goa, reported as Mandy Jane Collins Vs James Michael Collins, 2006 (2) HLR 446,which was between a 62 years old American father and 39 years old British mother resident in Ireland and who were litigating over the custody of their 8 year old minor daughter said to be illegally detained in Goa by the father, the Court declining the issuance of a writ of habeas corpus held that the parties could pursue their remedies in normal civil proceedings in Goa. The Court dismissing the mother’s plea for custody concluded that the question of permitting the child to be taken to Ireland without first adjudicating upon the rival contentions of the parents in normal civil proceedings in Goa is not possible and directed that status quo be observed. This in effect means that the 8 year old minor girl continues to live in Goa without her mother or any other female family member in the father’s house. In a challenge to this decision by the mother before the Hon’ble Supreme Court of India, the appeal was dismissed on August 21, 2006, leaving it open to the parties to move the appropriate forum for the custody of the child, which if done, was directed by the Supreme Court to be decided within a period of three months with earlier visitation rights continuing to the mother. In another matter reported as Ranbir Singh Vs Satinder Kaur Mann, 2006 (3), PLR 571,  The Punjab and Haryana High Court declined to issue a Writ of Habeas Corpus to the petitioner father residing in Malaysia who was seeking release of his five year old son and three year old daughter from their mother’s custody in India . The High Court of Malaya at Kuala Lumpur had held that the petitioner was entitled to the legal guardianship of the said minor children. However, The High Court in India declining to enforce the foreign judgment of the Malaysian High Court, held that the matter can be re-agitated before the appropriate forum with regard to the custody of the children on the basis of evidence to be adduced by parties. The Habeas Corpus petition was dismissed with the observation that it would be open to either parties to move for custody of the minor children under appropriate law before an appropriate forum.

Remedy:-
Hence, in the absence of any Indian legislation on the subject, there is no uniform pattern of decisions to resolve issues of custody and contact which arise when parents are separated and live in different countries. ideally you should appoint an Indian Advocate who is well versed in International jurisprudence and understand well conflict of jurisdictions in interparental child custody and file a habeas corpus petition (HCP) immediately in the Hon'ble High Court of the State in which your husband and child are currently living praying for return of child and service the matter via video conference or by giving PoA to an Indian Advocate found via reference and appointed after all due diligence.

All the best if it helps!.

@ author 

we understand your anger " Indian " Lunatic Father but it hurts the indian fathers  who are on this forum who are similarly fighting custody or visitation cases with their better halfs ( women )  .

I endorse the views of Tajobs appoint an indian Advocate and give him the POA . you can start by asking for visitation for his annual and mid term vacation which would be granted over a period of time and you can visit your son during those periods .By the time this process of visitation gets in the child would be admitted into a school in india . Wishes and welfare of the child would be considered and the case would take years and than the court would state that the child should not be distrubed from his present state as he is well settled down and than the brain washing by the father too would take place .This is reality in india . 

Over a period of time as time moves on your visits would wear out the to and fro travel times in case visitation is granted as well as the time and money being spent and in due course of time an opportunity may crop up for your wherein re-marriage may  emerge .Shuttling up and down to visit your child would be a difficult task .