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 Team Daniel & Daniel Helpline: 9962999008

Guidelines for Mental cruelty for Divorce

Authour : Advocate K.P.Satish Kumar M.L. Madras High Court. Leading Divorce Lawyer in Chennai. After the solemnization of the marriage when any of the spouse either the husband or the wife is treated with cruelty, they are eligible for divorce. Section 13 (i) (a) of the Hindu marriage has not defined the term cruelty. But the courts has interpreted that cruelty falls under Physical and mental cruelty. And the cruelty may be intentional or unintentional. If it is physical, the court will have no problem to determine it . It is a question of fact and degree . If it is mental, the problem presents difficulty. The Supreme court at various circumstances has summed up the situations which are fall under mental cruelty. The expression 'cruelty' has an inseparable nexus with human conduct or human behaviour . It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status. The conception of legal cruelty undergoes changes according to the changes and advancement of social concept and standards of living. To establish legal cruelty, it is not necessary that physical violence should be used. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. Each case may be different. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Mental Cruelty in Section 13(1)(ia) of Hindu Marriage Act can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. What is cruelty in one case may not amount to cruelty in the other case :- How to fix Mental cruelty. 1.The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious belief, human values and their value system. 2.Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. 3.Question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status and environment in which they live. Guidelines for Mental cruelty : 1.Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. It may be words, gestures or by mere silence, violent or non-violent 2. Cruelty should be wilful unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such danger. 3. Proof beyond doubt, as in criminal trials is not required to prove cruelty. 4.In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence - For proof of mental cruelty Court has to find out nature of cruel treatment, impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. 5.There may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal - Then the impact or injurious effect on the other spouse need not be enquired into or considered. 6.Whether the conduct of a spouse amounted to cruelty has to be considered in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. 7.Mere trivial irritations, quarrels between spouses, which happen in day- to-day married life, may also not amount to cruelty. 8.The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. Circumstances to Mental cruelty :- 1. Wife publishing a notice in newspaper that her husband was womaniser, drunkard and a man of bad habits. It was mala fide and the motive was to demolish the reputation of the husband in the society. It created a dent in his reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. 2. Husband getting ready to go to factory, the wife sometimes used to crumple the ironed clothes. 3. The wife who hides the keys of the motorcycle when the husband goes to job. 4. The wife closes the main gate when the husband goes to job. 5. Wife launched prosecution under Section 498-A against husband and other relatives while ended in acquittal. 6. Wife made baseless allegation in written statement that her husband had extra marital relations with another woman. 7. Husband and wife both professional doctors. Wife advised her husband not to ask certain female staff members to come and work on off-duty hours when nobody else was available in the hospital. Not to work behind the closed doors with certain members of the staff. There were clear manifestations of her suspecting the husband's fidelity, character and reputation. Constant nagging on those aspects, certainly amounted to causing indelible mental agony and amounts to cruelty. By Team Daniel & Daniel Attorneys & Solicitors Helpline :- 9884883318