My daughter-in-law left for a job abroad along with her seven-year-old daughter in August 2002. She was supposed to come back after a year, but it is now clear that she is not interested in doing so. She has asked my son to join her there. He is not keen on doing that. I want to know if my son can obtain an automatic divorce. Can he get the custody of his daughter? My daughter-in-law is not interested in getting a divorce.

From your query, it appears that your daughter-in-law has no intention of returning to her family, but is, at the same time, disinclined to a divorce. Under the circumstances, your son would have to make an application for the custody of his daughter before the appropriate court having territorial jurisdiction. Under the provisions of the Hindu Minority and Guardianship Act, 1956, the father is the natural guardian of a ‘minor’ (that is a person who is less than 18 years of age), although the custody of a child below the age of five will ordinarily be with the mother.

However, Section 13 of the Act as well as recent decisions of the Supreme Court have specified that in the appointment or declaration of any person as a guardian, the paramount consideration of the Court will be the welfare of the minor. Therefore, your son will have to satisfy the court as to why he should be given custody of his daughter.

Lastly, there is no such concept as an ‘automatic divorce’ in law and your son would have to make an application for a divorce under section 13 of the Hindu Marriage Act, 1955 on any of the grounds mentioned in that section before the appropriate district court.