Divorcing a french national and child custody

Filing a divorce petition in India is a much smoother and safer route. The courts will receive a petition from an NRI for mutual consent divorce and the statements of both individuals will be recorded.

For purposes of appearance in court proceedings, if one party is unable to come, a power of attorney can be accorded to any person. This person should preferably be a family member. Once the statements of the individuals filing for divorce are recorded, the first motion is granted.

The period of 6 months can be extended to 18 months from the date of first motion being granted. The courts have allowed for some amount of flexibility to be granted in this regard. Thus, an NRI can assign his consent and his presence between a period of 6 months to 18 months to acquire the final decree for mutual consent divorce by the courts.

The Supreme court of India has decided in Arathi Bandi case that Indian court should not interfere or set-aside the foreign court decree on the on the ground that USA law was inconsistent with Indian Law. In a peculiar case where husband and wife acquired USA citizenship and married in USA according to Hindu rites and customs. And they also obtained divorce according to US laws in US Courts. Husband has obtained child custody in US courts. On arriving India the Indian police took the child from the father and handed over to the mother. Supreme court strictly ask the mother to return the child and to obey the US court order.

You can read more about your query on https://www.legalservicesindia.com/law/article/1225/15/Can-Indian-courts-can-decide-the-Child-custody-of-a-Foreign-National-child-

Regards,

Anaita Vas

Dear Anaita

thank you for prompt response. There are a few differences with the scenario in your response

1. The husband is a "white" French national

2. The marriage was held in France under French law

3. The son was born in France

4. The wife - Indian national - with a French resident card returned to India and would like a divorce

5. The husband is unwilling to divorce, hence there is no possiblity for mutual consent

Could you please advise me on this? Will the wife gain custody of the child? Can the divorce petition be filed in India?

Thanks very much