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
Team Daniel & Daniel
Helpline: 9962999008
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