You may file an application for modification of custody order due to changed circumstances and take the ground that the welfare of the child is being compromised with.

Regards

See there is nothing legal illegal in this you can file a fresh petition for child custody claiming custody of child  in ground that mother has left child with parents and she is not taking caring and it is necessary that custody should be given to you for welfare of child.

you can challenge the order for grant of custody based on the ground of change in circumstances. You shall have to adduce evidence to prove to the Court as to why the custody should be granted to mother. 

1. As per the information mentioned in the present query, make sit clear that the Hon’Bless Court has granted custody to her, but not to her parents.
2. As if this would have had been the case then father is equal libel for getting the custody, why it was given to mother, that is only for a reason that mother is first choice of custodian for a minor child.
3. I would advice you to file an application for the setting aside the order of custody or you can file a fresh suit for custody on the ground that now the situation has changed and the custody should be given to you being a biological father.
4. I am pretty sure that you would be able to convince the judge over the same and may get the full custody of the child as court of law would also be seeing for the bright future of the child.
5. In fact, now he can also be asked to intend his wish with whom he he wishes to live with.

You can make application for custody of your son as your wife the biological mother has gone abroad leaving the child in India 

In MCD case the consent terms signed by the parties would be binding. In the present condition you can file application for custody of child. Under guardianship act, interest of the child is the paramount consideration and age of the child is immaterial when certain circumstances exist to take right decision towards proper care of the child. Though it was agreed and decided one can always demand modifications in the said decree by filing necessary applications in the concerned court either mutually or by contesting so there is no bar and matter do not ends there.

So on the ground of change in circumstances file an application. The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.

1. No judgment passed by any court in child custody proceedings is final as welfare of child is supreme. Due to change in circumstances a fresh case of child custody can be filed.

2. The custody was given to mother, not maternal grand parents of child. Mother has now abandoned the child and relocated abroad. Hence, you are free to file a fresh petition for declaration of guardianship and child custody before the Guardianship Judge.

You can file for custody again on this ground. You may get the same

1. This is a good ground to claim custody of the child.

2. So irrespective of the terms of divorce, if any, for the sake of welfare of the child which requires at least presence of one parent in his daily life, you can claim his custody.

3. SO without any delay file a suit for custody of the child at the place where the child is presently residing.

Meet a good advocate.

Dear Client,

Mutual settlement not binding, you can file fresh application for custody of child in court. 

Dear Sir,

You can reopen the issue by filing child custody case in the Family Court and get your child to your permanent custody on the basis of following judgment.

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Landmark Judgement pronounced by SC dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes

In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases child should not treated as a "chattel". The court said that under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.

The Court said that there can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.

CHILD RIGHTS COMMISSION ACT 2006

http://www.kscpcr.com/eng_ver/actsandrules.php

The Karnataka State Commission for Protection of Child Rights (KSCPCR)

4TH FLOOR, KRISHI BHAVAN, RANI CHENAMMA CIRCLE

NRUPATHUNGA ROAD, BANGALORE-

Such Commissions are situated in Every State

.==============

Bombay High Court

Forum For Fairness In Education An ... vs Union Of India And 2 Ors on 2 May, 2016

Bench: A.S. Oka

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

PUBLIC INTEREST LITIGATION NO. 84 OF 2013

Forum for Fairness in Education An NGO,

 Vs

Union of India and Others.                  ..    Respondents            

5 Before we deal with the constitution of a State Commission, it will be necessary to make a reference to the functions and powers of the State Commission. Section 24 provides that the provisions of Sub-section (1) of Sections 13 and Sections 14 and 15 which are applicable to the National Commission are also applicable to a State Commission. Sub-section (1) of Section 13 of the said Act reads thus:

Dear Querist

this is legal and if you have any problem with your visitation rights then you may approached the family court.

or

if you think that it will not be beneficial for the welfare of the child then you may claim the child custody by filing child custody case before the family court.

Feel Free to Call

Dear Sir,

The following information may kindly be read:

Custody rights of Indian moms (and dads) after divorce

Recently, the Supreme Court had stayed an order of the Gujarat High Court asking a mother to take her eight-year-old son to the United Kingdom, because of a judicial order passed there in a custody battle initiated by her estranged husband. Divorce and custody battles can become a quagmire and the innocent child gets caught up in the legal and psychological warfare between both parents.

Under Indian law, maximum importance is given to the best interests of the child and so either parent does not have a clear primacy to be granted the custody of the child.

After the dissolution of a marriage, custody of a child can be given as:

Joint Physical Custody: A new concept that has evolved while negotiating divorce settlements. Both parents will have legal custody, but one will have the physical custody (child resides with him or her) and will be the child’s primary caretaker.

Sole Custody: One parent has been proven to be an abusive and unfit parent and the other parent is granted custody.

Third Party Custody: Neither of the biological parents are given custody of the child. Instead, the child custody is granted to a third person by the court.

The Guardians and Wards Act, 1890 is the universal law pertaining to issues involving child custody and guardianship in India, regardless of the child’s religion. However, under secular principles, India also sanctions laws pertaining to different religions.

Under secular law as well as Hindu law

• The mother usually gets custody of the minor child, under the age of five.
• Fathers get custody of older boys and mothers of older girls, but it is not a strict rule and is primarily decided based on the child’s interests.
• The choice of a child above the age of nine is considered.
• A mother who is proven to neglect or ill-treat the child is not given custody.

Helpful information

The thinking has shifted from custody and access being the ‘right of a parent’ to being the ‘right of a child’. The principle on which custody is decided is the ‘best interests of the child’. Therefore, the parent who can take better care of the child’s emotional, educational, social and medical needs is favoured.

The earning capacity of the parent does not determine custody, but the capacity to provide a safe and secure environment does. Even a mother who is a housewife can gain custody of the child and the father will be asked to provide child support.

The mother is the preferred custodial parent when the child is less than five years old. The opinion of a child who is over nine years old will be considered.

The non-custodial parent can get different types of access to the child based on circumstances and convenience. For example, court could grant weekly, fortnightly, daily or monthly visitation rights. It can be day or overnight access. It could also be free access with no fixed schedule, but as per the parents’ and the child’s convenience.

The parents can agree to a one-time amount or a staggered payment at different stages of the child’s educational life or a monthly payment with incremental increase. The child support should cover the child’s educational and nominal lifestyle expenses.

The court is parens patriae or the ultimate guardian of the child. So the child’s property is protected by law, and terms of custody, visitation and child support can be altered in changed circumstances in the interest of the child.

Other interesting rulings

A Supreme Court bench headed by Justice Vikramjit Sen had ruled that an unwed mother does not have to take consent from the biological father of the child, or reveal his identity for sole guardianship of the child.

The Delhi High Court has ruled that using the mother’s name is sufficient for a child to apply for a passport when the child is being brought up by a single mother without any involvement from the father.

If the child is not under the care and custody of the biological mother and if you have documentary evidences to prove that she has left the country and the child behind while leaving for abroad, you may, as a biological father, can seek child custody by reopening the divorce case in which the custody was given to mother.

There is nothing wrong in approaching court for this, let the court decide the fate.