• NRI child custody

I'm an India national currently reside in the UK along with my wife and 7-year old daughter who are Indian nationals too. We are all residents in the UK. Our permanent home is in Noida. I have currently filed a divorce petition in the UK (yet to be served). My question is related to the child custody.

If my wife decide to leave UK after the petition has been served. Can she seek legal help in the India to forcibly repatriate my daughter from the UK? To note, my wife is currently unemployed. Our daughter study in the UK.

Also, in which place my wife legally allowed to file a petition? Our permanent home is in Noida where we last lived. Marriage was solemnised in Assam. Her parents live in West Bengal (where they moved after our marriage).
Asked 4 years ago in Family Law
Religion: Hindu

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20 Answers

Hello,

Since the daughter is 7 now, the court can not forcefully ask the daughter to come back to India.

She can file petition at her place of residence or at the place where you two last resided in india. Indian court can not do much in this case.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Welfare of the child is of paramount importance for the Indian courts to decide the custody of the child.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Second file petition in Assam or Noida as per her wish the custody suit is normally decided by the court considering the actual position and testimony of the child in this regard as the father is natural guardian of child aged more than 5 years and can be given in his custody considering the future of the child but the emotional factor will also be considered after taking the view of the child that's where he wants to go

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

1. Yes, she can file custody suit in India and the Indian court would be competent to pass necessary order as child is Indian national only and his ordinary place of residence is still in India.

2. Anyway you can defend such suit on merit and take necessary steps.

3. The last place of residence of the child is the suitable place for filing such custody suit.

4. Do not worry as if you contest the suit properly then your wife though can get visitation rights of the child is not likely to get his permanent custody. However do note that wish of the child to choose between his parents is important factor which the court gives due consideration.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Dear Concerned,

FIRST thing you need to do is take your Daughter's passport from your home / wife and keep it away - ie at your work place or a safe place, so that you wife can not bring your daughter to India.

As you were married in India and your wife can very much file cases in India except Guardianship. Also note you may be scared with multiple views but note - If cases are filed in India - nothing can harm you till you are in UK. Other wise too when you re in India gone are the days when MEN were pulled down by wives in false cases. Now that's not the case.

HOWEVER harassment of men due to false cases, running around in courts etc remains the same. So better is to get the Divorce completed in UK and if she is present in the Divorce proceedings nothing beats that. As your ex parte will not be valid in India - however if she attends it will be valid.

Whatever case she files she can either file in Noida or in Assam or even in WB (jurisdiction in WB can be challenged later) as her parents stay their now.....

Best of luck.

Atulay Nehra
Advocate, Noida
1282 Answers
58 Consultations

5.0 on 5.0

In divorce petition seek custody of your daughter

2) seek orders restraining wife from taking child to India or any other country

3) wife can file petition in India for RCR or divorce where marriage was solemnised or where you stayed after marriage

4) she can seek custody of daughter

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

Hello

You both are a resident of UK but a citizen of India. Your wife can accept the terms of the UK court and thus do what it says or can go back to India file a separate suit for custody and maintenance and alimony and divorce which is legal. She can file a case in all the 3 aforementioned places.

Regards

Rahul Mishra
Advocate, Lucknow
13755 Answers
65 Consultations

5.0 on 5.0

Yes she can file case on you criminal cases of domestic violence dowry harassment, as well can ask for the custody of the daughter in India.

Yes she is allowed as she is Indian citizen and you are too the Indian court have jurisdiction over you.

Further the marriage solemnised in India, the Indian court shall be proper forum to ask divorce otherwise the case shall be the divorce by UK court shall not be valid in India.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Your wife can file a petition seeking custody of a child in Noida, Assam or UK, wherever the pleases, but as the age of a child is more than 5 years, the custody would normally go to the father.

Also, courts generally do not disturb the surroundings of the child and the wishes of the child would also be considered while granting custody to parent. So, chances are very slim that the court would bring the child from the UK to India, unless some Grave evidence is produced before Court against you.

Siddharth Jain
Advocate, New Delhi
5925 Answers
101 Consultations

5.0 on 5.0

Hi,

The petition can be filed at place where last resided together, where marriage took place. In regard to child custody, the court may pass any order keeping in mind the welfare of the child only. You need to prove that the child can be looked after well in your custody.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Recently In Hyderabad, NRI man wins custody battle, Hyderabad HC tells woman to send children back to London for education.

Mohammed Mujeeb
Advocate, Hyderabad
19029 Answers
32 Consultations

4.5 on 5.0

1. Since the wife and child are citizens of India the courts in India have the jurisdiction to hear and decide the petition for child custody.

2. However, unless it is shown that child has been residing in India immediately prior to the filing of the petition the court of Guardianship JIUudge cannot try the guardianship petition. The only remedy for your wife is to file a petition for issue of writ of habeas corpus in the jurisdictional High Court to seek the custody of her daughter.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

Your wife can file a petition seeking repatriation of your child to India in the child custody case but the process is very lengthy and arduous.

She can file a petition in the place of her current residence.

For child custody it wont make any difference wherever she may file because the child is not in India, hence it will be a very hard time for her to cope up with the child custody case if the child is residing in UK.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

Petition may be filed at WB or Noida....Thereafter the process of repatriation of daughter can be started.

Raj Kumar Mishra
Advocate, Allahabad
165 Answers
2 Consultations

4.5 on 5.0

Since you ha e filed for divorce in UK make application for custody of child in UK only

2) since child is staying in UK only advisable to apply for custody of child in Uk only

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

1. Yes, you can file such in India.

2. If you are in India then you can file such in India. If the child is not in India then you can not file such suit.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

If the child is living at abroad then the child custody petition may not be entertained by an Indian court in India.

No preemptive measure would be maintainable.

You can try for child custody through UK court itself.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

Since the case of divorce is contested before the court in UK it would advisable to file for custody in UK only as there is no litigation so far in India,

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Hello

You can file for custody of child in India if she refuses tibacceptvthe jurisdiction of the UK courts.

The court looks favourably upon women everywhere. That is the real problem.

Regards

Rahul Mishra
Advocate, Lucknow
13755 Answers
65 Consultations

5.0 on 5.0

Yes you can file the same in India, rather child custody case can only be filed at the place where the child is residing and not any where else

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

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