Last Updated on June 15, 2024 by Satish Mishra
Custody generally means to take the person into your own authority or under your consideration. Custody is always taken of a person generally living person. Custody of NRI child in a case means: A husband and wife when have filed a petition for divorce and have a child from that marriage then with whom the child will stay is the main agenda of these kinds of cases.
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NRI generally means “Non resident of India”. Those couples which are married and settled outside of India are NRI’s as they have the citizenship of some other country where they have settled and have gained the PR ie permanent residence of that country. So as per the Indian context and Indian judiciary the case is instituted to a place near to the residence so the case regarding the custody of the child in NRI case will be registered into the nearest family court of the country.
The main element of this custody is that in foreign countries the custody of child is taken in those situations where a child is minor ie generaly below the age of minority which in India is eighteen years old for girl and for boy it is twenty one years old.
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These age of minority and majority are recognised by many acts as in Specific Child Relief Act, Hindu Guardianship Act, Hindu Succession Act, all of these acts defines the age of the child on different aspects and different ages, likewise in abroad the age of majority for both the boy and girl is 18 years which is regulated by various acts as well.
Taking in consideration of a majority in Malaysia is 18 years old and it is regulated with Age of Majority Act 1971, the bill of age of majority. The bill was introduced into the Malaysian system in 1971 only and it passed and came into effect in April 1971 only. Similarly other nations have their acts and regulatory authorities which decide and define the age of majority of a child.
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The custody of a child in NRI case deals with family disputes and resolutions act under which the concept of custody is taken into consideration. In a matrimonial case where the husband and the wife are to apart from each other having a child from their marriage then it depends upon few essential decisions mainly:-
Þ Age of child
Þ Dependability of the child (mental situation)
Þ Decision of the child of its own
These factors influence the custody of child into the NRI case. Any non-resident of India when file the petition of divorce and the case has been instituted into the proper jurisdictional court then the custody of child is taken into the consideration by the respective court under which the case has been instituted. Talking about custody of child then the first element is the age of child, is the child is so minor that cannot take decision on its own the custody will go to either mother or the father who fits best to guide and train the child for the future refrences and for a good life.
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Secondly it depends upon the dependability of the child or it can be said as the mental ability of the child ie if a child is born with certain disabilities or is specially abled then such a situation either the petition of the divorce can be rejected (happens only in certain cases) either the custody of the child can go with the mother as it is considered that a mother can bear all the pains to make her child well and good enough to take decisions on its own. Then whole of the life of the child will be continued with the mother as she’ll be the mentor of the child for good being of the child.
Thirdly if the child is born proper without any special abilities and is able or mature enough to take decisions of his own then it will depend upon his choice that with whom he would like to stay with mother or with father. The case as early as possible should be filed into the nearest jurisdiction but if any other member to suit wants to have justice from their birth country can too have justice with same requirements and so the case will be continued with the Indian jurisdiction.
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Delhi High Court Surjeet Singh vs State & Another on 27 April, 2012 made a judgment on the basis of bad conduct of the father which would make a bad impact on the upbringing of the child. The case was further appealed in the Supreme Court which stated that:
“The Supreme Court took note of the fact that keeping in view the welfare and happiness of the child and in his best interests, the parties had obtained a series of consent orders concerning his custody/parenting rights, maintenance etc from the competent court of jurisdiction in USA. The court also found that there was nothing on record which may even remotely suggest that it would be harmful to the child to be returned to USA. However, in the present case, the children have not been brought to India in violation of any order passed by a court at New Zealand. The children came to India with their parents and with the consent of both of them. No order with respect to the custody of the children was passed by the Court at New Zealand with the consent of the parties. In the case of V. Ravi Chandran (supra), there was nothing to even remotely suggest that it would be harmful to the child to be returned to USA.
With the increasing number of disputes amongst couple related to child custody, Ministry of foreign affairs are flooded with information on daily basis. Currently, India doesn’t have any treaty with other states or a formal law to bring back the child from a foreign land. Thus, depriving the Indian residents from meeting the child again in his life.
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The best resort could be cancelling of the passports and serving a look out notice through consultancy on the defaulter. Divorce matters coupled with child custody matters are sensitive and deserves special care and attention. Right advice just at the right stage would serve the purpose.
Hope this post heals and informs.
For any specific advice related to NRI Divorce, Child Custody issues, Maintenance, how to bring back the child from abroad, please dial 99888-17966 for LegalSeva.
This post is written by Gauri Singh, Student of BBA LLB Chanderprabhu Jain College of Higher Studies & School of Law.
