• Single parent wanting to move abroad

I'm a muslim divorced woman and have a 3.5 yr old daughter. Marriage and divorce was not registered and done through Sharia Law. My ex husband and I have signed an MOU that specifies maintenance amount and visitation rights. It also lists me as the legal guardian of my daughter. 
Now i've got a job offer from a company abroad and want to take my daughter with me. 
Since the MOU signed by both of us mentions me as the legal guardian, am i well within my rights to move or will there be any issues.
Asked 2 years ago in Family Law
Religion: Muslim

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17 Answers

You need biological father co sent to take child abroad as he had been awarded visitation rights 

 

2) if he refuses to grant permission approach family court and seek court permission to take child abroad 

Ajay Sethi
Advocate, Mumbai
94710 Answers
7529 Consultations

5.0 on 5.0

If he fight for case then he have to pay maintenance. 

If he wont fight for case then it will be easy to get order. 

 

Ankur Goel
Advocate, Bangalore
454 Answers

4.9 on 5.0

You need  a valid decree of divorce from Court and after that you should be declared as legal guardian by Court of  competent jurisdiction, that is Family Court. A mou signed between wife and husband is not a legal document for visa and permission to take daughter abroad.

Ravi Shinde
Advocate, Hyderabad
4042 Answers
42 Consultations

5.0 on 5.0

Even though your ex-spouse agreed you to be the legal guardian to the minor child, he has not relinquished his rights over the child and has retained the rights for periodical visitation to visit and meet the child.

Therefore you cannot claim it as your  right to take the child abroad with an intention to settle down there itself without the permission or the consent of the biological father.

The MOU do not authorise you to take the child abroad at your will and wish.

If he objects and files a injunction suit restraining you from taking the child abroad, then the court may consider his prayer to grant an order of injunction against you considering the legal facts and the law involved in it. 

You can obtain his permission to take the child abroad.

 

T Kalaiselvan
Advocate, Vellore
84911 Answers
2194 Consultations

5.0 on 5.0

The court will go by law which says that he being the biological father, has equal rights over the child, hence taking the child abroad with an intention to settle down there permanently, may not be allowed.

He may strongly object to your desire and request  and get your case dismissed besides obtaining a restrain order against you.

T Kalaiselvan
Advocate, Vellore
84911 Answers
2194 Consultations

5.0 on 5.0

Even though your marriage was not registered under the provisions of special marriage act, since you have proof for marriage, i.e., Nikahnama, you can establish your marriage with him and can seek divorce from under the provisions of section 2 of the Dissolution of Muslim marriage act. 

You can attach the documents to show that your marriage with him was already dissolved as per Shariat Law hence hence  canot object to the divorce decree you are seeking from court of law because he is a party to the divorce as per Shariat law. 

T Kalaiselvan
Advocate, Vellore
84911 Answers
2194 Consultations

5.0 on 5.0

You can file new divorce case along with child custody. MoU can be considered. You both can choose Mutual Divorce also. 

Registration is not mandatory for divorce decree. 

Ankur Goel
Advocate, Bangalore
454 Answers

4.9 on 5.0

1. Since the divorce is not registered, therefore, you have to obtain a legal divorce decree from Court,

2. you can file a declaration suit to declare the divorce on the basis of MOU,

3. without permission of the biological father of the daughter, you cannot take her with you,

4. try to settle the matter amicably by contacting your ex-husband involving friends, relatives, etc

5. you can file a case in concerned court on the basis of MOU to obtain a legal divorce,

6. if your husband object to the same, it will take a longer time.

7. the court can declare the marriage as dissolved even if it was not registered 

 

Suneel Moudgil
Advocate, Panipat
2381 Answers
6 Consultations

4.8 on 5.0

You should get permission from court to take child abroad 

 

even if you are legal guardian you would need court permission as husband has been granted visitation rights 

Ajay Sethi
Advocate, Mumbai
94710 Answers
7529 Consultations

5.0 on 5.0

Obtaining divorce decree on basis of MOU may be long drawn affair 

 

court can grant divorce decree on basis of your settlement 

Ajay Sethi
Advocate, Mumbai
94710 Answers
7529 Consultations

5.0 on 5.0

Registration of marriage is not necessary for seeking divorce from Court. As you are Muslims, he can give give  Talaq-Ahsan as Talq-ul-Biddat (triple Talaq) is banned by Muslim Women (Protection Of Rights On Marriage)  2019. He needs to make a single pronouncement of Talaq during Tuhr (period of purity). After single pronouncement wife has to observe three iddat, subsequent  to which  Talaq becomes final.

  1. He have to visit Kazi of local Masjid with two male adult Muslim witnesses.
  2. Produce id proof of all witnesses wife and husband.
  3. Produce Nikahnama and photographs of all.
  4. Kazi will issue notice of Talaq to wife.
  5. Talaq will become final after three Tuhrs.

You can also pronounce Khula on him.

After that approach family Court with certificate of  divorce  issued by Kazi/Waqf Board and seek approval of  Court by filing suit for declaration. In the also seek appointment of you as guardian of child. That whole process will take six months if both cooperate. Divorce by MOU is not valid and acceptable for visa. 

Ravi Shinde
Advocate, Hyderabad
4042 Answers
42 Consultations

5.0 on 5.0

Apply for court permission to take child abroad as you have got job abroad and need to take your daughter with you 

Ajay Sethi
Advocate, Mumbai
94710 Answers
7529 Consultations

5.0 on 5.0

Dear Client,

Since the custody is given to you, you can move abroad with your child with or without consent from the husband. he can file for vitiation hours in the court. if your husband is not okay with you moving to abroad with your child, then file a petition in the court for permission. if you have sole guardian ship and custody of the minor child, then you can move to the abroad. 

Anik Miu
Advocate, Bangalore
8869 Answers
110 Consultations

4.7 on 5.0

only if both the parties are mutually aggreging then only can pray for divorce

Prashant Nayak
Advocate, Mumbai
31946 Answers
179 Consultations

4.1 on 5.0

- If you are going to any Middle east country , then legally this Talaqnama & declaration for custody of child is valid , however if you are going to any other country , then neither this Talaqname & other documents are valid for the same , in the absence of a court order

- Hence, you have to obtained a Divorce decree & custody order for going abroad with the daughter .  

-  You can file a petition for divorce before the Family court , and if after receiving the summon of the case ,he will not appeared before the court , then court may pass ex-parte decree in your favour. 

Mohammed Shahzad
Advocate, Delhi
13214 Answers
198 Consultations

5.0 on 5.0

You were advised that you can take the child with you to abroad only with the permission or consent of the biological father.

The court will go by law which says that he being the biological father, has equal rights over the child, hence taking the child abroad with an intention to settle down there permanently, may not be allowed.

He may strongly object to your desire and request  and get your case dismissed besides obtaining a restrain order against you.

T Kalaiselvan
Advocate, Vellore
84911 Answers
2194 Consultations

5.0 on 5.0

You are in catch 22 situation.

He will not allow you to go out so easily. 

He have visitation rights and he is paying maintenance as well. 

You have to fight only for this. 

 

Note - The advice is being given on the basis of the facts given by you, absolutely free of cost irrespective of any charges paid by you to website .

Ankur Goel
Advocate, Bangalore
454 Answers

4.9 on 5.0

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