Your husband has been granted visitation rights for the child
2) under provisions of Hindu adoption and maintenance act you need biological father consent to give child in adoption
3) without NOC from father child cannot be given in adoption
Unable to get NOC from biological father
I got divorced in 2015 and have full custody of my 5years old daughter however my ex husband has visitation rights. i want to apply forPR for canada or australia. also, im planning to get remarried. my future husband cannot adopt my child without noc from biological father and also for pr i cannot apply without noc. is there any way that i can proceed without having noc. i am really not able to understand the law here, when you have custody still you cannot take decision without biological parent's consent who does not contribute anything for the well being of child. there should be some clause to it just being biological parent and doing nothing for the child should not bound the single parent whose having custody of the child in take decisions solely for the betterment of the child and the single parent is the one who is doing everything for that child. with this noc issue, single parent is like still not free from the past and cannot freely move on in life as without NOC I cannot secure my daughter's right with my future husband. also Im taking complete responsibility of the child bearing all expenses and when need to move on in life cannot get the adoption one for my child if I dont get NOC, as law says need NOC from that father who does nothing for the child just because he is bological parent. After getting over one trouble of being divorced if Biological father doesnot give NOC, you are helpless because its on mood of your ex spouse that they dont want you to live your life peacefully. If there is any alternate of NOC, please suggest. any help on this matter would be highly appreciated.
Asked 7 years ago in Family Law
Religion: Hindu
7 Answers
1. You shall have to understand it primarily that you have been allowed custody of your daughter only till she attains adulthood and that you have not been declared as the sole owner of your daughter.
2. You shall have also to understand that your ex-husband is father and is entitled to claim her custody after she crosses 5 years of age.
3. It is to note that custody is awarded by the Court keeping child's welfare as paramount interest in mind.
4. Awarding you her custody, the court has not disallowed the right of her biological father in any way and has not given you any special right to solely take vital decision about your daughter with out the consent of her biological father including the decision of taking her out of the Country.
5. Your future husband will be your husband and not the father of your daughter who already has her biological father who had fought for her custody with you but lost since mother is considered as natural guardian for a child up to 5 years of age and girls custody is awarded ordinarily to mother for obvious reason.
6. There is no provision of law which will enable you to take your minor daughter abroad without the consent of her father and also to allow her to be adopted by your future husband without the written consent of her father.
1.Yes step father can not adopt step child without consent of biological father of the child.The custody of child has nothing to so with this.
2.While applying for new passport or PR you will again require consent of your ex -husbnad. This is the law and you can not change it.
3.There is alternative to NOC and the same is permission of court. The court can grant necessary permission of the biological father is found to be illogically withholding any consent which is good for welfare of the child,
If NOC is essential, you may make a written representation to your husband about this and would ask him to give the same on any terms that be feasible to both as well as practical.
If he is not cooperating or responding then you may issue a legal notice to him to comply with the demands made failing which you may aproach court to declare the same.
Grant of custody to one parent by the court to the exclusion of the other parent does not terminate the legal and biological relationship between the child and latter. Your ex-husband continues to be the father of your child for all legal and practical reasons. Hence, you require NOC from him. If, however, he does not give NOC to you to apply for PR of your child then you may file a suit for mandatory injunction against your husband. This is the utmost that you can do.
No, there is no alternate, without NOC from her biological father neither PR nor the adoption proceedings will be completed.
It should be mentioned in your divorce petition(Which may be filed by both the parties by way of Mutual Consent) regarding the NOC for the welfare of child.
Now the senerio is completely depend on the mood of your ex-husband.
try to contact him and get NOC Politely.
I had gone through your query couple of days ago but I didn't have any law in my mind which could help you. However I was reading a judgment of Delhi High Court and found that that situation somehow is similar to your case. I am giving the following link . You can pursue the judgment and see yourself whether it fits your case justification.
