quesDaughter in law returned to India claiming she will not stay with son.

My son was married 6 years back in India. He is a H1B1 visa holder in US. His wife went along with him to US. They also have a kid. Recently she came back along with the child saying that she will not return to US. What can my son do to get back with his wife and child? Where should he take the action?

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    • ans

      In case he wants his wife back, then your son will have to file an application under Section 9 of Hindu Marriage Act, according to which he can seek directions from court thereby asking his wife to stay with him.

      Further, with respect to custody of your children, if  your children are minor then you need to file a petition for the custody of the children.

      Section 6 of The Hindu Minority and Guardianship Act states that the ‘natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property, in the case of a boy or unmarried girl is the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. For appointment of declaration of any person as guardian, the court shall consider the welfare of minor.

      The welfare of the child is determined neither by the economic affluence nor a deep mental or emotional concern for the well being of the child. The answer depends on the balancing of all these factors and determining what is best for the child’s total well being.

    • ansIn India, he can file a petition under Section 9 of the HIndu Marriage Act seeking restitution of conjugical rights. In US, he wil have to act as per the law of the land. In case she fails to appear or contests the petition, her stand and intention would be revealed. Based on that, one can choose future course of action. To start with, a legal notice can be sent to her.

      Advocate Jiwan Pal Singh

        Tis Hazari Court, Delhi

    • ansDear,

      As per the fact of your case i assumed it that the marriage was solemnized in India and in that case if your son wish her wife and kid back he has to file a suit under section 9 of HMA or he may claim the custody of the kid but in general if the kids age is less than 5 yrs. courts give the custody to mother only.

      But before all this please try to identify the cause of the problem. why she left US.May the answer help you to resolve the issue with the help of family and friends.
      If the problem persist than contact any lawyer to take appropriate legal action as advised above.

      Mohan S.

      Advocate Mohan S

        Janakpuri, Delhi

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