Custody Battle: Bombay High Court Pulls Up Father For Making "Hollow Claims" Of Racial Discrimination Against Dutch Ex-Wife And In-Laws

The Bombay High Court took strong exception to a lawyer's accusation of racial discrimination against his ex-wife and her Dutch family in a child custody case.

The court allowed the woman to take her daughter back to Netherlands in accordance with orders previously issued by a Dutch Court and the father's undertaking to that court.

A division bench of Justices AS Gadkari and Shyam Chandak held that the father's claims of racial discrimination against him and his five-year-old daughter were “completely hollow” and a “sham plea.”

“India is undoubtedly known for its zero-tolerance policy towards racial discrimination. The Respondent No.2 (father), however, had the audacity to take the shelter of the defence of racial discrimination; that too against the Petitioner (mother), who once was his wife and spent considerable years with him.”

“This way, the Respondent No.2 has lowered the image of the India and its citizens in the view of Petitioner and her fellow nationals. We record our displeasure for this conduct as according to us, it is unethical,” the court added.

Facts

The High Court was dealing with a habeas corpus petition filed by the Dutch woman against her husband – a practicing lawyer, and her in-laws, seeking the return of her 5-year-old daughter to the Netherlands. She claimed that the couple was married in 2013 but they were finally granted a divorce by the District Court of East Brabant in the Netherlands on 28th April 2023.

Accordingly, the Dutch court granted the mother the child's primary custody and gave the father visitation rights. Before the HC, the mother alleged that her ex-husband (father of the child and an Indian national) brought the child to India for a 2-week vacation in August 2023 but refused to return her.

She claimed that her daughter was a foreign national and she was illegally detained by the father and his family. Moreover, the father's conduct of obtaining a new passport for the child with longer validity just before he came to India, showed he never intended to return with the child to the Netherlands.

Senior Advocate Mihir Desai for the father contended that his client and the child were subjected to racial discrimination and therefore the child developed fear against the mother and her parents. Hence, the child was unwilling to go back to the mother. Moreover, neither the wife nor her family cooperated with him in Netherlands with respect to the child. He also argued there is a possibility of his prosecution and punishment by the Dutch Courts, for violating the Order dated 9th November 2023, whereby he has been directed to return the child to the Netherlands.

Analysis

The court noted that the child had come to India only five months ago and was a Dutch national. The court rejected the father's racial discrimination plea for three reasons. 1. He raised that plea only in 2024, in an appeal against the Dutch Court's order passed in November 2023 to return the child. 2. The contention is vague and 3. The father had willingly agreed for the main residence of child to be with the mother.

Significantly, during an earlier hearing in December 2023, after the petition was filed, the police apprehended the father with the child and produced them in the judge's chambers. The child was extremely comfortable in the mother's company, the court noted.

The court further noted the alacrity with which the mother and her kin acted, travelling all the way to India for access to the child. “This conduct speaks volumes about the Petitioner's sincere interest in child 'N', affection towards her and their warm and compassionate relationships.”

The court noted how the father admitted the child to a school in India immediately and filed for custody at the Family Court in Mumbai thereby forcing the mother to litigate in India. By the time the child would develop roots in India making it difficult for her to return to Netherlands.

“He disregarded the Orders of the Dutch Courts and filed the Petition before the Family Court, at Mumbai to thrust an obstacle in the return of child 'N' to her own country. This clearly indicates that, the Respondent No.2 brought child 'N' to India to serve his own purpose i.e. to keep child 'N' permanently with him,” the bench said.

Accordingly, the court passed an order in the mother's favour allowing her to take the child back to Netherlands. As for visitation rights to the father the court noted the ill effects of 'Parental Alienation Syndrome' and directed the mother to abide by the Dutch Courts joint custody order and allowed the father online and physical access to the child.

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