Child Custody issues for NRIs

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Many a times NRI marriages go sour. In a significant number of cases, the children are foreign citizens, by virtue of being born in the foreign country, even while the parents are Indian citizens and holders of Indian Passports. In such cases, often one parent brings the kid to India, while the other initiates legal proceedings in the foreign country.

Today, in a landmark judgement by the Supreme Court, it said that Indian court can't settle NRI custody dispute.

NEW DELHI: Faced with the prospect of litigating a marital dispute or child custody case in foreign courts, NRI mothers mostly prefer to return home and seek legal protection from sympathetic domestic courts. Virtually closing the door on this practice, the Supreme Court has ruled that Indian courts cannot settle disputes of NRI couples pending in foreign courts. So, a four-and-a-half year old girl will now have to travel back to the UK with her NRI mother to appear before the country's High Court of Justice, Family Division, which had on November 26 last year directed the child to be returned to its jurisdiction to decide a custody dispute raised by the girl's father, Aviral Mittal.

Aviral, who has been working in the UK since November 2000, married Shilpa on November 4, 2003. A girl was born to them on February 20, 2006 in the UK. She acquired British citizenship despite her parents continuing to hold Indian passports. When the marriage turned sour, Shilpa returned to India on September 12, 2008. Aviral then moved court in the UK, pleading that the child be made a ward of the court. The court, on November 26, 2008, directed Shilpa to return the child to the UK court's jurisdiction. Aviral's father, through counsel P Jouhar, moved the Delhi High Court on December 4 seeking custody of his granddaughter. After a failed mediation attempt, the HC on August 7 this year directed Shilpa to take the child back to UK and join proceedings before the courts there within 14 days.

Shilpa challenged the order in the Supreme Court. Agreeing with the HC's ruling, an apex court bench comprising Justices Altamas Kabir and Cyriac Joseph said the UK HC had said nothing except insisting that the minor be returned to its jurisdiction for a decision on her right of custody.

``The decision has to be left to the British courts, keeping in mind the nationality of the child and the fact that both the parents had worked for gain in the UK and had also acquired permanent resident status there,'' the bench said, adding the British HC had not directed handing over of the child to the father.

It asked Shilpa to abide by the Delhi HC order but asked Aviral to submit a proposal about her travel plans and stay in the UK, at least for a month. Accordingly, he has submitted a plan saying Shilpa could stay at his three-bedroom house in Swindon, UK. If she was not willing to stay there, he agreed to pay for alternative accommodation and daily expenses. The case will come up for final hearing on December 15.