The Delhi High Court recently upheld a family court’s order granting interim custody of a four-year-old girl to her Indian father, noting that there was a reasonable apprehension that the child's Russian mother might leave India with her, rendering ongoing legal proceedings meaningless.
A Division Bench of Justices Anil Kshetrapal and Harish Vaidyanathan Shankar dismissed an appeal filed by the mother challenging the family court’s decision to hand over the custody of the child (also a Russian citizen) to her estranged husband.
The Bench reasoned that it did not want the jurisdiction of Indian courts snatched away.
“The various concerns and considerations that need to be given primacy would only come into play once the legal system were permitted its free play, an important facet of which, would be the ability to have its decisions enforced/ implemented. If this basic foundational feature were to be absent, the entire exercise would be rendered futile,” the Court said.
The Court also noted that both the mother and the daughter hold Russian passports and that the mother had previously sought exit permits with the assistance of the Russian Embassy.
“There exists more than a reasonable apprehension that the appellant may remove herself and the child from the jurisdiction of Indian courts,” the Bench observed.
The Bench also noted a case before the Supreme Court where a Russian woman was assisted by the Russian government in leaving India with her child, even though the custody battle is pending before India’s top court. The Supreme Court had granted shared custody of the child to the mother and the Indian father.
“In the said case, despite the Hon’ble Court having granted shared custody, the proceedings presently stand frustrated as, inter alia, and as apparently observed by the Hon’ble Supreme Court, due to negligence of the concerned authorities, the child was “snatched” from the jurisdiction of the Court. The said case has received considerable media attention and, despite the Indian Government’s repeated and concerted efforts, remains wrapped in diplomatic red tape.”
Therefore, the High Court agreed with the family court’s reasoning that as per Section 6 of the Hindu Minority and Guardianship Act, 1956, a child below the age of five years should ordinarily be in the custody of the mother. Still, given the peculiar circumstances of the present case, it may be in the best interest of the child to be with the father.
The couple had married in 2013 and lived in Russia, where the daughter was born. They later moved to India and resided in Noida and Dehradun. However, they got embroiled in a custody and divorce battle following allegations of domestic abuse.
The mother took refuge at various places, including the Russian Embassy in Delhi. According to the family court order, she is currently living in Goa and working as a dance and yoga instructor, earning nearly ₹25,000 per month.
Meanwhile, the father was stated to be living in Dehradun at his ancestral property. The Court was told that he is looking after work to develop the property for commercial use and, therefore, has a stable abode and income.
After considering the case, the High Court agreed with the family court order granting custody of the child to the father.
Senior Advocate M Dutta and Advocates Aditya Guha and Anand Kumar Soni appeared for the mother.
The father was represented through Advocates Usha Mann, Deepak Gupta and Vijayat M Bhalla.
[Read Judgment]