Full Judgment Text
$~48
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20.10.2023
+ W.P.(CRL) 2537/2022
MS GUPTA SNIZHANA GRYGORIVNA ..... Petitioner
Through: Mr.Vivek Kohli, Sr. Adv. with
Ms.Nimita Kaul & Mr.Praveen
Kumar Singh, Advs. with petitioner
in person along with her son.
versus
UNION OF INDIA AND ORS. ..... Respondent
Through: Mr.Ajay Digpaul, CGSC with
Mr.Kamal Digpaul, Ms.Ishita Pathak
& Ms.Swati Kwatra, Advs. for
Respondent No.1/UOI.
Mr.Sanjay Lao, Standing Counsel
(Crl.) with Mr.Shivesh Kaushik &
Mr.Abhinav Kr. Arya, Advs. for
State.
Mr.K.P. Mavi, Ms.Chitra Gera &
Mr.Dinesh Pratap Singh, Advs. for
Respondent No.5 with R-5 in person.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MS. JUSTICE SHALINDER KAUR
J U D G M E N T (oral)
W.P.(Crl.) 2537/2022 Crl.M.A.29145/2023
1. The relief sought in the present petition is to direct respondent nos.1
to 4 to trace and produce three years old Master Gupta Sameer
Akhileshovych and hand over his custody to the petitioner/mother.
2. When this petition came up for hearing before this Court vide order
dated 02.11.2022, directions were issued to Delhi Police to locate
W.P.(CRL) 2537/2022 Page 1 of 4
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:21.10.2023
11:57
respondent no.5 and three years old minor son of the parties. On the next
date of hearing, i.e. 14.11.2022, respondent no.5 appeared with minor son
before this Court. Thereafter, present petition has been considered from time
to time with regard to the interim custody of the child.
3. Vide order dated 28.07.2023, this Court had taken elaborative note of
the facts of the present case. Pertinently, the child of the parties was born on
12.02.2019 in Ukraine. The District Court, Vinnystia region had granted
decree of divorce to the parties on 06.05.2021. Respondent no.5/father had
filed an application with regard to the involvement and contact arrangements
in relation to Master Samir Akhileshovych Gupta. However, respondent
no.5 on the pretext of exercising his right to un-supervised contact with
Master Samir Akhileshovych Gupta, abducted the latter in gross violation to
the decision of the Vinnytsia City Council dated 15.07.2021 and crossed the
border on the 24.03.2022 into Romania from where he brought Master
Samir Akhileshovych Gupta back to India. On 31.05.2022, the petitioner
herein obtained a Judgment in Default from the Vinnytsia District Court
which was informed that Master Samir Akhileshovych Gupta was living in
India with respondent no.5. This led to the filing of the present habeas
corpus petition by the petitioner.
4. During the course of proceedings of the present petition, this Court on
several occasions vide orders dated 22.11.2020, 24.11.2022, 25.11.2022,
28.11.2022, 29.11.2022, 09.01.2023, 19.01.2023, 08.02.2023 and
24.04.2023 had given visitation rights to the petitioner in respect of her
minor son. Further vide order dated 28.07.2023, interim custody in respect
of minor child of the parties was given to the petitioner subject to following
conditions:
W.P.(CRL) 2537/2022 Page 2 of 4
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:21.10.2023
11:57
i. Ms. Gupta Snizhana Grygorivna will reside at Flat No.-4007,
D-4, Vasant Kunj, New Delhi-110070 and categorically
undertake not to remove Master Samir Akhileshovych Gupta
from the territorial jurisdiction of this Court without prior
permission.
ii. Ms. Gupta Snizhana Grygorivna will surrender her passport as
well as that of Master Samir Akhileshovych Gupta to the SHO,
Police Station, Vasant Kunj forthwith.
5. Petitioner gave undertaking that she will produce the child before the
Court on 22.08.2023.
6. The respondent no.5/husband has come up with an application being
Crl.M.A. 291445/2023, inter alia stating that on 22.08.2023, the Division
Bench had not assembled and since 28.07.2023 custody of the child is with
the petitioner/mother.
7. Respondent no.5/applicant has further averred in the said application
that on 11.09.2023, this Court had granted visitation rights to the respondent
no.5/father to visit the child between 02.00 PM to 05.00 PM on every
Monday, Wednesday and Friday w.e.f. 11.09.2023 till the next date of
hearing i.e. 18.01.2023. However, on 18.01.2023, the Division bench had
not assembled, since visitation rights were given till 11.09.2023, petitioner
as well as her counsel restricted the respondent No.5 to meet his child.
Hence, by way of the application, respondent No.5 is seeking extension of
order dated 11.09.2023 till further orders as well as to meet his child on the
day of Dusshera.
8. Admittedly, present petition has been filed under the provisions of
Article 226 & 227 of the Constitution of India read with Section 482 Cr.P.C.
under the nature of hebeas corpus seeking production of son of the parties.
W.P.(CRL) 2537/2022 Page 3 of 4
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:21.10.2023
11:57
Thus, the aforementioned application seeking interim custody or visitation
rights of the child is not maintainable.
9. The relief sought in the present petition has already been granted and
no further order is required to be passed and the issue of interim custody or
visitation rights in respect of the minor child, parties are at liberty to have
appropriate recourse as per law.
10. Respondent no.5/husband apprehends that since the petitioner/mother
who is a Ukrainen citizen and is having the custody of the child that she may
flee the country. Since the custody of the child is with the mother and issue
of custody and visitation rights of the child has to be dealt with by the
learned Family Court, liberty is granted to the respondents to approach the
appropriate forum within three weeks from today.
11. Till then, petitioner is directed not to leave the country at least for
three weeks.
12. The date already fixed i.e. 07.11.2023 stands cancelled.
(SURESH KUMAR KAIT)
JUDGE
(SHALINDER KAUR)
JUDGE
OCTOBER 20, 2023/ab
W.P.(CRL) 2537/2022 Page 4 of 4
Signature Not Verified
Digitally Signed
By:ALKA BOBAL
Signing Date:21.10.2023
11:57