The custody of a child may remain with the mother when a dispute arises pertaining to it.
Q-I am an Indian mother with two school-going children. I am separated from my husband. He has filed a divorce petition before the Personal Status Court in Dubai. My husband has told me that he wants the custody of our son. As per the UAE law, does the custody of the male child go to the father? Is it better that I apply for divorce in India?
Pursuant to your queries, we assume that your husband is an Indian citizen as well and you both are residents of the UAE. The Federal Law No. (28) of 2005 concerning Personal Status (the ‘Personal Status Law’) is applicable in the UAE in disputes pertaining to child custody. In the UAE, parents are the custodians and guardians of their children in various capacities. Article 142 of the Personal Status Law of the UAE defines custody as “keeping, bringing up and taking care of the child without interfering with the right of the guardian of the person”. Further, it may be noted that usually the mother is considered as the custodian of a child pertaining to physical custody whereas the father is considered as the guardian of a child as per the prevailing laws in the UAE.
As per the Personal Status Law, the mother’s custody of her male child may terminate upon him attaining 11 years of age. This is in accordance with Article 156 (1) of the Personal Status Law, which states: “The custody awarded to women shall terminate upon the child reaching the age of 11 years, if a male, and 13 years, if a female, unless the court deems extending this age to the age of maturity, for the male, and up to her marriage, for the female, is in his/her best interest.” It may, therefore, be noted that if your son is still under the age of 11, the custody of your son may remain with you. If your son has already attained 11 years of age, the custody of your son may vest with your husband. However, the Personal Status Court in the UAE may grant the custody of child/children to any one of the parent keeping in mind the interest of the child until they attain the age of majority.
The custody of a child may remain with the mother when a dispute arises pertaining to it. This is in accordance with Article 146 (6) of the Personal Status Law, which states: “The mother shall have the right of her children’s custody in case of a dispute over the custody unless the judge decided otherwise for the child’s interest.” Therefore, it may be noted that during the period of dispute, you may have the right of your son’s custody as you are the mother.
However, if the mother – due to differences with the father – leaves the conjugal home while the marriage between the husband and wife is still in existence, then both the father and the mother of the child may apply for the custody of the child. This is in accordance with Article 146 (7) of the Personal Status Law, which states: “Both the father and mother may seek the custody of the child if they have a dispute and the mother has left the conjugal house even if their conjugal relation is still existent. The judge shall decide on their application depending on the children’s interest.” Therefore, if you have separated from your husband and have subsequently left the conjugal home, then your husband may be entitled to apply for the custody of your son.
It may be pertinent to note that the Personal Status Law allows the competent court to apply the personal laws applicable in the home country of the non-citizens who are non-Muslims. This is in accordance with Article 1 (2) of the Personal Status Law, which states: “The provisions of this law shall apply to the citizens of the UAE unless non-Muslims among them have special provisions applicable to their community or confession. They shall equally apply to non-citizens unless one of them asks for the application of his law.”
You may approach the Personal Status Court in Dubai to file an application for divorce and custody of your son, and further requesting the court to apply the prevailing personal laws of India or provisions of the law under which you were married. The foreign judgments related to personal status may be recognised by Indian courts if the below mentioned criteria are fulfilled:
1-If the judgment of divorce is on the grounds of mutual consent of the parties;
2-The parties to the case have submitted to the jurisdiction of the foreign courts voluntarily and the judgment passed by the foreign courts is as per natural justice;
3-The parties to the case in foreign courts have applied the personal laws under which they are married in their home country or abroad
Section 13 of the Civil Procedure Code of India 1908 (the ‘CPC of India’) states the grounds under which the foreign court judgments are not valid. It reads as below:
“A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except –
(a) Where it has not been pronounced by a court of competent jurisdiction;
(b) Where it has not been given on the merits of the case;
(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) Where it has been obtained by fraud;
(f) Where it sustains a claim founded on a breach of any law in force in India.”
However, if you intend not to attend to the divorce proceedings in the UAE filed by your husband, then the UAE Personal Status Court may pass an ‘exparte judgment’ (judgment in your absentia). The courts in India may not recognise the ‘exparte judgment’ for divorce passed by the foreign courts, but exparte judgment passed by the UAE court is valid in the UAE. On the other hand, you may also approach the competent courts in India and file an application for divorce and custody of your son under the prevailing personal laws in India or under the provisions of the law under which you are married.
Know the law
The mother shall have the right of her children’s custody in case of a dispute over the custody unless the judge decided otherwise for the child’s interest.
Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates. He is qualified to practise law in Dubai, the United Kingdom and India. Full details of his firm on: www.amalawyers.com. Readers may e-mail their questions to: email@example.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.
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