Dear Client,

In the Present Scenario, you have applied for Divorce and the initial process for the same is going on. You husband had been mentally abusive to you, by way of shouting, screaming, and throwing things, affecting your minor kids as well. Presently, you and your kids live alone and are planning to move abroad and settle down there permanently for both of your well-being. You have also mentioned that your husband never visited your kids and you, for about 8 months, and now suddenly, he as started visiting, but does not show interest on your kids. Hence, your query is on where there is any way of taking custody of your kids, allowing to take them with you to abroad without the consent of their father. Herein, according to the Indian Divorce Act, 1869, the custody of the minor children can be taken into consideration, during the divorce proceedings. One of the major points that would be noticed by courts is the welfare of the child, as the primary consideration. Besides, the best interests of the minor children would also be taken into account before deciding on the same. Therefore, even though your husband does not consent for you moving abroad with your children, you may seek court's permission for the same, and on their approval, you may move to abroad with the children.

Hope you find this answer beneficial for resolving the dispute.

- If you have filed the divorce petition on the ground of mutual consent , then you can settle the dispute of custody of the kid with your husband at the time of divorce. 

- Further, if you have filed a contested divorce petition then you will have to file a separate custody petition before the family Court for getting permanent custody of the kid without a visitation right. 

- Further, under the Guardian and Ward Act, , the welfare of the child as the paramount importance, like ethical upbringing of the child, Safe-keeping of the child, Good education , and economic well-being of the guardian. 

- Hence, to win sole physical and legal custody, you should show the court that awarding you custody is in the best interests of your child due to factors such as your existing relationship with the child, stability of the home life you provide, inability of the father to meet the child's needs; father's lack of involvement in day to day need of the kid.

You need court orders to take your kids abroad if your husband refuses to give his consent 

Taking a child without permission of a parent to abroad can be treated as crime if wife refuses to divulge any information about the child.

You can apply for sole custody of your child under the provisions of guardians and wards act  and also seek court order to take the children abroad wit you considering the children welfare as paramount. 

After a divorce, both partners retain parental responsibility for the children.

Both partners remain responsible for raising and caring for the children.

Whether is taking care of the child or not, you cannot legally take the child without the consent of the father of the child.

However there is no embargo on you to take your child with you to abroad when the court grants you the sole custody as well as permission to take the child abroad when the father is not granted the visitation rights also in the best interest of the child.

You need consent of father but you can take them and later if husband files for custody can counter it from abroad 

To answer your query, it is necessary to know if any custody case pending as of now? Of any of you have filed an application for interim custody in the pending divorce case??

How old are the kids?

You have to file a custody petition before the competent court of law and afford opportunity to your husband to defend.

On merits the court shall pass orders granting the relief.

G.Rajaganapathy

Advocate

High Court of Madras