IMPORTANT POINT
The main legal point established in the judgment is the application of territorial jurisdiction under the Guardians and Wards Act, 1890, and the consideration of the best interest of the child in the context of international custody disputes.

JUDGMENT

Amit Bansal, J. - The present appeal has been filed seeking setting aside of the judgment dated 23rd November, 2023 passed by the learned Judge, Family Court, Patiala House Courts, New Delhi (hereinafter referred to as "Family Court"), whereby the guardianship petition filed on behalf of the appellant/father (hereinafter referred to as "appellant") seeking custody of the appellant's son was dismissed.

2. Brief facts giving rise to the present appeal are as under:

2.1. The appellant was married to the respondent no.1 in Vinnytsia City, Ukraine on 18th November, 2000. From the said wedlock, two children were born; a female child on 24th November, 2002 and a male child on 12th February, 2019. Both the children were born in Ukraine and are thus, citizens of Ukraine by birth.

2.2. Subsequently, marital disputes arose between the parties and the respondent no.1 approached the Vinnytsia District Court seeking dissolution of the marriage. The marriage was dissolved vide Decision dated 6th May, 2021, passed by the Vinnnytsia District Court, Ukraine.

2.3. The appellant approached the Executive Committee, Vinnytsia City Council, seeking visitation rights in respect of their minor son, which was allowed vide a Decision dated 15th July, 2021. In terms of the said Decision, the appellant was granted supervised visitation for a period of two months, followed by unsupervised visitation.

2.4. On 24th February, 2022, war broke out between Ukraine and Russia. The appellant on 23rd March, 2022 took the minor son from Ukraine and reached India on 28th March, 2022. The minor child was around three years old at that point of time.

2.5. This prompted the respondent no.1 to come to India and approach this Court on 27th October, 2022 by filing a habeas corpus petition, being W.P.(Crl.) No.2537/2022, praying that the appellant produce the minor child. Vide order dated 28th July, 2023 a coordinate bench of this Court transferred the interim custody of the minor child from the appellant to the respondent no.1, subject to the respondent no.1 surrendering her passport and the passport of the minor child with the Station House Officer (SHO), Police Station Vasant Kunj. It was also directed that the minor child shall not be removed from the jurisdiction of this Court.

2.6. The aforesaid writ petition was disposed of on 20th October, 2023, observing that the relief sought for in the said petition, i.e., habeas corpus had already been granted. The Court observed that the issue of interim custody or visitation rights in respect of the minor child has to be dealt with by the concerned Family Court and granted liberty to the appellant to approach the appropriate forum. Further, the Court also directed the respondent no.1 to not leave the country for the next three weeks, i.e. till 10th November, 2023.

2.7. In view of the aforesaid liberty, the appellant filed a guardianship petition being G.P. No. 58/2023 under Sections 7 and 25 of the Guardians and Wards Act, 1890 before the Family Court, seeking grant of permanent custody of the minor child.

2.8. In the said petition, the appellant also sought a relief that the respondent no.1 and the minor child be restrained from leaving the country. Vide order dated 7th November, 2023, the Family Court directed the respondent no.1 to file her reply in the said petition and posted the matter for 17th November, 2023. However, the Family Court did not grant ad interim relief restraining the respondent no.1 from leaving the country along with her minor child.

2.9. The appellant challenged the aforesaid order by filing an appeal, being MAT.APP.(F.C.) No.337/2023 before this Court. The said appeal was disposed of by a Co-ordinate Bench vide order dated 10th November, 2023, by taking on record the submission of the counsel appearing on behalf of the respondent no.1 that the respondent no.1 shall not seek release of her passport as well as the passport of the minor child till the next date of hearing before the Family Court, i.e., 17th