Legal Question in Family Law in New York

Re: kidnap of child

Dear client,

Your estranged wife who is now living in India with the minor child [aged less than two years] is having a legal right to the custody of the child. By virtue of the provisions contained in Section 6 (a) of the Hindu Minority and Guardianship Act, 1956 you as the father of the child, is the natural guardian. But the proviso to the sub-section says that the custody of a minor [whether boy or girl] who has not completed age of five years shall ordinarily be with the mother. So your wife is now having the legal custody of the child.

Section 359 of the Indian Penal Code classifies kidnapping into two kinds namely, kidnapping from India and kidnapping from lawful guardianship.

Explanation to Section 361 of I.P.C says that the words �lawful guardian� include any person lawfully entrusted with the care or custody of such minor.

Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from India. [Section 360 IPC]

Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, out of the keeping of the lawful guardian of such minor, without the consent of such guardian, is said to kidnap such minor from lawful guardianship. [Section 361]

Therefore, if you go over to India, take the child by force from the lawful custody of your wife and convey it to USA, it would amount an offence of kidnapping under Sections 360 and 361 of Indian Penal Code and such offence shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. It is an offence despite the fact that the child is a US citizen.

I could not say what type of action the US police would take against you?

As per your statement you got married in India. Your wife is an Indian and is now a resident in India. You should get divorce in India from Indian Court. It is not legally possible to obtain divorce from US Court.

Re: kidnap of child

Dear Friend,

I am sorry, but as a matter of practise, we do not reply to queries from the persons, who do not give their complete details, nor to the persons not directly affected by the problem under the query. We also do not give any citations to the seekers.

Therefore we request you to send your query only through the query form at the Free legal advice pages of the vakilbabu website at http://www.vakilbabu.com quoting the reference LawGuru.com.

We believe you shall understand.

Warm regards

Satish Maheshwari.