MUMBAI: A district court in Thane rejected a custody petition filed by a woman from Great Britain and found her plea to be untenable because she and her underage child are both British citizens and the child’s “habitual residence” is in that country. The court found it inappropriate to issue orders regarding custody of the child currently with the mother in India.
The child was born in the UK, where the couple lived for more than a decade. Last year a UK court granted the woman a divorce on her request.
The father is an Indian citizen on “permanent leave” to stay in the UK. Following the divorce decree, he had applied to a UK family court for custody of the child, while the mother had asked for permission to move the minor permanently to India. In January the British family court ordered that the father should continue to have “provisional contact” in the “child agreement”.
The woman came to India in June and filed custody in Thane in September. In October the UK court issued a “warning warrant” that if a “child’s arrangement” comes into effect, no one can remove the child from that country or give him a new surname without nodding.
The woman had already surrendered to the jurisdiction of the English court. The court observed that they removed the child from that country without the permission of the British court.
“It is nothing more than an abuse of the legal process,” District Judge PP Jadhav said in a decision on December 4th.
The Thane judge said, “It is up to the father to go to the appropriate court to enforce a family court order” in the UK.
The woman’s attorney, Mukul Taly, later said he would review the order made available on Dec. 8 to consider appealing as it concerns the welfare and well-being of a child.
The mother had moved to Thane Court to seek custody of the child, while the father, through his attorney Bhavana Jadhav, requested dismissal on the grounds that the Indian court had “no jurisdiction” over the custody battle in the UK family court is pending.
Taly believed that the court with territorial jurisdiction over the area where the child “ordinarily resides” has jurisdiction to hear custody proceedings under the Guardians and Wards Act of 1890 in India.
He said the Thane court is competent to issue interim orders to facilitate the mother’s custody and cannot simply dismiss it without conducting a detailed investigation into the child’s welfare, which is of the utmost importance.
Jadhav, the father’s lawyer, referred to the British court’s October ruling that leaving a child without permission could be a criminal offense. She said a plea of ​​custody in an Indian court was inadmissible.