Child custody to father?

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.

Regards,

Aman Chawla

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.

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