Delhi High Court allows Ukrainian woman to travel back with 5-year-old son who was brought to India by ex-husband

The Delhi High Court on Tuesday allowed a Ukrainian 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 [Akhilesh Kumar Gupta v. Ms Gupta Snizhana Grygorivna & Ors].A Division Bench of Justices Rajiv Shakdher and Amit Bansal upheld the family court order which had rejected the guardianship petition filed by Akhilesh Kumar Gupta (the father) on the grounds of lack of territorial jurisdiction.Gupta had come to the High Court challenging the family court order..While upholding the order, the High Court noted that Gupta and his ex-wife Gupta Snizhana Grygorivna were married and got divorced in Ukraine, and that their two children were also born in that country.The Court said that the father had brought the child to India in violation of a Ukrainian court’s order and that he cannot be permitted to take advantage of his own wrong.“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 judgment stated.Therefore, it would not be in the best interest of the minor child to remain in India, separated from his mother and sister, the Court held..The Bench further said that its views are in line with Article 9(1) and Article 10(2) of the Convention on the Rights of the Child.As per Article 9(1), where parents are living separately, a decision has to be made as to the child’s place of residence. According to 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.“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.”.On the issue of the situation in Vinnytsia, Ukraine, the Court said that the Indian government’s advisories asking Indian nationals to leave the country will not be applicable to the mother and her minor son, since they are citizens of that country.“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 Court ordered..Advocates KP Mavi, Chitra Gera and Dinesh Pratap Singh represented the father.Senior Advocate Vivek Kohli along with Advocates Bhavya Bhatia, Nimita Kaul, Shivambika Sinha and Gurveer Lally represented the mother.Union of India was represented through Central Government Standing Counsel (CGSC) Kirtiman Singh as well as advocates Waize Ali Noor, Shreya V Mehra, Vidhi Jain and Kartika Baijal.Additional Standing Counsel (ASC) Mehak Nakra along with Advocates Disha Choudhary and Abhishek Khari appeared for the Delhi government..[Read Judgment]