Habeas Corpus Petition U/s. 482 CrPC Read With Art 226 Seeking Interim Custody Or Visitation Rights Of Child Is Not Maintainable: Delhi HC

Noting that the father had abducted the child without the mother's consent and in violation of the Ukrainian court order, the Delhi High Court has granted interim custody of a three-year-old boy to his mother, a Ukrainian citizen, who had filed a habeas corpus petition seeking his production.

The Division Bench of Justice Suresh Kumar Kait and Justice Shalinder Kaur observed that “Admittedly, present petition has been filed under the provisions of Article 226 & 227 of the Constitution of India read with Section 482 Cr.P.C. under the nature of hebeas corpus seeking production of son of the parties. Thus, the aforementioned application seeking interim custody or visitation rights of the child is not maintainable”.

Senior Advocate Vivek Kohli appeared for the Petitioner, whereas CGSC Ajay Digpaul appeared for the Respondent.

The High Court held so while observing that the child was born in Ukraine and that the Ukrainian court had granted a decree of divorce to the parties in May 2021, granting custody of the child to the mother.

As per the brief facts of the case, the child of the parties was born in the year 2019 in Ukraine. The District Court, Vinnystia region had granted decree of divorce to the parties in the year 2021. Later, the fifth respondent (father) had filed an application regarding the involvement and contact arrangements in relation to Master Samir Akhileshovych Gupta. However, on the pretext of exercising his right to un-supervised contact with Master Samir Akhileshovych Gupta, he abducted the latter in gross violation to the decision of the Vinnytsia City Council and crossed the border on Mar 24, 2022 into Romania from where he brought Master Samir Akhileshovych Gupta back to India. Later, the petitioner obtained a Judgment in Default from the Vinnytsia District Court which was informed that Master Samir Akhileshovych Gupta was living in India with fifth respondent. This led to the filing of the present habeas corpus petition by the petitioner.

After considering the submission, the Bench considered an application from the father, seeking an extension of visitation rights and a meeting with the child on the occasion of Dussehra.

The Bench observed that the present petition was filed under Article 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, seeking production of the child, and thus, the application seeking interim custody or visitation rights of the child was not maintainable.

The High Court also noted that the father apprehended that the mother might flee the country with the child.

In light of this apprehension, the High Court directed the mother to not leave the country, until the parties could approach the appropriate forum to deal with the issue of custody and visitation rights of the child.

Cause Title: Ms Gupta Snizhana Grygorivna v. Union of India and Ors. [Neutral Citation: 2023:DHC:7760-DB]

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