Delhi High Court Rules Against Jurisdiction in Child Custody Case Involving Child Illegally Removed from Ukraine

New Delhi: In a significant ruling concerning international child custody disputes, the Delhi High Court has dismissed an appeal challenging a Family Court order that found it lacked territorial jurisdiction under Section 9 of the Guardians and Wards Act, 1890. The judgment, delivered by a bench comprising Justices Rajiv Shakdher and Amit Bansal, reinforced the principle that the "ordinary residence" of the minor is paramount for jurisdiction and that a party cannot benefit from unlawfully removing a child from their country of origin.

The case, filed by Akhilesh Kumar Gupta (Appellant) against Ms. Gupta Snizhana Grygorivna (Respondent No.1), involved a dispute over the guardianship and custody of their minor son, a Ukrainian citizen born in Ukraine .

Case Background

The appellant and respondent, married and subsequently divorced under Ukrainian law, had two children who are Ukrainian citizens by birth. The appellant had previously approached Ukrainian authorities in Vinnytsia seeking visitation rights, thereby submitting to Ukrainian jurisdiction. However, it was alleged that the appellant unlawfully removed the minor child from Ukraine and brought him to India.

The appellant then filed a guardianship petition before the Family Court in Delhi. The Family Court, in its judgment dated November 23, 2023, dismissed the petition, citing a lack of territorial jurisdiction. This dismissal prompted the present appeal before the High Court.

Following the Family Court's decision, the mother (Respondent No.1) obtained the release of her passport and liberty to return to Ukraine via a habeas corpus petition, though the child was initially restrained from leaving India without court permission. The High Court later directed the mother was free to leave India with the minor child upon dismissing the appeal.

Arguments Presented

Appellant's Contentions: The appellant argued that the Family Court erred by dismissing the petition solely on territorial jurisdiction grounds without considering the "best interest of the minor child." Relying on the Supreme Court judgment in Jasmeet Kaur v. Navjot Singh , it was contended that even if a child is removed from another country, Indian courts should prioritize the child's welfare. The appellant also highlighted the ongoing war in Ukraine , submitting that it would not be safe for the child to return to Vinnytsia , presenting advisories and news reports on the conflict.

Respondent's Contentions: The respondent mother countered that the Family Court correctly applied Section 9 of the Guardians and Wards Act, 1890, arguing that the minor child was not ordinarily resident in Delhi. Citing Supreme Court precedents in Ruchi Majoo v. Sanjeev Majoo and Lahari Sakhamuri v. Sobhan Kodali , she argued that Ukraine had the most intimate contact with the parties and children, and Ukrainian law should govern custody. It was emphasized that the appellant had submitted to Ukrainian jurisdiction and unlawfully removed the child, invoking the principle from Elizabeth Dinshaw v. Arvand M. Dinshaw that a party cannot benefit from their own wrongdoing. The respondent also submitted evidence, including communications from Ukrainian authorities, suggesting that essential services in Vinnytsia remained functional despite the conflict.

Court's Analysis and Reliance on Precedents

The High Court primarily focused its analysis on the issue of territorial jurisdiction under Section 9 of the Guardians and Wards Act, 1890, which mandates that a guardianship application be made to the District Court where the minor "ordinarily resides."

The Court referred to the Supreme Court's interpretation of this phrase in Ruchi Majoo , which held that "ordinary residence" is primarily a question of intention and fact, potentially a mixed question of law and fact requiring enquiry. Crucially, the Court noted the distinction between summary proceedings in a habeas corpus petition and the statutory enquiry required under the Guardians and Wards Act for determining jurisdiction.

> "It does not require much persuasion for us to hold that the issue whether the court should hold a summary or a detailed enquiry would arise only if the court finds that it has the jurisdiction to entertain the matter. If the answer to the question touching jurisdiction is in the negative the logical result has to be an order of dismissal of the proceedings..."

The High Court found the present case to be broadly covered by the Supreme Court's decision in Lahari Sakhamuri . In that case, involving US citizens and children, proceedings were initiated in the US, and the wife brought the children to India despite interim orders. The Supreme Court applied the 'doctrine of comity of courts' and held that the US courts had exclusive jurisdiction, distinguishing Jasmeet Kaur where the child was born in India.

Applying these principles, the Delhi High Court observed that the child was a Ukrainian citizen, born in Ukraine , with parents married and divorced there. The appellant had submitted to Ukrainian jurisdiction. The child's presence in India was deemed a result of the appellant's alleged illegal act and subsequent interim custody arrangement in the habeas corpus petition, not ordinary residence in Delhi. The Court reiterated the Elizabeth Dinshaw principle:

> "The appellant cannot be permitted to take advantage of his own wrong. In Elizabeth Dinshaw (supra), the Supreme Court has observed that a parent who illegally removes the child out of a country should not gain any advantage of his/her wrongdoing."

While acknowledging the "best interest of the child" as paramount, the Court clarified that this principle cannot override the statutory requirement of territorial jurisdiction under Section 9 of the Act.

Furthermore, the Court considered the "best interest of the child" on merits, even if jurisdiction were assumed for argument's sake. The Family Court had interacted with the child, who expressed a desire to return to Ukraine with his mother. The Court also noted the appellant's inability to deposit litigation expenses, suggesting financial difficulties in providing for the child. Considering the child's age (five years) and his desire to be with his mother and elder sister in Ukraine , the Court found it would be in his best interest, emotionally and financially, to return. The Court also referred to the Convention on the Rights of the Child (CRC), which supports the child's right to be with parents and return to their own country. Regarding the situation in Vinnytsia , the Court noted the Ministry of External Affairs affidavit mentioned volatility but specific incidents were limited, and advisories were for Indian nationals, not Ukrainian citizens.

Final Decision and Implications

Taking a holistic view, the High Court found no reason to interfere with the Family Court's judgment. The appeal was dismissed, upholding the finding that the Family Court lacked territorial jurisdiction under Section 9 of the Guardians and Wards Act, 1890.

Consequently, the Court ruled that the respondent mother was free to leave India with the minor child. The judgment underscores the critical importance of 'ordinary residence' in determining jurisdiction under the Guardians and Wards Act, particularly in international cases, and highlights the judiciary's reluctance to entertain petitions where the child's presence results from an alleged unlawful removal from their native country, aligning with principles of comity and preventing a wrongdoer from gaining advantage.