'It's In Best Interest Of Child': Delhi HC Allows Ukrainian Woman To Leave India With Minor Child Brought To India By Estranged Husband

The Delhi High Court allowed a Ukrainian woman to leave India with her minor child who was brought to India by her estranged husband.

The said woman’s husband had filed an appeal seeking setting aside of the judgment of the Family Court by which his guardianship petition seeking custody of his son was dismissed.

A Division Bench of Justice Rajiv Shakdher and Justice Amit Bansal observed, “Consistent with the aforementioned articles, we are of the opinion that the usual place of residence of the child is Vinnytsia, Ukraine. The child, as noted hereinabove, seeks to remain in the company of the respondent/mother. The respondent/mother and the child, who are citizens of Ukraine, wish to return to their country. The appellant has been given rights of visitation by the concerned Ukrainian authorities. … Therefore, in our view, it is in the best interest of the child, notwithstanding the hostilities in other parts of the country, to remain in the company of the respondent/mother and his siblings as it provides the child, in the given circumstances, a safe environment.”

The Bench noted that as per Clause (2) of Article 10 of the Convention on the Rights of the Child (CRC), the States parties are required to respect the right of the child and his/her parents to leave any country, including their own, and to enter their own country.

Advocate K.P. Mavi appeared for the appellant/husband while Senior Advocate Vivek Kohli appeared for the respondents.

Facts of the Case -

The parties got married in 2000 and from the said wedlock, two children were born in Ukraine and were thus, citizens of Ukraine by birth. Subsequently, marital disputes arose between the two and the wife approached the Vinnytsia District Court seeking dissolution of the marriage. The marriage was dissolved vide a decision and thereafter, the husband approached the Executive Committee, Vinnytsia City Council seeking visitation rights in respect of his minor son. The same was allowed and he was granted supervised visitation for a period of two months, followed by unsupervised visitation.

In 2022, war broke out between Ukraine and Russia and the husband took the minor son from Ukraine and reached India. This prompted the wife to come to India and approach the High Court by filing a habeas corpus petition. She prayed that the husband produce the minor child and the court transferred the interim custody of the child from the husband to the wife, subject to surrendering her passport. The writ petition was disposed of and then the husband filed a guardianship petition seeking grant of permanent custody of the child. However, the Family Court did not grant the same and hence, he approached the High Court.

The High Court in view of the facts and circumstances of the case said, “Even on merits, we do not think that it would be in the best interest of the minor child, who is currently five years old, to be separated from his mother (respondent no.1) and his elder sister, who are living in Vinnytsia, Ukraine. The Family Court while passing the impugned judgment had interacted with the minor child on 17th November, 2023, who had expressed his desire to go back to Ukraine with the respondent no.1 and stated that he did not wish to speak to the appellant and his family members.”

Furthermore, the Court noted that the appellant does not have the financial wherewithal for the upkeep of the minor child and in this regard, the Court had directed the appellant to deposit Rs. 1,50,000/- towards litigation expenses, however, the appellant expressed his inability to deposit the said amount on account of financial distress.

“Therefore, in our considered view, both emotionally and financially, it would not be in the best interest of the minor child to remain in India, separated from his mother and sister. … Our view appears to be in line with Article 9(1)i and Article 10(2)ii of the Convention on the Rights of the Child [in short, “CRC”]. … Inter alia, as per Article 9(1), where parents are living separately, a decision has to be made [in this case, by the courts] as to the child’s place of residence”, it added.

Accordingly, the High Court dismissed the appeal and refused to interfere with the impugned judgment.

Cause Title- ABC v. XYZ (Neutral Citation: 2024:DHC:2149-DB)

Appearance:

Appellant: Advocates K.P. Mavi, Chitra Gera, and Dinesh Pratap Singh.

Respondents: Senior Advocate Vivek Kohli, CGSC Kirtiman Singh, ASC Mehak Nakra, Advocates Bhavya Bhatia, Nimita Kaul, Shivambika Sinha, Gurveer Lally, Waize Ali Noor, Shreya V. Mehra, Vidhi Jain, Kartika Baijal, Disha Choudhary, and Abhishek Khari.

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