• Exparty divorce and child custody for indian origin foreign nationals

Hi,

I am a mother of 7 year old girl in USA and separated from my Indian husband 2 years ago after his family abused me and beat me up regularly. Both myself and my daughter have acquired American nationality and have OCI status. I do not intent to re-engage with my husband's family and have got a job here. I also allow her father to have telephone/skype contact and visit when he wishes. He is now planning to remarry and apply for divorce and child custody in India. I do not want to go to India at all, have no objection to divorce but will possibly allow him to apply and become exparty.
Can the Indian court give an exparty divorce and also child custody to my husband? we married under hindu act in India. I am very worried about child abduction by his family, if my daughter goes to India.
Asked 1 year ago in Family Law from United Kingdom
Religion: Hindu

File for divorce in USA and seek custody of your daughter

2) if your husband participates in divorce proceedings in USA divorce decree would be valid in India

3) if your husband seek custody of child in India contest custody proceedings

4) welfare of child is paramount consideration

5) court generally awards custody of child to mother

Ajay Sethi
Advocate, Mumbai
66757 Answers
4037 Consultations

5.0 on 5.0

The court shall serve summons on if your husband files divorce or child custody in India.

So there are two options if you donot want to come to India.

1. You can give power of attorney for both cases to any of your family member in India to contest both the petitions divorce and child custody.

2. The court shall after summons duly served if you donot appear decide it ex-parte. Which can be later challanged but though it can be decided.

I would advise you talk to your husband ask him for mutual divorce it's in benifit of both sign a agreement/ memorandum of conditions of divorce regarding custody and you can give POA to any family member to sign mutual divorce petition.

In.this way divorce can be set amicable and you don't loose child custody.

Shubham Jhajharia
Advocate, Ahmedabad
19206 Answers
75 Consultations

5.0 on 5.0

Let him apply for the divorce and child custody as you wish to let him go for ex Parte divorce it is a possibility and even if there is a custody allowed to the other you can later on go for appeal in this regard to set aside the ex Parte custody.

You may also file a suit in USA for the custody of the child

Vimlesh Prasad Mishra
Advocate, Lucknow
5485 Answers
17 Consultations

4.9 on 5.0

1) You can apply for Mutual Consent Divorce and secondly girl child custody remains with mother till girl child grow up till age of 18 years.

2) Let him apply for Divorce in Indian court that will benefit you only because you have married in india.

3) No, Exparte won't happen so don't worry.

Ganesh Kadam
Advocate, Pune
7453 Answers
65 Consultations

4.9 on 5.0

Hello,

If you do not appear then ex parte custody can be given. Two separate cases will be filed for divorce and custody.

Welfare of child is of paramount importance, if you are abel to establish the same then the court will not give custody to the father.

Regards

Anilesh Tewari
Advocate, New Delhi
16907 Answers
259 Consultations

5.0 on 5.0

Hi, if you do not contest the case the court may grant ex-parte divorce and custody of child ... It is advisable not to bring your child alongwith you and contest the divorce petition also , so that he cannot remarry again .. Under pressure he may come to a settlement of mutual divorce and agree for giving custody of child to you...

Hemant Chaudhary
Advocate, Gurgaon
4255 Answers
31 Consultations

4.9 on 5.0

Till the age of 7 the child has to mandatory stay with mother and there is a option where a child above 7 years is being asked by court with whom she wants to live with. In such case if your daughter is with you please take her into your confidence. Hope you understand what I mean.

Secondly if you do not appear upon summon served for a longer period exparte order is usually given by court.

But it is better to inform the court that you can not attend for your job as well as your childs schooling and your daughter has stated she wants to live with her mother; i.e. you and if necessary you can seek for skype video call to deliver your statements you can do the same over filing your petition seeking for skype video call as a prayer before the Learned Court

Aveek Bose
Advocate, Kolkata
950 Answers
4 Consultations

4.7 on 5.0

Dear Cleint,

Divorce can be granted by Foreign court also.

And through mutual consent, divorce is much easy, You agree with ti but with the condition of daughter Custody.

Mutual consent divorce can be applied through Power of Attorney Holder execute in any one to represent on your behalf.

Custody of daughter if applied ,that u can object.

As, if u allow for ex parte order, he may induce court to order daughter custody in his favor by submitting false/wrong facts about u in court, which may insist court to grant him custody.

Yogendra Singh Rajawat
Advocate, Jaipur
13088 Answers
15 Consultations

4.6 on 5.0

Hi,

In stead of ex-parte divorce, you may give consent for divorce and retain the child custody. Regarding your apprehension of abduction, you may file the informatory application to police authorities as well as high commission.

Ganesh Singh
Advocate, Delhi
3111 Answers
9 Consultations

4.5 on 5.0

Firslty, the concern being a mother is very well normal, don’t worry everthing will be good for you.

Secondly, no, he can’t do anything till the time your daughther is minor and doesn’t go to India as he can’t get hugs point acccpeted in the court if India until she is there in India.

The moment she becomes major it would be her decision to decide her welwisher.

Sanjay Baniwal
Advocate, South Delhi
4894 Answers
11 Consultations

5.0 on 5.0

Since your child is now a US citizen, there is no possibility for child custody to be given to him.

But the Indian court has to be informed about the child's citizenship status legally.

For that you have to participate in at least child custody case either in person or through your power of attorney agent and produce the documentary proof of her US citizenship.

He may trying to torture by filing this child custody case.

You can wait and watch the development, if at all he files child custody case, then you can engage the services of a lawyer in the local and also arrange to give POA to someone closely related to you and represent you during your absence.

Le the court record that the child is not an Indian citizen, which will stop the court from passing exparte decree on this case

T Kalaiselvan
Advocate, Vellore
56549 Answers
695 Consultations

5.0 on 5.0

Exparte divorce may be granted after the failure of the other party to appear and answer the claim. However, the child custody shall not be granted and it has to be applied before the court where the child resides.

Rajaganapathy Ganesan
Advocate, Chennai
1510 Answers
8 Consultations

4.9 on 5.0

1. You can negotiate with your husband to jointly file a mutual consent divorce petition on agreed terms allowing you the sole custody of your daughter, which will be disposed of within 6 & 1/2 months from the date of its filing.

2. If he agrees with your above term, you can get the MCD petition sent to you at USA and sign and notarise the same before the appropriate officer of the local Indian Consulate for returning to him for filing before the Indian Court.

3. You shall have to appear only once before the said Court after 6 months during the 2nd motion to confirm that you still want the divorce.

4. I shall not consider it prudent on your part to allow any case proceed ex-parte including divorce and child custody case.

5. Since you are a Citizen of the USA, you can file a divorce suit before the USA Court and also file an application for child custody for her welfare which you are likely to get.

6. As per the Apex Court Judgement, a child having American Citizenship can not be kept away from his/her Country and also from his/her father/mother staying in that Country being its citizen.

Krishna Kishore Ganguly
Advocate, Kolkata
22506 Answers
594 Consultations

5.0 on 5.0

You can file for divorce in USA also.you can file custody also in USA. If USA court grants you custody that order is valid.

Prashant Nayak
Advocate, Mumbai
12732 Answers
22 Consultations

4.6 on 5.0

Hi

Why allow exparte Divorce instead without coming to India you both can file mutual Consent Divorce? Speak to him that Indian Courts allow you to appear through skype and all the documents you need to submit needs to be prepared and officially signed at the embassy in US or notarized at US.

Infact when you going through mutual consent Divorce you can clearly put your terms of custody of child with you in the Consent Terms and that will give a clear picture of Divorce without ambiguity.

Grishma Lad
Advocate, Mumbai
18 Answers

4.0 on 5.0

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