Woman Obtains Child’s Custody After Former Husband Fails To Appear In High Court

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

A single bench of Justice M. Nagaprasanna granted the mother’s request under the Guardians and Wards Act, 1890 after the biological father failed to appear in the court proceedings.

Rakshitha, who lives in Australia, filed a High Court petition against her first husband, CC Shashikumar, a farmer from Kunigal.  She sought legal sanction to obtain permanent residence for her child in Australia.

The couple married in 2006, but their relationship soured after the birth of their daughter, resulting in divorce. Both parties had filed a divorce petition with certain conditions.

One of the petition’s conditions was that the former husband be granted visitation rights to the only child.

The woman applied to the Family Court in 2022 for a relaxation of this clause because her ex-husband had not visited the child once in the previous eight years.

As the father of the child did not respond to the court’s summons, the court cancelled the visitation rights.

The mother and child were living in Australia on a tourist visa that was about to expire. As a result, she sought a permanent visa in order to settle permanently in Australia.

According to the Australian Government’s Migration Rules, the woman was required to produce a legal custody document for the child as well as written permission from the local court to take the minor child out of India’s jurisdiction.

Subsequently, the woman had filed a plea in the Family Court seeking permission to take the child to Australia, under Section 26 of the Act. The court, however, rejected the application saying a fresh petition has to be filed seeking custody of the child “as the Court becomes functus officio once the proceedings are closed.

The woman then approached the high court.

Allowing the plea, the bench stated that it was appropriate to grant permission to the petitioner’s argument “to take the child beyond the shores of this nation as was prayed for in the application only to avoid multiplicity of litigation which eventually will result in an order of this kind as the husband has not been contesting the matter in any of the proceedings and the child, pursuant to the compromise, is already in the custody of the mother/wife/petitioner.”