Divorced
NRI parents in SC over US visit of minor daughter
A
divorced American couple of Indian origin is fighting
a legal battle in India over custody of their
minor daughter. The Supreme Court on Tuesday
asked the mother to produce the child before it
on June 4 to find out if the daughter wanted to
be with the mother or the father.
“The child is suffering…
Have you taken the wish of the child into account?
That has to be determined,” a bench of justices
CK Thakker and LS Panta said, adding, “The
wish of the child is very important.”
It also issued a notice to
the father on the mother’s petition challenging
the April 30 order of the Calcutta High Court
rejecting her plea to allow her to keep the daughter
with her in India.
In fact, the dispute started
in the US itself. After the couple split, the
daughter was with the mother under an order passed
by a US court that had given the father “right
to visit” the child. The mother, who remarried
and had a baby with her second husband, allegedly
violated the US court’s order and came to
Kolkata with the seven-year-old girl.
The apex court would also
decide if a Person of Indian Origin (PIO) could
invoke jurisdiction of Indian courts to overrule
a foreign court’s order. According to Section
13 of Code of Civil Procedure, the decision of
a foreign court is binding upon the parties (in
India) unless it appears that such court had no
inherent jurisdiction to pass the order.
The mother, now living with
her second husband in Kolkata with an Overseas
Citizen of India (OCI) status, has alleged that
her first husband obtained an ex-parte order from
a US court for the girl's visit to that country.
She accused her former husband of filing an application
before Indian authorities for the cancellation
of OCI status granted to their daughter.
She expressed fears that
if during the child’s visit to the US her
OCI status was cancelled by Indian authorities,
the girl will have to stay over there as a US
citizen. However, the father’s counsel said
all of them (the child and her parents) were US
citizens and they had accepted the jurisdiction
US courts. Even their marriage was dissolved through
a decree of mutual divorce by a New Jersey court.
The mother contended the
US court had granted her custody of the child.
