The High Court of Karnataka has allowed a 34-year-old woman to take her child to Australia and settle down there without her former husband’s consent.
Justice M Nagaprasanna allowed the plea of the mother under the Guardians and Wards Act, 1890 after the biological father failed to attend the court proceedings. Rakshitha sought legal sanction to obtain permanent residence for her child in Australia.
The petitioner, who is residing in Australia, moved the High Court against her first husband CC Shashikumar, a farmer from Kunigal.
The couple was married in 2006 and after the birth of the daughter their relationship turned sour, leading to divorce. Both, had filed a compromise divorce petition with certain conditions.
One of the conditions of the petition was that the former husband would have visitation rights to the only child.
The woman filed an application before the Family Court in 2022 for relaxation of this clause as her former husband had not even once visited the child in the last 8 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 Tourist visa, which is set to expire. Hence, she sought to secure a permanent visa to settle down permanently in Australia.
As per the terms of Migration Rules of the Australian Government, the woman was required to produce a legal custody document of the child and written permission of the local court to take the minor child out of the jurisdiction of India.
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.
However, the court 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, which delivered the judgement on January 19, 2023.
Allowing the plea, the bench said it was appropriate to grant the permission “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 in terms of the compromise is already in the custody of the mother/wife/petitioner.”
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