You can file for divorce in India as marriage is solemnised in India
2) seek sole custody of your kids
3) welfare of children is paramount consideration
4) even if your son is IS citizen you can seek child custody in India
Child custody of US born citizen
Hello Sir, I have been living in USA from past 7 years. Now I am working on dependent visa (H4 EAD). I am working here in USA from past 1 year. I have a 8 yr old daughter(India born) and a 3 yr old son (US born citizen). I am suffering in an abusive relationship. My husband is very short tempered. He always verbal abuse me in front of my kids. I have been suffering from the beginning of my marriage. We both were separated for one year from 2018 to 2019. After many promises by husband, I returned to US. I trusted him but he never changed. From past one year, I am suffering a lot. He forced me take few personal loans in my name. He uses my credit card and made a bill for $20,000. Last year I wanted to visit India but he didn't allow me to go. As my father in India has health issues now, My husband gave me permission to visit India with my kids in March. I will be travelling to India alone with my kids in March. But I don't want to return to US. My plan is to stay back in India. I want to apply for divorce. I want both of my kids. Can I file child custody for my 3 year old son son from India? Is it possible to get full child custody of my son who is a US citizen. I am afraid that my husband will file a case on my in US as I abandoned with kids. Pls advice how to proceed legally from India.
Asked 4 months ago in Family Law
Religion: Hindu
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9 Answers
If it is intolerable anymore then you can file the divorce case in India after you return to India.
Since the children are with you there won't be a necessity to file a child custody case in India. However, if you would like to file one, you can go ahead to file the child custody along with the divorce case.
The US born child also can be given in custody to the Indian mother by an Indian court.
- You can file a complaint under the provision of DV Act against him before the family court in India and thereby can seek maintenance and residential right for yourself and children , even you are a working lady.
- Further , if you don't want to live with him , then you can take his consent for mutual divorce in India as well as In USA on the condition of payment of alimony
- Further , if he not agree for the same, then you can file a contested divorce petition on the ground of cruelty and therein also seek alimony
- Further, under Hindu law, A mother usually gets custody of the minor child, under the age of five and fathers get custody of older boys, but it is not a strict rule and is primarily decided based on the child’s interests.
- Hence, there is much chances to get the custody of both the children for you
- Further , if your husband files any case in US , then the decree passed by the US Court in your absence will not valid in India.
You can contact me , if further suggestion needed.
Though your son is U.S. citizen, the law that is applicable is Indian law that is Hindu Minority and Maintenance Act, under the said law you will have custody of son till he reaches age of five years. Child custody and family laws are different in each State, you have not stated the State of your residence.
You can file divorce and all other cases civil and criminal—if any offences are committed against you under Indian law in India. You are entitled for full custody of your daughter. If the State is known clear advice can be given.
Though your son is Canadian citizen, the law that is applicable is Indian law that is Hindu Minority and Maintenance Act, under the said law you will have custody of son till he reaches age of five years. Under Canadian law, the spouse who has care and control of child will have custody of the child till the court orders otherwise.
You can file divorce and all other cases civil and criminal—if any offences are committed against you under Indian law in India. You are entitled for full custody of your daughter. If the State is known clear advice can be given.
If you both were married and your was registered in India, you may initiate divorce proceedings against your husband here in consultation with a competent lawyer at the jurisdictional court. If your husband evades summons or never attends court proceedings, he may be set ex parte and divorce granted. As you anticipate, getting full custody of your three-year old son who is an American citizen by birth may pose difficulties.
You can file custody case and divorce case in India. The court within whose jurisdiction children are residing at the time of filing of petition for custody have jurisdiction so you can file custody case in India also. For divorce case, as your marriage took place in India hence Indian court too have jurisdiction to decide divorce case. You can also claim maintenance, residence etc. Consult a competent lawyer and act under his guidance.
Hello Madam
I have gone through the contents of your email posted herein on Kaanoon.com. it is advice you accordingly as under:-
1. Firstly, you can visit india without any interruption and hazitation, your husband have not business to restrain you from any of the corner to travelling to India.
2. Secondly, you can file divorce proceeding in india, though you have not mention whether you have got solemnised your marriage in accordance with Hindu reties and Customs. Nevertheless, You can file it here in india.
3. Thirdly, You have absolutely custody right for your children as you have mentioned that they are below the age of 8 years. In india Custody of child can be file under section 25 of ward and Guardianship act.
4. Fourthly, if your husband continuously harassed and torture you physically, mentally, emotionally then you can also filed case under Section 12 of Prevention of Women from Domestic Violation act, 2005. The Court in india definitely will restrain your husband not to repeat domestic Violation against you in any manner.
Further, i would like to advice, you that if the marriage is not works properly, it is better to part way by both the way, either you both take counselling to continue the said marriage or take mutual divorce, the reason being for the sake of small kids and their bright future, it is better to live together. if it is not possible then go for divorce.
If any advice you require for detail discussion, kindly book consultation accordingly will advice you.
Regards
G.L.Soni
Advocate
Dear client,
The Hague Convention on the Civil Aspects of International Child Abduction is frequently applicable in matters involving international child custody. But it's crucial to speak with a lawyer with experience in both American and Indian legal systems and a focus on family law. In India, religiously-based personal laws usually regulate custody disputes. When deciding custody, the Guardian and Wards Act of 1890 also applies. It is essential that you speak with an Indian lawyer to comprehend the particular laws and procedures that apply to your situation. Keep records of any financial transactions, abuse evidence, and your husband's approval to go, as these could be important information in future court cases.
Hope this helps you.
Hello,
You, Yourself being an Indian Citizen can comfortably file a divorce case against your husband from India, in case the marriage was solmnized under the prevailaing laws in India.
As per prevalent laws in India 3 year old US born son is a citizen of both US (due to birth) and India (due to Indian Citizenship of Parents). That further you should know that as per Indian gurardianship laws mother is the entitled to custody of child till he turns 5 years of age, hence you are entitled to his custody and can file a suit in relation to the same from India. as far as daughter is concerned you can also file case for her custody in India in consonance of Indian Laws.
