A Ukrainian woman, who has accused her ex-husband of kidnapping their three-year-old son, Tuesday appealed to the Delhi High Court to “understand her feelings and her heart”.
With the help of a translator who was present in the Court, the woman submitted before a division bench of Justice Siddharth Mridul and Justice Talwant Singh that she has come to India to take her child back after the father ‘illegally’ brought him to India.
She said in the eight months that the child was taken away from her, she did not know if he was alive or not. She further said that the father did not let her speak to her son. The woman said that she has proof that the father was telling people that she and their other child (a daughter) had died in the war in Ukraine.
She went on to submit that she doesn’t understand why the father had to behave this way; as she as the mother had taken full responsibility of her son and if Vinnytsia (the Ukrainian city that the mother resides in) was in danger she would never take her son back.
Addressing the mother, Justice Mridul said: “What is important for the court to consider is the welfare of the child. This court isn’t considering interpersonal relations between the mother and the father and it is imperative that we look at the interest of the child. We can understand that it must have been difficult for you. We can understand your sentiments, but we can only examine this case from the standpoint of the child. You will get an opportunity to address the merits, however, the time is not ripe yet.”
At the beginning of the hearing, Sravan Kumar, appearing for the mother, submitted that the Ministry of Foreign Affairs has joined the hearing via video conferencing and the Court can ask it about the present situation in Vinnytsia.
To this, Justice Mridul remarked that there is evidently a crisis in Ukraine. “Your assertion is that it does not extend to where you (mother) live. We can’t proceed on that assumption,” he said.
Referring to the war-like situation in the European country, the bench also observed that the antecedent circumstance is that “this has been going (on) for a while and unfortunately there is no end in sight.” The bench said, “We can’t turn a blind eye to everything that is happening.”
The bench, thereafter, asked Kumar if it were possible for the mother to remain in India for some more time, as then the Court can grant the mother more access to her son.
Justice Mridul said, “We will have to refer the case to a child counsellor. The counsellor can observe the interaction in a manner which we can’t observe. We will have to wait for the report of the counsellor; as you know we aren’t experts on this issue. We understand that the child needs both parents and the sister, but we will have to refer it to (the) counsellor.”
Kumar submitted that the mother was ready to stay in India and was also ready to shift to a European country. The Court asked why not stay in India if she was ready to shift to Europe.
Kumar responded, “They can’t work here”. To this, the Court said this would then amount to denying the father access to the child. Kumar argued that the father is a permanent resident of Ukraine and can also work in any European country.
The bench observed that this will have to happen through an agreement between parties and the Court cannot force this condition on the father. When Kumar submitted that Ukrainian courts had granted custody to the mother, the high court said although it respects the “comity of courts”, there is a “separate process for enforcing a judgment of a foreign court”.
The Delhi High Court, thereafter, remarked: “If you would like to address finally on the petition that’s a different matter. But it would first be incumbent on the bench to get a report from the child counsellor. We can’t treat him (minor boy) like an object. He has undergone enough trauma.”
The high court ordered, “The interim arrangement… between the parties shall continue till further orders. To be clear, the father shall permit the (minor boy) to interact with his biological mother and sister today as well till 5:30 pm. Parties are directed to remain present before this court tomorrow at 2:15 pm.”
The high court requested child counsellor Dr Sanju Gambhir, who is attached to the Delhi High Court Mediation and Conciliation Centre, to remain present before the Court on November 30 for the hearing.
Pursuant to this, the Court told Kumar that for the moment they don’t need anyone from the government of Ukraine to join the proceedings as the dispute was between the parties only.
After the mother addressed the Court in person, the bench remarked that it will have to wait for the child counsellor to interact with the child and the parents. “Once we have the report of the counsellor, we will have a better insight into where the child’s interests lie,” the court observed.