1) divorce decree granted by mutual consent is valid in India
2) you can file application in family court seeking sole custody of your child
3) welfare of child is paramount consideration
4) court would grant you sole custody of the child
Custody vs Guardianship
Me and my ex-husband applied and got divorce decree granted in Australia. However, before I could apply for a sole parental responsibility of my 5.5 year old son in Australian Court, I had to return to India. My ex had already returned to India. Our mutual consent divorce was filed due to his unwillingness to stay together. Now that I'm back in India, I'm a little lost with next steps. I have following questions: 1. Is the decree legal in India? 2. My son, resides with me. I had agreed to take his financial responsibility as my ex was not working at the time. I do not know if he does now. 3. I want what is referred as Sole parental responsibility of my child. By that I mean, I do not wish to have any involvement from my ex, neither physical or financial. He has never offered any help before and is not likely to take any financial responsibility. Thus, I'd rather not have to deal with him in any way whatsoever. My ex has not lived with our son for almost 3 years. Has not shown any inclination of taking any interest in my son's life. I recently learned that custody and guardianship are two different matters and have separate connotations. I have not engaged a lawyer and would do so, once I understand what I'm dealing with in the first place.
Asked 6 years ago in Family Law
Religion: Hindu
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8 Answers
Mam,since he is not objecting your custody, there is no need of filing it .. However if you want it legally then you can file application for custody in family court here in India ( your city)
The reason why I want a legal sole custody is that my work expects me to travel abroad for long terms. If the need arises in future, I do not want to be bound to ask my ex to sign papers for visa and other travel documents etc. Plus he hasn't been involved, but he might in future decide he wants to intervene or object. Which is something I want to avoid.
Asked 6 years ago
Mam, then you can file application for legal custody in the session court of your city
Court can award you sole custody of the child as your husband has not met his son for last 3 years and has never bothered to take financial responsibility for the child
1. The decree passed by the Australian court is valid in India. However, you should have filed the divorce petition in India as it would then have been relatively easier to execute the decree.
2. If the Australian decree does not cover the issue of child custody, or if it is silent on the manner in which the custody is to be held and child is to be maintained if he is taken out of India, you may then file a petition under Guardians and Wards Act to be declared as the guardian of the child. The court has to be guided by the concept of welfare of child.
3. Unless you are declared as the sole guardian of the child you will require the consent of the biological father of the child for passport/visa purposes.
Yes that is valid in India subject to the condition that it has been obtained on the ground mentioned in the Hindu marriage Act.
You can file a case for his guardianship and custody.
you will be dealing with both custody and guardianship, if the child is already in your custody then you will be filing a case for guardianship.
regards
1. It is legally recognised as valid divorce as per Indian laws.
2. Since the child is in your possession and custody, you just dont be worried about it.
3. As you are worried about the guardianship, please be informed that the guardianship of your child shall be only upto his age of 18 years.
Since the child is with you you o not have to file a child custody case, if he wants, let him file which can be challenged by you on merits.
The reason why I want a legal sole custody is that my work expects me to travel abroad for long terms. If the need arises in future, I do not want to be bound to ask my ex to sign papers for visa and other travel documents etc. Plus he hasn't been involved, but he might in future decide he wants to intervene or object. Which is something I want to avoid.
As per law even if courts grants you permanent custody, you may have to take NOC from him for taking him abroad with you.
For the present you dont worry about such situations, you can think about it when the need arises, you can get more avenues opened at that time.