Immigration with minor child from first marriage
B_E_S_S___
(Querist) 13 August 2015
This query is : Resolved
Background: Father has full custody of the minor child from first marriage. Divorce decree and consent terms narrate that the mother can have 2 weeks of custody per year during vacation. Mother has never bothered for this. Remarried and her whereabouts not known now. Father and solicitor tried visiting her known address, but the property is sold, and the new owner is not aware of whereabouts either. Phone numbers known to the father and solicitor are not working. Emails remain unanswered since the past 10 months.
Situation: Father has an opportunity to live and work abroad. The visa policies of the host country say that the mothers consent and signatures are required on a certain application form, or, the father should have court issued order giving him complete rights to decide on where the minor child has to live.
What can be done in this case? Which type of petition or prayer can be filed in the family court and what are the chances of a relief and grant of the said letter from family court with exact words as required for immigration- i.e. "Father having permanent custody of minor child has all rights to decide on where the child should live".
Thanks,
P. Venu
(Expert) 14 August 2015
When the mother's whereabouts are unknown and it is impossible to be known, the father, effectively, is have full custody. Bring the matters to the notice of the Court and get appropriate orders.
B_E_S_S___
(Querist) 14 August 2015
Thank you P. Venu for your reply. Highly appreciated.
We have drafted the petition and plan to send out summons to her known address as well as to advertise in local newspapers. The return receipt from the summons, newspaper adverts, sms, email and call logs would be enough to go along with our petition? Do you foresee anything else that we should provide to the court?
Thanks,
SAINATH DEVALLA
(Expert) 14 August 2015
Make sure that U get a favourable decision from the court so that in future U will not have any legal hurdles from UR divorced wife,regarding the child.For UR information I am giving the below decision of SC.
Custody cannot be denied to women who remarry: SC
Moving away from a traditional view of the law, the Supreme Court of India has held that a divorced mother can be granted custody of her minor child even if she remarries
In a landmark judgment for women and children's rights, the Supreme Court of India has ruled that a divorced woman is entitled to custody of her children even if she remarries, notwithstanding the fact that the father is the natural guardian under Hindu law.
The court ruled that the welfare of minor children was of paramount importance and that the child's wishes should be taken into consideration when deciding custody.
On November 21, a two-judge Supreme Court bench of Justices A R Lakshmanan and Altamas Kabir reversed a Kerala High Court verdict and restored the order of the family court, which had allowed the mother custody of her child.
The Supreme Court said: "The remarriage of the mother cannot be taken as a ground for not granting custody of the child to the mother. The paramount consideration should be given to the welfare of the child. It also has to be seen whether in view of his other commitments, the father is in a position to give personal attention to the child's overall development."
On the matter of the father being the natural guardian, Justice Lakshmanan wrote in his judgment: "The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after divorce is no ground for depriving her the parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child... if the court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage, involving a mother per se, will operate adversely to a claim of a mother for the custody of her minor child."
The court was ruling on a case involving a woman, Lekha, who gave birth to a baby boy during separation from her husband of two-and-a-half months. She later obtained a divorce on grounds of harassment, and a trial court in Kerala granted her custody of her son.
Lekha remarried while her former husband was appealing against the custody order in the Kerala High Court. The high court granted custody of the child to the father, on grounds that Lekha had married again after assuring the trial court during the custody hearing that she would not remarry.
It was this decision that was the basis for Lekha's appeal in the Supreme Court.
The Supreme Court bench, after speaking with the couple's son, now 12, directed that custody of the boy be returned to Lekha and granted her former husband visiting rights only. The court noted the fact that the child wanted to live with his mother.
The apex court felt that notwithstanding Lekha's second marriage, there was no hindrance to her getting custody of the child as she had enough financial resources.
Source: The Hindu, November 22, 2006
B_E_S_S___
(Querist) 14 August 2015
Thank you SAINATH DEVALLA. I am not sure how the case hearing that you cited relates to my matter? In my case, the mother is not contesting for any rights. I always had the full custody and it has been more than 5 years since. My child lives with me and the mother has never bother to even check the well being of the child, let alone visiting once in a while. She never was interested in domestic life and from the looks of it, mine will be a non-contested case. Note that I am not seeking custody of my child. I already have it. It is just that the paperwork does not clearly state that I also have sole rights to decide where the child is to live (especially abroad).
Is there a place where previous such judgements can be searched for? And would it be worthwhile or helpful to quote or mention such cases in my own paperwork that I submit to the family court?
Thanks,
SAINATH DEVALLA
(Expert) 14 August 2015
I am saying in future,unless she forgoes the custody of the child permanently,her claim persists.
B_E_S_S___
(Querist) 14 August 2015
Thanks again SAINATH DEVALLA. I would respect her decision to meet the child in future. If she wants to, I can very well fly back to India during school vacations (which I anyways will be doing because there, during school vacations, it is quite common for parents to take leave from work to spend time with family).
SAINATH DEVALLA
(Expert) 25 August 2015
Very good gesture by the author in allowing privileges to his wife even after separation.Husband and wife may get separated but it is the children who are the ultimate suffers.
B_E_S_S___
(Querist) 13 January 2016
Dear Experts,
I am in need of help again. My lawyer filed a Petition D under Guardians and wards act at family court for this matter.
In the petition prayer, we stated all facts about this matter, provided all evidence, and requested the judge to allow me to take the child out of jurisdiction including an overseas country.
Honourable judge instead said that as per Indian law, you can already take the child overseas. He asked my lawyer to consult a senior or expert about this matter.
While my lawyer is checking with his seniors and others, I would like to ask experts here about this. Is it correct that as per Indian Guardians and wards act 1890, I can take the child overseas? Even if the original divorce decree and custody order has given visitation rights to the other parent? Where can I get to see this act? I googled and came across a pdf which instead states the following:
26 . Removal of ward from jurisdiction.- (1) A guardian of the person appointed or declared by the Court, unless he is the Collector or is a guardian appointed by will or other instrument, shall not, without the leave of the Court by which he was appointed or declared, remove the ward from the limits of its jurisdiction except for such purposes as may be prescribed.
Thanks in advance,
B_E_S_S___
(Querist) 20 January 2016
Can anyone please help me with this?
Thanks,
B_E_S_S___
(Querist) 20 January 2016
Can anyone please help me with this?
Thanks,
B_E_S_S___
(Querist) 21 January 2016
From Guardians and Wards Act, 1890:
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26 . Removal of ward from jurisdiction.- (1) A guardian of the person appointed or declared by the Court, unless he is the Collector or is a guardian appointed by will or other instrument, shall not, without the leave of the Court by which he was appointed or declared, remove the ward from the limits of its jurisdiction except for such purposes as may be prescribed.
The leave granted by the Court under sub-section (1) may be special or general and may be defined by the order granting it.
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Any expert family lawyer from Mumbai who can help me with this? If you need, I am open to meet you in person this weekend with all documentation, evidence, and progress on the case so far.
