you can issue your wife legal notice to return to her matrimonial home

2) mention that you were not informed that she would be taking 10 month old baby on vacations abroad

3) if wife refuses to return to her matrimonial home with your baby file petition for RCR under section 9 of HMA and seek joint custody of your child

4) contact a local lawyer

if you are awarded joint custody wife would need your consent to take child abroad

There is no criminal offence committed by her, but if there is any cruelty on her part then you may file divorce case against her before the family court of your area under section 13(1)(ia) of Hindu marriage act.

Feel free to call

1.Taking a child without permission of a parent to abroad can be treated as crime if wife refuses to divulge any information about the child.

2.SO send them a notice seeking whereabouts of the child and her immediate return.

3.if they ignore such notice you can file a Habeas Corpus petition in court.

4.Filing a case for custody is another option.

1. Unless the issue of child custody gas been decided by a competent court either parent is at liberty to take the child away.

2. If you had an apprehension that she may remove the child from your custody and take her out of India you ought to have sought injunction against her.

3. Now the only remedy in your hands is to file a petition for child custody in the guardianship court which will be decided by the court on the touchstone of welfare of child.

Dear Sir,

You must file a Child Custody case in Indian Family Court as per the procedure described below. and you have to get serve the summons on your wife by following the below procedure provided by Ministry External Affairs. If she remains absent you get an Indian Decree from the Family Court. There after you have to execute the same through Indian Agencies in Foreign Countries.

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Service of Summons Abroad

Q: How long does it take for summons to be served on an individual living outside India?

A:

Generally, most countries do not entertain mutual legal assistance requests if the date of appearance/hearing of a case is less than three months away. Moreover, 2-3 weeks are to be allowed for the file to be examined by the concerned Ministry in India. In total, you would need to plan for about 4-5 months for effecting service of summons in a foreign country.

Q: Is there any fee required to be paid for serving summons in a foreign country?

A:

In civil or commercial matters, some countries (ex: Canada, Australia) charge a fee for serving summons. Please contact the relevant Indian Embassy or Consulate to get details in this regard.

Q: How is Service of Process or Documents undertaken in respect of Foreign Countries who are signatories to the Hague Convention?

A:

India is a signatory to the Hague Convention on the Service Abroad of Judicial and Extra-Judicial documents in Civil and Commercial Matters. Therefore, the formal method for service in India with effect from August 1, 2007 is pursuant to the Hague Convention, taking into account the declaration or special conditions mentioned by India in while signing the Hague Convention. The declarations made by India while signing the Convention include the following:

Documents for service must be written in the English language.

Documents cannot be served via mail.

Documents must be served in India indirectly via proper authority.

Documents under the Hague Convention cannot be served directly to the defendants in India by private judicial officer.

For more details, please refer to the website of the Ministry of Law and Justice:http://lawmin.nic.inExternal website

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Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. During divorce or marriage annulment proceedings, the issue of child custody often becomes a matter for the court to determine. In most cases, both parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent.

In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated. Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child's housing, educational needs and food. In most cases, the non-custodial parent still has visitation rights. Many of the religions practicing in India have their own personal laws and they have their different notion of custody.'

Custody Under Hindu Law:

All the personal law matrimonial statutes make provisions for dealing with the issue of child custody. The provisions in the matrimonial Acts can, however, be invoked only when there are some proceedings pending under the Act. Hindus have an additional Act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Apart from this, there is the Guardians and Wards Act 1890 (GWA). This is a secular law for appointment and declaration of guardians and allied matters, irrespective of caste, community or religion, though in certain matters, the court will give consideration to the personal law of the parties. The provisions of the HMGA (and other personal laws) and the GWA are complementary and not in derogation to each other, and the courts are obliged to read them together in a harmonious way. In determining the question of custody and guardianship, the paramount consideration is the welfare of the minor. The word `welfare' has to be taken in its widest sense, and must include the child's, moral as well as physical well-being, and also have regard to the ties of affection.''

The English and Indian decisions are replete with such statements that : (i) the children of tender years should be committed to the custody of the mother, (ii) older boys should be in the custody of the father, and (iii) older girls in the custody of the mother. But these are judicial statements of general nature and there is no hard. and fast rule. As to the children of tender years it is now a firmly established practice that mother. should have their custody since father cannot provide that maternal affection which are essential for their proper growth. It is also now ac for proper psychological development of children of tender years ma is indispensable.'

The Hindu Minority and Guardianship Act, 1956 contains a provision which lays down that custody of a child upon the age of five should ordinarily be with the mother. Under other personal laws, though it is no such statutory provision, the Indian courts have consistently taken view. The following observation of Beaumont, CJ. represents the judicial knew ......if mother is a suitable person to take charge of the child quite impossible to find an adequate substitute for her for the child.'

In Re Kamal Rudra Das J. expressed the same view vividly thus:

I have no doubt in my mind that the mother's lap is God's own cradle for a child of this age, and that as between father and mother, other things being equal, a child of such tender age should remain with mother.''

But a mother who neglects the infant child as she does not want to sacrifice the type of life she leading can be deprived of custody.

In respect of older children our courts take the view that the male children above the age of sixteen years and female children above the age of fourteen years, should not ordinarily be compelled to live in the custody to which they object.' However, even the wishes of the mature children will be given consideration only if they are consistent with their welfare! In 'Venkataramma v.. Tulsi',' the court disregarded the wishes of the children as it found these to induced by wholesale persuasion and were even tortured.'

Custody to third persons. -Ordinarily, custody should be given to either of the parents. But where welfare so requires, custody may be given to a third person. In 'Baby v., Vijay' granting custody of two minor children to maternal grandfather, the court observed that even if the father was not found unfit, custody might be given to a third person in the welfare of the child.'

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There are two things which you may do in the current situation -

1. You can bring a case of 'restitution of conjugal rights' u/s 9 of the HMA in against your wife stating that she has willfully left the matrimonial home and you want her to be back at the matrimonial home. If she will return back then so will be your child.

2. If you think that asking your wife to return back to matrimonial home will be dangerous to you and your family and you may face several other criminal cases then you can file the case for seeking the custody of your child u/s 26 of HMA. You are required to state the facts in totto of what has happened and why the custody of your child shall be awarded to you. Upon hearing to your petition the custody of your child will be awarded to you and then you can have your minor daughter at your place.

Hi,

As there is no case of custody is involved yet, the wife is the lawful custodian of the child till the age of 5 as per the section 6 of the Act. No concent is needed to do so and you are selected from 2 months only .

The most important post-divorce problem with which the individual and society are most vitally concerned is the problem of finding adequate solutions to matters concerning custody, education, maintenance of, and access to children. The father and the mother offer different and complementary cognitive and emotional organizations of the world to the infant. An intact family environment consisting of a child and his or her mother and father presents a less burdened environment for the development of a happy, healthy and well adjusted child .The benefit to children which come from being raised by their mother and father are maximum in an intact and relatively stress free home.” Children are fragile, handle them with care. If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access.

If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with. Both parents continue to be natural guardians. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent. In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated. Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child's housing, educational needs and food. In most cases, the non-custodial parent still has visitation rights. Many of the religions practicing in India have their own personal laws and they have their different notion of custody.'

Try to Handle the situation with at most care. In most of the time the court allow the custody of infants to his/ her mother. So better to avoid a legal conflict try to settle the matter amicably.

Has your wife removed the kid from US?

Where was the kid born and nurtured?

Where she filed police complaint?

What is the substance of the complaint?

File a petition for restitution of conjugal rights against your wife since she has abandoned you without any just and sufficient cause. Also, seek interim custody of your child.

Dear Concerned,

If your wife has taken your child out of India on vacation - anyhow she will have to return. Once she return you may choose to file visitation rights under guardian and wards act and also restrain her from going overseas without your consent with the child the next time.

Best of Luck

1. For taking any legal action, you should access its benefit in short and long run.

2. If she has gone abroad on vacation, then she is expected to return shortly and before your step to take any legal action for bringing back your daughter matures, she will return to India.

3. So, you shall reap no benefit in the short run by taking any legal step against her for taking your daughter abroad with your consent or information.

4. You should not file a petition before the Court praying for periodic child visitation right also with the prayer to restrain your wife to shift your daughter to any other place without your or the Court's consent since she has taken her abroad without even informing you.

1. Since she is just 10 months old, it is indeed risky to travel with her to a foreign country and you should stress on the point that she should be restrained from taking her daughter away from where she is now staying without your or the Court's consent.

2. It will serve your long term purpose to ensure that your daughter is not permanently taken away by your wife to a foreign country.

as no court cases are going on , and there is no order of custody of a child , nothing can be done o this regard, as your wife is the mother, you cannot call it a kidnapping. it is better to file for divorce case and child custody, as the child is really small your wife will get the custody and you will get the visitation rights. thereafter if your wife takes the child without your consent you can always complaint in the court

hi,it is advisable to file for custody of minor in family court,with a apprehension that your wife is having a intention to separate your child from you

Taking the child out of the country for vacations is not an offence.

Since she is staying separately away from you, she might state that she tried to contact you but you could not be reached or approached hence in view of the urgency and short vacation trip,, she undertook the trip thinking that she will inform you from there or after returning, hence such things are not an offence as per law.

If her intention was to take the child permanently outside the country to some other country with an intention to settle in that country itself without your consent or NOC, then that becomes an illegal act, for which you can protest and also file a child custody case keeping the child paramount welfare as the view to support your claim.

I am in Jalandhar, Punjab, India.

The law is common through the country and there is no particular law for Punjab on this.

1) you cans eek joint custody of your child seek injunction restraining wife from taking child abroad without your consent or court orders

2) it is not crime to take child abroad for vacation without father consent

3) you can file habeas corpus petition to direct police to produce the child which has been taken away by wife without your consent

Since habeas corpus petition is filed in high court and it passes expeditious order , it is preferable than a civil suit to seek injunction which is filed in lower court.

Sir ,

In the matter you may file in a writ of habeous corpus in the jurisdiction of the concerned high court. The notices to the same may be issued to the parties through the concerned embassy. Once such matters are filed and notices issued then the embassies try to get the person returned back to the parent country. As stated she is there on vacation such a notice through the embassy will alert immigration to get the concerned back to the country without further stay on visa anymore.

Please feel free to write at

1. You cannot stop your wife from filing a counter case. The remedies given to her by the legal framework of the country can be availed by her even if you make the first move.

2. If she has already taken your child out of India then where is the question of restraint issuing from the court? Restraint could have been issued only while the child was not removed from India. Now it can only be a petition for child custody as preventive legal remedies through injunction were not adopted by you.

3. Habeas Corpus will not work in your case as the child has been removed. I repeat the only remedy is to file a petition for child custody as evidence has to be taken to determine which parent is more competent to secure child's welfare.

4. Forget about gender equality and Hague Convention. Adopt a practical approach.

Please confirm whether Taking a minor child (10 months old) without permission of father to abroad can be treated as crime if wife refuses to divulge any information about the child.

It is not a crime under criminal law.

However you can file a case for child custody and can seek interim relief that the child should not be taken outside the country and your wife be restricted to take the child abroad without your consent.

Please provide more details about Injunction,Temporary Protective order or prohibited step order and how should I prevent her from settling abroad with my child without my consent.

Since your wife is staying separately away from you, you can file a child custody case and in that you can seek the said reliefs as interim relief including visitation rights.

Consult a local advocate and discuss on the issue in detail.

What is Habeas Corpus petition in court ?

This petition is filed in the high court to direct the police to produce the mising person.

India follow Hague convention to some extent.

The prime concern of the Hague convention is the restoration of children who have been wrongfully removed, whether or not this is in breach of a custody order in one of the Contracting States. So it goes wider than the recognition and enforcement of custody orders and protects rights to custody even where there has been no order. Essential elements of the Convention are that it applies to a child under the age of 16 who was habitually resident in a Contracting State at the time when he was wrongfully removed or retained.

As per the convention treaties a child's habitual residence cannot be changed by one parent without the consent of the other.

Supreme Court of India held that the question regarding the custody of the minor daughter cannot be decided on the legal rights of the parties. The custody of the child has to be decided on the sole and predominant criterion of what would best serve the interest and welfare of the minor.

Mothers and fathers both have a prominent role to play in supporting the growth and development of their children. In the case of a child is taken overseas without the other parents consent is not a crime in India under family laws. Supreme court of India also recognized the Hague Convention and clarified that the paramount consideration of the welfare warrants the decision to retain the child to the mother.

But the father can approach the family court for getting visitation right

Taking minor child without permission of father is not right but she is also her mother so you can't file criminal proccedings against her. If you need to stop her you have to file custody proccedings before family court and seek interim order from court to stop the same then only the question of visitation comes. If in future she doesn't allow you then you have to file custody proccedings of your child.

Habeas corpus is a petition in high court through directions in form of a Writ is issued by court to find out the whereabout of an person not found or in illegal custody of police etc

Indian government has not signed and ratified Hague convention till date. There was process going on but no material outcome has resulted from the same.