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satyen (PARTNER)     20 June 2017

Wife wants to quit marriage and leave to canada

Hi My wife has plans to apply for PR (permanant residency) and settle in Canada ,She does not want to fill the Canandain PR applicatin with my name as i would be entitled for PR if she gets it, So she is asking for a Divorce from me with mutual consent .(this will help her in her PR status as Divorcee) We have a 5.6 years old daughter whom i am very attached  so i need joint custody 

Now my question . My wife gets her PR..we have joint custody in india.(mutaul divorce). Daughter been blood relation with mother gets PR too..Is she entitled to take her to Canada for her education if we  have aggreed for a joint custody.

Her PR status will take atleast 9 to 12 Months from June 17 .ie she may get it by June 18

i do not want to loose my daughter and wann see her grow up with me 

Please give me your valuable inputs . 






 4 Replies

Raveena Kataria (Advocate )     21 June 2017

The Supreme Court with regard to cases of Child Custody often states that it’s not the rights of the parents, but the welfare and interest of the child which is of paramount importance. Section 6 of the Hindu Minority and Guardianship Act, 1956, technically gives that the natural guardian of a Hindu minor (son or unmarried daughter) is the father, and then the mother. Yet again, the number of cases where the mother gets sole custody is same as father getting sole custody (it differs as per facts and circumstances in each case.)

Joint Custody in India is still by and large unprecedented. A recent judgement in 2015, (Read- marks the first landmark judgement where the court denied awarding exclusive custody to the mother, and the divorcees were awarded with child custody of 180 days each (in a year.) However, it’s hardly likely that the court shall offer the same resolution in your case as it could hamper with her education, even personal growth. (The child having to constantly travel back and forth between two nations.) Either you could apply for sole custody or make some kind of arrangement with the mother of the child. If she’s bent on leaving, and you apply for joint custody, most likely only one of you will be given the physical custody (taking primary care of the child.) 

satyen (PARTNER)     23 June 2017

Thanks madam. Grateful for time taken to reply my query. Will work as per your path shown. Thanks

Kumar Doab (FIN)     19 September 2017

I am sending you a few links.

You may pick up relevant points and discuss wih your own local counsel that is well aware of detailed facts of your matter.

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