Delhi High Court Paves Way For Ukrainian Woman To Leave India With 5-Yr-Old Child, Rejects Former Husband's Custody Plea

The Delhi High Court on Tuesday dismissed a plea moved by a former husband challenging a family court order which rejected his guardianship petition seeking custody of his 5 year old minor child, a citizen of Ukraine.

A division bench of Justice Rajiv Shakdher and Justice Amit Bansal said that 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 mother and his sibling, also citizens of Ukraine, as it will provide a safe environment to the minor.

“Accordingly, taking a holistic view of the matter, we are not inclined to interfere with the impugned judgment. The present appeal is dismissed. Resultantly, the respondent no.1 shall be free to leave India with the minor child,” the bench said.

The parties got married in 2000. The marriage was dissolved in May 2021 by way of court decree in Ukraine. The man was later granted visitation rights. Besides the five-year-old minor son, a minor girl was also born in 2002. 

The woman claimed that her ex husband took the minor son out for a walk in 2022 but did not return. It was her case that she came to know that he along with the minor child had crossed the border and fled to India from Romania.

Her habeas corpus plea was disposed of by a coordinate bench in October last year by granting liberty to the man to approach the family court for interim custody or visitation rights in respect of the minor child. The family court in November last year dismissed his guardianship petition.

Dismissing the appeal, the bench said that the usual place of residence of the child is Ukraine and noted that the minor sought to remain in the company of the mother.

An affidavit was filed by the Union Ministry of Home Affairs stating that there was an Air Strike in Vinnytsia, Ukraine, sometime back on September 01, 2023. It further stated that as per the advisories issued by the Indian Embassy in Kyiv in October, 2022, “Indian Nationals” had been asked to leave Ukraine.

“However, these advisories would not be applicable to the respondent no.1 and the minor child as both of them are citizens of Ukraine,” the court observed.

It added that the man did not have the financial wherewithal for the upkeep of the minor child and that he even expressed his inability to deposit Rs.1,50,000 towards litigation expenses, on account of financial distress.

“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,” the court said.

Counsel for Appellant: Mr K.P. Mavi, Ms Chitra Gera and Mr Dinesh Pratap Singh, Advocates

Counsel for Respondents: Mr Vivek Kohli, Senior Advocate with Ms Bhavya Bhatia, Mrs Nimita Kaul, Mrs Shivambika Sinha and Mr Gurveer Lally, Advocates for R-1; Mr Kirtiman Singh, CGSC with Mr Waize Ali Noor, Ms Shreya V. Mehra, Ms Vidhi Jain and Mr Kartika Baijal, Advocates for UOI; Ms Mehak Nakra, ASC (Civil) with Ms Disha Choudhary and Mr Abhishek Khari, Advocates for R-5

Title: AKHILESH KUMAR GUPTA v. MS. GUPTA SNIZHANA GRYGORIVNA & ORS.

Citation: 2024 LiveLaw (Del) 322

Click Here To Read Order