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Lower courts can’t judge child custody battle for NRIs,rules High Court

Setting a precedent for custody battles fought by couples living abroad,the Delhi High Court has ruled that a court in Delhi had no jurisdiction to entertain any such petition.

Written by Utkarsh Anand | New Delhi |
March 10, 2010 1:05:18 am

Setting a precedent for custody battles fought by couples living abroad,the Delhi High Court has ruled that a court in Delhi had no jurisdiction to entertain any such petition.

“Where the parties are citizens of a country,and the child born to them is also a citizen of that country,the jurisdiction of that court cannot be taken away just by removing the child to another country and expressing a desire that the spouse wants to live in another country,” Justice S N Dhingra observed.

Passing a verdict that could affect several cases where the child was brought to India by either of the parents and the custody petition was filed in a local court,Justice Dhingra said in the recent order that a unilateral decision by a parent would not create a jurisdiction in India.

“If this is allowed,then any of the two parents who had problem with the other spouse would come on holiday to India with the child,give a notice that henceforth he or she has decided to live in India,and deprive the other spouse of custody and other rights over the child just by removing him or her to India,” the court ruled.

“… I consider such a proposition to invoke jurisdiction would be contrary to the basic principles of private international law.”

The court’s ruling came while hearing an appeal in a custody battle between a US-based couple,who got married in 1996 and settled in the US. In 2001,Sunil and Shweta (names changed) had a son and the couple subsequently acquired US citizenship in 2004. They also obtained social security numbers.

But following marital discord,Shweta came to Delhi in June 2008 with their child and decided against returning to her “abusive” husband. In Delhi,she filed a custody petition before a city court to get the child’s custody. Sunil,on the other hand,filed a child custody petition in the Superior Court of California in August 2008.

A confounding situation arose when the Californian court passed an interim order,granting custody of the child to Sunil,while the Delhi court passed the same order in favour of Shweta. The Delhi court also dismissed Sunil’s plea that it had no jurisdiction to try the case.

Sunil then moved the Delhi High Court against the lower court order. The High Court restrained the city court from trying the case because it had no jurisdiction. Justice Dhingra also observed that similar cases are pending in various courts in India. He said lower courts should follow the Supreme Court’s ruling that says the future residence or future plans of a parent can not rob the right of the original court of jurisdiction.

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