Woman gets child custody after ex-husband fails to appear in court

Bangalore:

The Karnataka High Court has allowed a 34-year-old woman to take her child to Australia and settle there without the consent of her former husband.

Justice M. Nagaprasanna allowed the mother’s plea under the Guardians and Wards Act, 1890 after the biological father was not present at the court proceedings. Rakshitha sought legal sanctions to obtain permanent residency for her child in Australia.

The petitioner, who lives in Australia, brought an action in the Supreme Court against her first husband CC Shashikumar, a farmer from Kunigal.

The couple got married in 2006 and after the birth of their daughter, their relationship fell apart, leading to a divorce. Both had filed for divorce under certain conditions.

One of the terms of the petition was that the ex-husband should have access to the only child.

The woman filed a request in 2022 with the family court to relax this clause, as her former husband had not even visited the child for the past 8 years.

Because the child’s father did not respond to the court summons, the court struck down access rights.

The mother and child lived in Australia on a tourist visa, which will soon expire. Therefore, she tried to get a permanent visa to settle permanently in Australia.

Under the terms of the Australian government’s migration rules, the woman was required to provide legal custody of the child and written permission from the local court to remove the minor child from the jurisdiction of India.

Subsequently, the woman had filed a plea in family court seeking permission to bring the child to Australia, under Section 26 of the Act.

However, the court rejected the request, saying a new petition must be filed to gain custody of the child “since the court becomes functus officio once the proceedings are concluded”. The woman then went to the Supreme Court, which ruled on January 19, 2023.

The court accepted the plea, saying it was appropriate to grant permission “to take the child beyond the shores of this nation, as was prayed for in the filing, only to avoid a multitude of lawsuits that will ultimately result in an order of this kind if the spouse has not contested the case in any of the proceedings and the child in terms of the compromise is already in the hands of the mother/wife/petitioner.”

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