Delhi High Court: The present appeal was filed seeking to set aside the judgment dated 23-11-2023 passed by Family Court, Patiala House Courts, New Delhi (‘Family Court’), whereby the guardianship petition filed on behalf of appellant-father seeking custody of his son was dismissed. The Division Bench of Rajiv Shakdher and Amit Bansal*, JJ., even on merits, it would not be in the minor child’s best interest, who was currently five years old to be separated from his mother and his elder sister who were living in Ukraine. The Court also observed that the Family Court while passing the impugned judgment had interacted with the minor son on 17-11-2023, who had expressed his desire to go back to Ukraine with his mother and stated that he did not wish to speak to father and his family members.
Further regarding the advisories issued by the Indian Embassy in Kyiv in October 2022, whereby Indian Nationals had been asked to leave Ukraine, the Court opined that these advisories would not be applicable to mother and minor son as both were Ukraine citizens. Thus, the Court stated that mother should be free to leave India with her minor son and dismissed the present appeal.
Background
In the present case, on 18-11-2000, appellant-father was married to Respondent 1-mother in Vinnytsia City, Ukraine. Further, from the wedlock, a daughter was born on 24-11-2002 and a son was born on 12-02-2019. Since, both the children were born in Ukraine, they were citizen of Ukraine by birth. Subsequently, marital disputes arose between the parties and mother approached the Vinnytsia District Court seeking dissolution of the marriage. Accordingly, vide decision dated 06-05-2021, marriage between the parties was dissolved.
Thereafter, father approached the Executive Committee, Vinnytsia City Council, seeking visitation rights of their minor son, and accordingly, he was granted supervised visitation for two months, followed by unsupervised visitation. On 24-02-2022, war broke out between Ukraine and Russia, so father took the minor son from Ukraine and reached India on 28-03-2022.
Subsequently, mother came to India and filed a habeas corpus petition praying that the father should produce the minor son, and vide order dated 28-07-2023, a coordinate bench of the present Court transferred the interim custody of the minor son from father to mother, subject to mother surrendering her and minor son’s passport. It was also directed that the minor son should not be removed from the jurisdiction of this Court.
Thereafter, father filed a guardianship petition under Section 7 and 25 of the Guardians and Wards Act, 1890 (‘the Act’) before the Family Court, seeking grant of permanent custody of the minor child. Father also sought a relief that mother and the minor child to be restrained from leaving the country. The Family Court vide impugned judgment dated 23-11-2023 dismissed the guardianship petition by observing that the Family Court did not have the territorial jurisdiction. Hence, the present appeal was filed.
Analysis, Law, and Decision
The Court noted that in violation of the decision passed by the competent authority in Ukraine, father had removed the minor son from Ukraine and brought him to India. Therefore, the Court opined that the Family Court had rightly observed that the presence of minor son in India was a result of father’s illegal act. The Court opined that merely because the minor child was living in Delhi with his mother, would not make the minor child an ordinary resident as per Section 9 of the Act. The Court relied on Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42, wherein it was held that a parent who illegally removed the child out of a country should not gain any advantage of his/her wrongdoing and opined that the father could not be permitted to take advantage of his/her wrongdoing.
The Court opined that even on merits, it would not be in the minor child’s best interest, who was currently five years old to be separated from his mother and his elder sister who were living in Ukraine. The Court also observed that the Family Court while passing the impugned judgment had interacted with the minor son on 17-11-2023, who had expressed his desire to go back to Ukraine with his mother and stated that he did not wish to speak to father and his family members.
Further, the Court opined that it appeared that father did not have the financial ability for the upkeep of the minor son, as he had expressed his inability to deposit Rs.1,50,000 towards litigation expenses on account of financial distress. Therefore, the Court opined that it would not be in the minor son’s best interest, both emotionally and financially to be separated from his mother and sister.
The Court referred to Articles 9(1) and 10(2) of the United Nations Convention on the Rights of the Child, 1989 and opined that it was in the minor son’s best interest to remain in the company of mother and his siblings as it provided the child, a safe environment. Further regarding the advisories issued by the Indian Embassy in Kyiv in October 2022, whereby Indian Nationals had been asked to leave Ukraine, the Court opined that these advisories would not be applicable to mother and minor son as both were Ukraine citizens. Thus, the Court stated that mother should be free to leave India with her minor son and dismissed the present appeal.
[Akhilesh Kumar Gupta v. Gupta Snizhana Grygorivna, 2024 SCC OnLine Del 1877, decided on 19-03-2024]
*Judgment authored by Justice Amit Bansal
Advocates who appeared in this case :
For the Appellant: K.P. Mavi, Chitra Gera and Dinesh Pratap Singh, Advocates.;
For the Respondents: Vivek Kohli, Senior Advocate with Bhavya Bhatia, Nimita Kaul, Shivambika Sinha and Gurveer Lally, Advocates; Kirtiman Singh, CGSC with Waize Ali Noor, Shreya V. Mehra, Vidhi Jain and Kartika Baijal, Advocates; Mehak Nakra, ASC (Civil) with Disha Choudhary and Abhishek Khari, Advocates.
