If you are stuck in such a situation, here is what to do.

Mr. Alok Verma, a resident of the nation of Eldoria, has been married to Mrs. Neha Verma for over a decade. Their son, Aarav, has special needs, and for his therapeutic care, Mrs. Verma recently travelled to her hometown in Rudrapur, India. What was intended to be a move for their child’s well-being has escalated into a severe marital crisis. Mr. Verma reports that he and his wife have been in constant conflict over various issues. He states that throughout their marriage, his wife has spent very little time at their marital home in Eldoria and has also allegedly mistreated his parents and sister during her stays in India.

This time, upon arriving in Rudrapur, Mrs. Verma went directly to her parents’ house with Aarav and has refused to move to Mr. Verma’s parental home. While the decision for her to travel to India for their son’s therapy was mutual, the situation has deteriorated. Mrs. Verma’s parents are now allegedly involved, preventing Mr. Verma from having any contact with his son. Aarav is a citizen of Eldoria, and his passport is nearing its expiration date, which could create legal complications for his stay in India. Mr. Verma is distressed, fearing he will lose his son, and is seeking legal guidance on how to secure custody, proceed with a divorce, and whether he should relocate to India to resolve the matter.

Advice in such cases

Navigating an international custody battle and divorce requires a strategic and well-informed approach. The jurisdiction of the courts and the welfare of the child are the paramount considerations.

• Jurisdiction: Since the child is currently in India, Indian courts will have jurisdiction to decide on matters of custody and guardianship. The fact that the child is a foreign national does not automatically oust the jurisdiction of Indian courts, which are guided by the principle of the child’s welfare.
• Child’s Welfare is Paramount: All legal proceedings will revolve around what is in the best interest of the child. Your commitment to the child’s therapy and well-being will be a crucial factor.
• Relocation to India: Moving to India to personally handle the legal case can be advantageous. It demonstrates your commitment to your son and allows you to engage more effectively with your lawyer and the court proceedings. However, this is a significant decision with personal and professional implications that must be carefully weighed.
• Document Everything: Keep a record of all communications with your wife and her family. This includes emails, text messages, and call logs. Any evidence of your financial support for the child and his therapies will also be vital.
• Consult with Lawyer: Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think

Applicable Sections of Law

This is primarily a civil matter governed by family law. The new criminal codes like the Bharatiya Nyaya Sanhita (BNS) would only apply if there are specific criminal allegations like criminal intimidation or extortion.

• The Guardians and Wards Act, 1890: This is the primary legislation in India for deciding child custody matters. You can file a petition under this Act to be declared the legal guardian and seek custody of your son.
• The Hindu Marriage Act, 1955: If you and your wife are Hindus, you can file for divorce on grounds such as cruelty and desertion. Section 26 of this Act also empowers the court to pass orders regarding the custody, maintenance, and education of minor children.
• The Hague Convention on the Civil Aspects of International Child Abduction: India is a signatory to this convention. You can file a petition seeking the return of the child to their country of habitual residence (Eldoria). The core principle is that custody disputes should be decided by the courts of the country where the child habitually resided before the wrongful removal or retention.

If you are the complainant

As the person initiating legal action, you need to be proactive.

• File for Custody Immediately: File a petition for custody of your son in the appropriate Family Court in Rudrapur under the Guardians and Wards Act, 1890. You can also request interim orders for visitation rights so you can see your son while the case is pending.
• File for Divorce: Simultaneously, you can file a divorce petition on the grounds available to you, such as cruelty or desertion, under the relevant personal law (e.g., the Hindu Marriage Act, 1955).
• Habeas Corpus Petition: In extreme cases where you are completely denied access and believe your child is in illegal detention, you can file a writ of Habeas Corpus in the High Court. This is a powerful remedy to have your child produced before the court.
• Passport Issue: Use the issue of the expiring passport legally. The consent of both parents is typically required for a minor’s passport renewal. You can inform the court and the regional passport office of the dispute.
• Consult with Lawyer: Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think

If you are the victim

Feeling like a victim of parental alienation is deeply distressing. The legal system provides remedies to protect your rights as a parent.

• Seek Immediate Legal Intervention: Do not delay. The longer the child is away from you, the more the other party might argue that the child has settled into the new environment. Your first step should be to send a legal notice through a lawyer demanding access and custody.
• Focus on the Child’s Welfare: Frame your entire case around the well-being of your son. Highlight his need for both parents, his established life in Eldoria, and any disruption his current situation is causing to his routine and therapies.
• Gather Evidence of Your Parental Role: Collect documents, photos, and videos that show your active involvement in your son’s life, including his therapy and daily care, before he was taken to India.
• Consult with Lawyer: Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think

How the police behave in such cases

In matrimonial and custody disputes, the role of the police is limited. These are considered civil matters, and the police will not intervene to take a child from one parent and give them to another without a specific court order. Their involvement is generally restricted to:

• Executing Court Orders: If a court issues an order (e.g., a search warrant for the child or an order to enforce visitation rights), the police will assist the court-appointed bailiff in executing it.
• Criminal Complaints: If a specific criminal offense is alleged, such as criminal intimidation, assault, or wrongful confinement, and a formal complaint (FIR) is filed, the police will investigate that specific offense. However, this runs parallel to and does not replace the family court proceedings for custody.

FAQs people normally have

What evidence is required?

To build a strong case, you will need evidence to support your claims. This includes:

• Proof of marriage and the child’s birth certificate.
• The child’s Eldorian citizenship and passport documents.
• Records of communication (emails, messages) with your wife and her family that show her intentions, your attempts at reconciliation, and their refusal to allow contact.
• Evidence of your financial contributions towards your wife and child’s expenses, including the therapy sessions.
• Proof of your stable life, income, and ability to provide a suitable home for the child in Eldoria.
• Witness statements from friends, family, or therapists who can attest to your role as a father.

How long will the investigation take?

It is important to understand that this is not a police “investigation” but a judicial “proceeding.” The duration of a custody and divorce case in India can vary significantly. An uncontested divorce might be resolved in six months to a year. However, a contested international custody battle can be lengthy, often taking several years to reach a final decision through the different levels of the judiciary. Interim orders for visitation can usually be obtained much faster, often within a few months of filing the case.

Advocate Sudhir Rao, Supreme Court of India