Full Judgment Text
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 29.10.2025
Judgment pronounced on: 04.11.2025
+ MAT.APP.(F.C.) 55/2025
IRINA TANKHA .....Appellant
Through: Mr. M. Dutta, Sr. Adv. along
with Mr. Aditya Guha and
Mr. Anand Kumar Soni, Advs.
versus
ANIRUDH N. TANKHA .....Respondent
Through: Ms. Usha Mann, Mr. Deepak
Gupta and Ms. Vijayat M.
Bhalla, Advs.
CORAM:
HON'BLE MR. JUSTICE ANIL KSHETARPAL
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
J U D G M E N T
HARISH VAIDYANATHAN SHANKAR, J.
1. The present Appeal, under Section 19 of the Family Courts Act,
1984, is preferred by the Appellant against the Order dated
1
01.02.2025 passed by the learned Judge, Family Court, Patiala
2
House Courts, New Delhi , in Guardianship Petition No. 37/2024.
The said Order is a common Interim Order passed by the learned
Family Court in the Application under Section 12 of the Guardians
1
Impugned Order
2
Family Court
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:04.11.2025
17:36:00
MAT.APP.(F.C.) 55/2025 Page 1 of 14
3
and Wards Act, 1890 , whereby the interim custody of the child was
sought by the Respondent herein, as well as in Application filed by the
Appellant herein seeking recall of Order dated 27.07.2023 read with
Order dated 18.12.2023 whereby the Appellant was restrained from
removing herself and the child out of India without seeking the
Court’s prior permission.
2. The said applications were filed in the Guardianship Petition
being GP No. 37/2024 filed under Sections 7, 8 & 9 of GWA for
permanent custody.
BRIEF FACTS:
3. Shorn of unnecessary details, the brief facts, for the purpose of
adjudication of the present Appeal, are as follows:
A. The parties herein got married to each other on 10.03.2013 in
accordance with Hindu rites and ceremonies in an Arya Samaj
Mandir.
B. It is contended that the Appellant, who was a Christian by birth,
for the purposes of getting married to the Respondent,
converted to Hinduism.
C. After getting married, the parties were living together originally
in Noida and thereafter, at House No. 9/11, Circular Road,
Dalanwala, Dehradun, Uttarakhand.
D. The parties were blessed with a baby girl, namely, Ms. A, on
08.06.2021. Admittedly, the daughter of the parties was born in
Russia and holds a Russian Passport, and after her birth, the
parties travelled back to India and continued to reside in
Dehradun.
3
GWA
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:04.11.2025
17:36:00
MAT.APP.(F.C.) 55/2025 Page 2 of 14
E. The Appellant left the company of the Respondent, stating that
she had been subjected to physical and mental abuse. She took
refuge at various places, inter alia, for a brief period in Delhi, at
the Russian Embassy, and is currently residing in Goa with the
minor daughter.
F. There is also a petition seeking divorce that has been filed by
the Appellant herein and which is pending adjudication.
G. The Respondent had preferred a petition under Sections 7, 8 and
9 of the GWA, before the learned Family Court, Dehradun,
which subsequently was transferred to the learned Family
Court, Patiala House Courts, Delhi, vide order of the Hon’ble
Supreme Court dated 13.08.2024 in Transfer Petition (C) No.
87 of 2024.
H. In the interim, the learned Family Court, Dehradun, vide Orders
dated 27.07.2023 and 18.12.2023, restrained the Appellant from
leaving India with the minor daughter without the prior
permission of the Court.
I. The Appellant sought a recall of the said Orders by way of an
Application, which came to be dismissed by way of the
Impugned Order.
J. Further, the learned Family Court also disposed of the
Application filed by the Respondent seeking interim custody of
the minor daughter by allowing the same.
K. Aggrieved by the same, the Appellant has challenged the Order
of the learned Family Court before us in this Appeal.
4. It is pertinent to note that the parties have been at loggerheads,
and though attempts have been made to settle the issues between
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:04.11.2025
17:36:00
MAT.APP.(F.C.) 55/2025 Page 3 of 14
them, no headway appears to have been made.
5. To our mind, the principal question that arises for our
consideration is the extent to which the provisions of Section 6 of the
4
Hindu Minority and Guardianship Act, 1956 would have to be
accorded primacy in a factual scenario where there exists more than
reasonable apprehension of a party or parties removing themselves
from the jurisdiction of the Indian Courts.
CONTENTIONS OF THE PARTIES:
6. Learned Senior Counsel for the Appellant would strenuously
contend that the provisions of the HMG Act and in particular Section
6 thereof, provides that the natural guardian of a Hindu minor, who is
under 5 years of age, is ordinarily the mother. Section 6(a) of the
HMG Act reads as follows:
“6. Natural guardians of a Hindu minor—The natural guardians of
a Hindu minor; in respect of the minor's person as well as in
respect of the minor’s property (excluding his or her undivided
interest in joint family property), are—
( a ) in the case of a boy or an unmarried girl—the father, and after
him, the mother: provided that the custody of a minor who has not
completed the age of five years shall ordinarily be with the
mother;”
7. He would further contend that the Impugned Order does not
find any fault or deficiency in the Appellant, and without such a
finding having been rendered by the learned Family Court, the
provisions of the HMG Act would necessarily have to be given full
effect, and the child being under 5 years of age, it is the mother who
should be entitled to have the custody of the minor child.
8. Per Contra, learned counsel for the Respondent would state that
the Appellant herein is a foreign national holding a Russian passport,
4
HMG Act
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:04.11.2025
17:36:00
MAT.APP.(F.C.) 55/2025 Page 4 of 14
as is the minor child. Additionally, she would contend that the
Appellant herein has been living the life of a nomad and has an
irresponsible disposition and has no secure and stable source of
income.
9. She would further contend that the Appellant does not have the
means to take care of the child and is also the person who cannot be
trusted to take care of the minor daughter.
10. Learned counsel for the Respondent would also contend that the
Appellant and the child, both being Russian citizens, and considering
the past attempts on the part of the Appellant to secure exit permits to
flee the country, there arises a more than reasonable apprehension in
the minds of the Respondent that the Appellant would seek to flee the
country with the minor child.
11. She would thus contend that in the event of such a
circumstance, the efforts of the Respondent and all legal proceedings
as are currently pending before the Indian Courts would effectively
stand nullified.
ANALYSIS:
12. We have heard the learned counsel for the parties and have
perused the records. We are of the opinion that the Order impugned
herein, being only an Interim Order, pending final adjudication,
granting custody to the Respondent, does not require any intervention.
13. At this juncture, we deem it apposite to extract the relevant
paragraphs of the Impugned Order, which read as follows:
“10. Present is a dispute for the custody of the child who is a
citizen of Russia, Mother of the child is also Russian citizen and
therefore, if respondent is permitted to take the child out of India
there is a possibility that respondent and the child may not come
back to India and thereby it would render the present case otiose.
The apprehension of her not coming back to India gets further
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:04.11.2025
17:36:00
MAT.APP.(F.C.) 55/2025 Page 5 of 14
fortified by noting the fact that respondent does not have any other
interest in India either in the form of asset or durable lucrative job
or any relative. Therefore, in this circumstance the child in
question cannot be allowed to be taken out of Indian territory till
the issue of permanent custody is adjudicated by the Court. Family
court under the Family Court Act has power of both Civil Court or
Criminal Court as it has all the power under Code of Civil
Procedure and Code of Criminal Procedure and depending upon
the fact and circumstance of the case Court does has power to
restrain a party from living its jurisdiction. Hence, the contention
that family court in custody petition cannot pass such order is not
tenable in law.
11. As far as interim custody/visitation is concerned admittedly
petitioner is father of the child and the child has right to be loved
and cared by her father as well. Presence of father in the life of the
child is also necessary for her over all growth. Petitioner
undisputedly has fixed place of abode in Dehradun whereas
respondent does not have so in India and she is trying to go out of
India. Petitioner is currently stated to be looking after huge
ancestral property in Dehradun and looking after the work of
developing them for commercial purpose. He is living in his own
house in Dehradun with his uncle (elder brother of his father)
whose children are settled abroad. Petitioner's parent often visit
him and lives with him too for months as they sometime live in
Noida or out of India to their other children.
There is domestic help at home of the petitioner. He mostly work
from home and goes out only for some meeting etc. All these were
told by the petitioner when this court sought to know about all
these during the course of argument. Respondent alter feeing from
her matrimonial home got shelter in Russian Embassy, thereafter
she shifted to Gurgaon and currently she is stated have shifted to
Goa. There she is working as Yoga and Dance instructor on
contractual basis and getting salary of Rs. 25,000/- per month. She
is stated be living alone there with daughter and has three hours of
work in school from 9AM to 12 noon.
12. Ordinarily, minor below the age of 5 years should remain in the
custody of the mother but if circumstance so warrant the custody of
the child below the age of 5 years could be given to father as well.
In the present case keeping in mind the aforesaid facts in mind, this
court is of the opinion that interim custody of the child be given to
father as he is in settled position with roots in the society and
therefore would be in a position to provide stable life to the child in
question even during the pendency of the petition. Petitioner is also
man of means and he would get her admitted to a school in
Dehradun whereas respondent not having permanent place and
stable job would be living life of instability and is also looking for
opportunity to go out of India with no clear intention/goal to come
in India for any purpose. Therefore, this court is of firm view that
in would be in the interest and welfare of the child that during the
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:04.11.2025
17:36:00
MAT.APP.(F.C.) 55/2025 Page 6 of 14
pendency of the present petition interim custody of the child in
question be given to petitioner father.
13. Hence, respondent is hereby directed to hand over the interim
custody of the child within 15 days from today whereafter the child
shall remain in the custody of the petitioner at Dehradun till the
present petition is decided on merits. Petitioner would make effort
to get the child admitted in a good but nearby school in Dehradun
in the current or next academic session whichever is possible at the
earliest.
14. Petitioner would allow the respondent video calls access to the
child everyday in the evening for about 15-30 minutes. Petitioner
would also allow the physical meeting of the child with respondent
every weekend at Dehradun with overnight custody between
Saturday and Sunday, if respondent wishes to avail them al
Dehradun. If respondent avails visitation in Dehradun, petitioner
will hand over the custody of the child on Saturday around noon
time and respondent will hand over the custody of the child back to
the petitioner on Sunday by 5 P.M. However, respondent would
remain under restrain from taking the child out of Dehradun.
15. In case, after handing over the interim custody of the child
pursuant to this order, respondent wishes to settle down in
Dehradun, petitioner would make arrangement of a good 1BHK in
safe and secure locality in Dehradun for her, at his own cost either
on rent or on purchase and shall provide her with Rs. 10,000/- per
month for her maintenance besides the rent for 1BHK in Dehradun.
However, this order would not affect the prerogative/discretion of
the Government of India to grant citizenship to the respondent or to
the child, if any such prayer is made to it later.
16. After handing over the interim custody of the child in question
to the petitioner, there would be no restriction on the respondent to
leave India and come in India so far as the present matter and
present court is concerned. However, this order will not affect the
jurisdiction of concerned Authority to deny entry/exit of the
respondent to/from India for any other lawful reasons.”
14. As is apparent, the primary aspect that seems to have weighed
in the mind of the learned Family Court is the apprehension that the
Appellant and the child may seek to exit Indian shores. The learned
Family Court also takes note of the fact that the Appellant herein has
no assets or any other liability to, in any manner, continue to remain in
India.
15. The learned Family Court in the Impugned Order has also taken
note of the relative stability and permanence that the Respondent has
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:04.11.2025
17:36:00
MAT.APP.(F.C.) 55/2025 Page 7 of 14
and will be able to provide to the minor daughter. The learned Family
Court has analysed the fact that the Respondent is a man of
considerable means and has familial support. The learned Family
Court has also analysed the fact that the Appellant herein does not
appear to have any permanent employment or means to support a
lifestyle; as also the fact that, given her current employment status, it
may be preferable, keeping in mind the relative positions as between
the Appellant and the Respondent, for the minor, to be in the interim
custody of the Respondent.
16. It is in view of these factual aspects that the learned Judge
concluded that, though ordinarily a child below the age of 5 years
should be in the custody of the mother but given the peculiar
circumstances of the present case, it may be in the best interest of the
child to be with the Respondent. Resultantly, the learned Family Court
concluded that the interim custody of the child be handed over to the
Respondent, but with various caveats built into it. The Petitioner’s
interests were safeguarded to a fair extent, and the same is clearly
evident from the directions passed in Para Nos. 14 to 17 of the
Impugned Order.
17. The learned Family Court, in our view, has rightly kept in mind
the welfare and best interest of the minor daughter of the parties,
which is of paramount importance. The Hon’ble Supreme Court has
time and again, through various judgements, emphasised on the fact
that the welfare of the child is paramount and the same would prevail
over the parental rights of the parties. The Hon’ble Supreme Court has
laid down the principle that paramount consideration is the welfare
and best interest of the child, which far outweighs the competing
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:04.11.2025
17:36:00
MAT.APP.(F.C.) 55/2025 Page 8 of 14
5
rights or entitlements of either parent in Sheoli Hati v. Somnath Das ,
which reads as follows:
“ 17. It is well settled that while taking a decision regarding custody
or other issues pertaining to a child, welfare of the child is of
paramount consideration. This Court in Gaurav
Nagpal v. Sumedha Nagpal , had the occasion to consider the
parameters while determining the issues of child custody and
visitation rights, entire law on the subject was reviewed. This
Court referred to English Law, American Law, the statutory
provisions of the Guardians and Wards Act, 1890 and provisions of
the Hindu Minority and Guardianship Act, 1956, this Court laid
down following in paras 43, 44, 45, 46 and 51 : (SCC pp. 55-57)
“ 43 . The principles in relation to the custody of a minor
child are well settled. In determining the question as to
who should be given custody of a minor child, the
paramount consideration is the “welfare of the child” and
not rights of the parents under a statute for the time being
in force.
44 . The aforesaid statutory provisions came up for
consideration before courts in India in several cases. Let
us deal with few decisions wherein the courts have applied
the principles relating to grant of custody of minor
children by taking into account their interest and well-
being as paramount consideration.
45 . In Saraswatibai Shripad Vad v. Shripad Vasanji Vad
the High Court of Bombay stated : (SCC OnLine Bom) …
It is not the welfare of the father, nor the welfare of the
mother, that is the paramount consideration for the
court. It is the welfare of the minor and of the minor alone
which is the paramount consideration …’
46 . In Rosy Jacob v. Jacob A. Chakramakkal , this Court
held that object and purpose of the 1890 Act is not merely
physical custody of the minor but due protection of the
rights of ward's health, maintenance and education.
The power and duty of the court under the Act is the
welfare of minor. In considering the question of welfare of
minor, due regard has of course to be given to the right of
the father as natural guardian but if the custody of the
father cannot promote the welfare of the children, he may
be refused such guardianship.
*
51 . The word “welfare” used in Section 13 of the Act has
to be construed literally and must be taken in its widest
sense. The moral and ethical welfare of the child must also
weigh with the court as well as its physical well-being.
5
(2019) 7 SCC 490.
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:04.11.2025
17:36:00
MAT.APP.(F.C.) 55/2025 Page 9 of 14
Though the provisions of the special statutes which govern
the rights of the parents or guardians may be taken into
consideration, there is nothing which can stand in the way
of the court exercising its parens patriae jurisdiction
arising in such cases.”
(emphasis in original)
18. Every child has right to proper health and education and it is
the primary duty of the parents to ensure that child gets proper
education. The courts in exercise of parens patriae jurisdiction
have to decide such delicate question. It has to consider the welfare
of the child as of paramount importance taking into consideration
other aspects of the matter including the rights of parents also. In
reference to custody of a minor, this Court had elaborated certain
principles in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha
Dolikuka , wherein this Court again reiterated that the welfare of
the child is of paramount importance. In para 17, following was
laid down : (SCC p. 565)
“ 17 . The principles of law in relation to the custody of a
minor appear to be well-established. It is well-settled that
any matter concerning a minor, has to be considered and
decided only from the point of view of the welfare and
interest of the minor. In dealing with a matter concerning a
minor, the court has a special responsibility and it is the
duty of the court to consider the welfare of the minor and
to protect the minor's interest. In considering the question
of custody of a minor, the court has to be guided by the
only consideration of the welfare of the minor.”
…..”
(emphasis supplied)
18. We, on a conspectus of the facts and after going through the
analysis of the learned Family Court and the law laid down by the
Apex Court, are of the opinion that no interference is necessitated and
the reasons for which are elaborated hereinafter. We would, in
addition to what has already been set out by the learned Judge, hold as
follows:
a. Evidently, the Russian Embassy had, in the year 2023, sought to
assist the Appellant herein in securing exit permits for herself
and the minor child for the purpose of leaving the country.
b. Also of import are the contents of the Legal Notice dated
25.09.2023, wherein admittedly, the Appellant has stated that
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:04.11.2025
17:36:00
MAT.APP.(F.C.) 55/2025 Page 10 of 14
she was no longer interested in staying in India and desired to
go back to Russia. She has stated so at least two places as
follows:
“…4. My Client was no longer interested in living in
India and desired to go back to Russia to be with her
family. Further, she is without any funds to lead her daily
life and provide for her minor child.
9. My client has no desire to live in India . She has no
means financial or otherwise to support her life and stay at
India. She is desirous of returning back to her home
Country / Russia, to be with her family and aged
Mother, who is also ailing of ill-health. ”
c. As is apparent from the extracted paragraphs of the said legal
notice, not only was the Appellant desirous of leaving India, but
it would appear that she was choosing to do so conclusively,
meaning thereby that perhaps she were never to return to India.
d. We also take judicial notice of various events that have
transpired in the recent past and which had led to the Hon’ble
Supreme Court expressing their anguish for the manner in
which a national of the same Country was prima facie seen to
have been assisted by the concerned Country’s embassy
officials to flee Indian shores. The said matter titled as Viktoriia
6
Basu Vs. The State of West Bengal remains pending before
the Hon’ble Supreme Court. 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
6
W.P (Crl) No. 129/2023
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:04.11.2025
17:36:00
MAT.APP.(F.C.) 55/2025 Page 11 of 14
considerable media attention and, despite the Indian
Government’s repeated and concerted efforts, remains wrapped
in diplomatic red tape.
e. While keeping in mind the various principles governing issues
of the present nature, and especially the primacy accordable to
the “best interest” of the child, we also need to parallelly,
remain cognisant, that in order to do so, Courts in India would
have to be enabled with the necessary wherewithal to
effectively adjudicate such issues, and upon such adjudication,
effectuate the same. The entire process of adjudication would be
rendered meaningless if Courts were unable to implement or
enforce any orders/ Judgment that were the resultant of the
adjudicative process.
f. 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.
g. In order to ensure that these concerns are able to be effectively
effectuated, and to ensure that the jurisdiction of Indian Courts
is not “snatched away”, we are of the view that the impugned
order would not commend itself to any interference.
h. Recent events, coupled with the facts and circumstances of the
present case, lends to us a fairly high apprehension that in the
event we interfere with the impugned Order, and, if the mother
and minor daughter were to exit Indian shores, it would be an
uphill task to get the orders/ Judgment(s) of Indian Courts
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:04.11.2025
17:36:00
MAT.APP.(F.C.) 55/2025 Page 12 of 14
enforced.
i. It is also pertinent to note that India is not a Member of the
7
Hague Conference on Private International Law , while the
Russian Federation is a member of the same. This would
necessarily imply that for the purpose of enforcing any direction
or Judgement passed by an Indian Court, the only manner to do
so would be by international dialogue between the two nations
through diplomatic channels.
j. We also take note of the fact that the minor daughter has stayed
in India since almost immediately after her birth and is being
raised during her formative years here in India. Considering the
same, if handing over the custody to the Appellant herein would
mean that the minor daughter would be uprooted completely
from the place and country she has been residing in and having
adjusted to its environment, the same would not be in the best
interest of the child. We are also guided by various precedents
regarding this issue, including in the judgement of Prateek
8
Gupta v. Shilpi Gupta , wherein the Apex Court based the
considerations on the fact that child removed by father, from
United States (U.S.) to India, had already spent two and a half
years in India and relocation back to United States would be
unfavourable to his well-being as the child was in formative
years and had adjusted to the environment. The United States
court in this case had issued an order for return of child and
custody being handed over to the mother. But the Hon’ble
Supreme Court stated that such foreign orders and principle of
7
Hague Convention
8
2017 SCC OnLine SC 1421.
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:04.11.2025
17:36:00
MAT.APP.(F.C.) 55/2025 Page 13 of 14
comity and close contact can be ignored for the larger good i.e.
the welfare of the child being of paramount consideration.
19. We also believe that, given the stage at which the proceedings
currently rest, and in view of the admitted position that the Appellant
is acutely desirous of leaving the country, the Impugned Order is not,
in any manner, to be faulted.
20. In view of the afore-stated circumstances and position of law,
we are of the considered opinion that no interference is required.
21. Accordingly, the present Appeal, along with pending
application(s), if any, is dismissed.
ANIL KSHETARPAL, J.
HARISH VAIDYANATHAN SHANKAR, J.
NOVEMBER 04, 2025/rk/va
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:04.11.2025
17:36:00
MAT.APP.(F.C.) 55/2025 Page 14 of 14