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NEW
DELHI: Two years after a US district court refused to honour
an order of the Supreme Court of India in a child custody
litigation arising from a soured marriage, the latter has
taken up for adjudication an exactly reverse case.
The
question before the apex court is - can a woman, after consenting
to a divorce decreed by a US court, be allowed to come back
to India and move the courts for fresh adjudication of the
marital dispute alleging that she was forced to sign the papers
and that her husband ill-treated her? By accepting for hearing
a petition filed by a US citizen against his India-based ex-wife,
the apex court has not only embarked on clearing the grey
legal issues in soured NRI marriages increasingly tossed into
courts, but also landed in a situation exactly opposite to
the one it faced in 2005.
In
October 2005, a New York family court had virtually nullified
an order of the apex court in a custody battle relating to
the two great-grandchildren of former Andhra Pradesh CM N
T Rama Rao. The apex court had wanted the presence of the
two children to ascertain their view whether they wanted to
stay with their grandparents after the death of their mother
or with their US-based father. But the NY court had refused
to allow the children to be taken to India.
In
the case at present before the SC, US citizen Vijaya Vajja
has filed a petition saying his ex-wife Roopa had consented
to divorce before a Fairfax County Court in the US on January
14, 2004.
He
alleged that on May 12, 2004, she flew to India with their
son to deprive him of the joint custodial rights granted by
the County Court, under which the child was to stay with him
on all working days from 4.30 pm to 9 pm and from 8.30 am
to 9 pm on all holidays.
On
being intimated about the unilateral withdrawal of the child
from its jurisdiction, the US court on June 18 ordered Roopa
to return the child to the father.
After
coming to India, Roopa filed a petition before a Hyderabad
family court seeking sole custody of the child. She alleged
that she was forced to sign the divorce papers and that Vijaya
had caused her severe mental agony by going around with another
woman, whom he married after divorce.
Whatever
be the allegations and counter-allegations, the petition moved
before the apex court by Vijaya through counsel Sridhar Chitale
also raises another important issue - can a woman after participating
and accepting a decision of a foreign court be permitted to
come back to India and lodge FIRs accusing the husband of
harassment at her matrimonial home?
Vijaya
alleged that the FIRs were filed with the intention of preventing
him from coming to India and meeting his son as the fear of
arrest under Section 498A always hung on his head. On the
appeal, the AP HC initially granted restricted rights to the
father to meet the child, but in the final order passed last
year, it dismissed his appeal saying there was no ground to
interfere with the family court's order.
While
the SC appears to have arrived at an interim arrangement over
custodial and visitation rights concerning the child, the
main issue relating to finality of the foreign court divorce
decree is to be thrashed out.
dhananjay.mahapatra@timesgroup.com
[23 Sep 2007,Dhananjay Mahapatra,TNN]
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