Can Indian courts can decide the Child custody of a Foreign National child

The Supreme court of India has decided in Arathi Bandi case that Indian court should not interfere or set-aside the foreign court decree on the on the ground that USA law was inconsistent with Indian Law. In a peculiar case where husband and wife acquired USA citizenship and married in USA according to Hindu rites and customs. And they also obtained divorce according to US laws in US Courts. Husband has obtained child custody in US courts. On arriving India the Indian police took the child from the father and handed over to the mother. Supreme court strictly ask the mother to return the child and to obey the US court order.

Indian courts now settled the proposition of law in child custody as (i) A parent doing wrong by removing children out of the country does not gain any advantage by his or her wrongdoing.

(ii) Contention that the American court, which passed the order/decree has no jurisdiction and being inconsistent in Indian Laws can not be executed in India - Contention not tenable.

(iii) Husband to make necessary travel arrangements for stay of wife and child according to her status prior to dissolution marriage.

In the custody of child Welfare of child is to be the paramount consideration - Even if at an earlier stage by way of summary proceedings under the Act custody was given to one of the spouses by the court but at the time of subsequent proceedings for permanent custody of the child, the child was in the custody of the other spouse against the orders of the summary court, the family court will proceed as if the child was in legal and proper custody and whether in taking away the child from such custody will be in favour of happiness and welfare of the child - Removal of the child from its native land to another country where his native language is not spoken, child being divorced from the social customs and contacts to which he has been accustomed, interruption in his education are some acts which could psychologically disturb the child.

Author K.P.Satish Kumar M.L. Advocate Madras High Court

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