The Delhi High Court on Tuesday allowed a Ukranian woman to travel back to her native country with her five-year-old son, who was brought to India by her Ex-husband after the Russia-Ukraine war broke out in March 2022.
The woman had travelled to India and filed a plea of Habeas Corpus to produce the child before the court.
The division bench, comprising justices Rajiv Shakdher and Amit Bansal, dismissed the appeal moved by Akhilesh Gupta and upheld the family court order rejecting the Guardianship petition on the ground of territorial jurisdiction.
The High Court noted that appellant Akhilesh Gupta brought his minor son to India in violation of the decision passed by the competent authority in Ukraine.
The appellant cannot be permitted to take advantage of his wrong, the High Court held.
"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 and his elder sister, who are living in Vinnytsia, Ukraine.
The Family Court, while passing the impugned judgement, had interacted with the minor child on November 17, 2023, who had expressed his desire to go back to Ukraine with the mother and stated that he did not wish to speak to the appellant and his family members," the division bench said.
The High Court observed that the appellant does not have the financial means for the upkeep of the minor child. In this regard, it may be mentioned that this Court, vide Order dated January 29, 2024, had directed the appellant to deposit Rs 1,50,000 towards litigation expenses.
"However, the appellant has expressed his inability to deposit the said amount on account of financial distress," the court said.
The High Court held, "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."
The High said it is in consonance with Clause (2) of Article 10, the state 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.
Akhilesh Gupta had filed an appeal seeking setting aside of the judgment of 23rd November, 2023 passed by the learned Judge, Family Court, Patiala House Courts, whereby the guardianship petition filed on behalf of the appellant/father seeking custody of the appellant's son was dismissed.
The appellant was married to the respondent, Snizhana Grygorivna, in Vinnytsia City, Ukraine, on November 18, 2000. From the said wedlock, two children were born: a female child on November 24, 2002 and a male child on February 12, 2019. Both the children were born in Ukraine and are thus, citizens of Ukraine by birth.
Akhilesh Gupta had approached the Executive Committee, Vinnytsia City Council, seeking visitation rights in respect of their minor son, which was allowed vide a decision dated 15th July, 2021. In terms of the said decision, the appellant was granted supervised visitation for a period of two months, followed by unsupervised visitation.
On February 24, 2022, war broke out between Ukraine and Russia. Akhilesh Gupta on March 23, 2022, took the minor son from Ukraine and reached India on March 28, 2022. The minor child was around three years old at that point of time. Thereafter, she had approached the Delhi High court through her counsel.
On July 28, 2023, a coordinate bench of this Court transferred the interim custody of the minor child from the appellant to the mother. The subject would be surrendering her passport and the passport of the minor child to the Station House Officer (SHO), Police Station Vasant Kunj.
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