UK NRI father got equal rights in child custody battles in India
Don't play the fool in India!

New Delhi, Aug. 11, 2009
Sukhdev Singh./ Gary Singh, LA

Miss Shilpa Agarwal married to Aviral Mittal and the couple had been residing in the UK after their marriage in November 2003 and in 2006.

• Aviral Mittal said in his email today:

  "My wife Shilpa Agarwal abducted my daughter to India in Sep 2008, and refused to return. I filed a petition in UK court family division, and in Delhi high court in Dec 2008. On Aug 7 2009, the Delhi high court ruled in my favour asking my wife Shilpa Agarwal to return the child back to the UK jurisdiction within 14 days.

UK court family division gave direction to his wife to return their daughter, a British passport holder, to the UK. After the the petition heard:

• passed an order that the child be returned to the “jurisdiction of England and Wales within 14 days” and the child should “thereafter be forbidden to be removed from the jurisdiction of England and Wales without the permission of the judge of this (UK) court
• Also gave a direction to hand over the passport and travel documents of the child within 72 hours of her return.

On Aug 7 2009, The Delhi High Court, a Division Bench of Justice S K Kaul and Justice Ajit Bharihoke said:

• a court in the couple’s city of residence will be better placed to decide what is best for the couple and their children.
• for NRIs, “in matters of matrimony and custody”, it is best to follow the law of the place which has the “closest connection” with their own well being and that of their children.
• The court was deciding on a habeas corpus petition filed by UK resident Aviral Mittal for his three-and-a half-year old daughter.
• Mittal's wife, Shilpi must appear before the Family Division of U K High Court in compliance with its previous order within two weeks.
• If she failed to do so, this bench would pass an order handing over temporarily the child's custody to the husband, the bench said while disposing of a petition filed by Aviral Mittal, the husband.

Mittal’s wife, Shilpa Agarwal argued in court:

• The custody of a “female child of tender age” ought to remain with the mother.
• Refused to recognise the authority of the UK court’s order and accused her husband of cruelty.

The Government of India is in the process of acceding to the Hague Convention on Civil Aspects of International Child Abduction. However, before that is done, and India becomes a member of about 80 contracting convention nations, an appropriate Indian legislation will have to be enacted for its implementation. In this way children removed to and from India will be reunited with their aggrieved parent and India will no longer be a sought after destination for parking removed NRI/PIO/OCI/foreign citizen children from foreign jurisdictions.

Also, foreign courts will be encouraged to permit NRI kids to freely visit India without fear of abduction. The draft of the Indian Civil Aspects of International Child Abduction Bill 2007 meant to secure the prompt return of children wrongfully retained or removed to India proposes to ensure that the rights of custody and access under laws of contracting states are respected by providing for prompt removal of wrongfully removed children.

Unfortunately, national and international parental child abduction occurs more than we'd like to believe. In US, every year about 350,000 children are victims of child abduction during the process of their parent's separation or divorce. The United States has enacted several laws including the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Parental Kidnapping Prevention Act (PKPA) to deter interstate parental kidnapping and enforce child custody and visitation orders. The issuance of criminal warrants and other deterrents are potential ways to help prevent parental child abduction from occurring during your divorce process.