HC permits Ukrainian mother to leave with child brought to India by estranged spouse

The Delhi High Court on Tuesday permitted a Ukrainian woman to leave the country along with her minor son who was ''illegally'' brought here by her estranged Indian husband after the war broke out between Ukraine and Russia.

A bench headed by Justice Rajiv Shakdher said it was not in the best interest of the five-year-old boy to be separated from his mother and his elder sister, who live in Vinnytsia in Ukraine, adding that a parent who illegally removes a child from a country should not gain any advantage of his wrongdoing.

The court, while upholding a family court's order which held that it had no territorial jurisdiction over the custody battle between the parties, recorded that the parties got married and divorced in Ukraine, the minor child was a citizen of Ukraine and the father was given visitation rights by the Ukrainian authorities after he filed a plea before them.

Considering the relevant international conventions on the issue, the court thus opined, ''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.'' ''We are of the opinion that the usual place of residence of the child is Vinnytsia, Ukraine. The child 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,'' the bench, also comprising Justice Amit Bansal, noted.

The appellant father argued that on account of the war, the situation in Ukraine was grave and it was not in the best interest of the child to return.

The father had brought the minor here in March 2022 in the wake of the Russia-Ukraine war, prompting the mother to also come to India.

Earlier, it was directed that the minor child will not leave the country without the prior permission of the court during the pendency of the proceedings.

In the order, the court stated that merely because the minor child has been living in Delhi with his mother pursuant to his custody being handed over to her in another proceedings, it would not make the boy an ''ordinary resident'' for the purpose of exercising jurisdiction over him and the the appellant cannot be permitted to take advantage of his own wrong.

''The appellant, in violation of the decision passed by the competent authority in Ukraine, had removed the minor child from Ukraine and brought him to India. Therefore, the Family Court has correctly observed that the presence of the minor child in India was a result of an illegal act of the appellant,'' the court observed.

It also noted that when the appellant was asked to deposit Rs 1.5 lakh towards litigation expenses, he expressed his inability to pay on account of financial distress.

''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 court concluded.

The court also said the advisories issued by the Indian Embassy asking ''Indian Nationals'' to leave Ukraine was not applicable to the present case as the mother and the minor child were citizens of Ukraine.

''Accordingly, taking a holistic view of the matter, we are not inclined to interfere with the impugned judgement. The present appeal is dismissed. Resultantly, the respondent no.1 (mother) shall be free to leave India with the minor child,'' the court ordered.

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