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Synopsis

The Bombay High Court recently observed that India is known for its zero-tolerance policy towards racial discrimination in a petition filed by a Dutch mother seeking custody of her 5-year-old child, who her ex-husband illegally detained.

“India is undoubtedly known for its zero tolerance policy towards racial discrimination. The Respondent No.2, however, had the audacity to take the shelter of the defence of racial discrimination; that too against the Petitioner, who once was his wife and spent considerable years with him. This way, the Respondent No.2 has lowered the image of the India and its citizens in the view of Petitioner and her fellow nationals. We record our displeasure for this conduct as according to us, it is unethical,” the order reads.

A division bench of the high court, comprising Justice AS Gadkari and Justice Shyam Chandak, heard a petition filed by a Dutch wife who filed a habeas corpus petition against the illegal detention by her husband.

The husband, an Indian national, married the Dutch woman on July 5, 2013, after which he was registered as a Dutch resident.

On December 14, 2018, a girl child was born to the couple. Following their differences, they filed a petition in the District Court of East Brabant, Hertogenbosch, Netherlands, for divorce.

The divorce was granted on April 28, 2023, and the judgment stated that the child would be in the mother's custody.

In July 2023, the court granted permission to the husband to travel to India with the child from August 5, 2023, to August 19, 2023. Despite the wife handing over the OCI Card of the child, the husband obtained a new passport with the intention of not returning to the Netherlands.

When the husband did not return, the wife approached the District Court of Hague. The Dutch court directed the husband to bring back the child to the Netherlands or hand it over to the wife. As the husband failed to comply with these directives, the wife approached the Bombay High Court.

The husband contended before the high court that the wife’s parents subjected the child to racial discrimination and abuse based on her complexion. He added that they even told her that he had abandoned her, and she was not allowed to learn Hindi/Marathi. Thus, they wanted to sever her ties with India.

The wife contended that the parties were married according to the laws of the Netherlands and that the rights of custody over the child were to be determined by the Dutch Court. She added that the husband also filed a petition before the Family Court in Mumbai seeking custody, emphasizing that the detention of the child in India is completely illegal.

She also contended that for a girl child of 5 years, the tender age requires the lap, tender care, love, and custody of the mother, which is very essential.

In its order, the high court noted that the plea of racial discrimination was not raised until the husband filed an appeal in the Dutch Court on January 3, 2024, against the order dated November 9, 2023, requiring him to return with the child to the Netherlands. The bench said that the said defense was taken at a very belated stage and was as vague as possible.

The division bench, while ordering the handing over of custody to the wife, stated that the sudden disconnect of the child from her native country, the Netherlands, is unjustifiable because she is a Dutch national. Furthermore, she was less than five years of age at that time, and her main residence was with her mother, where she was studying in school.

However, the high court allowed the husband to meet the child if he wished to do so thrice a week for 2 hours at a predetermined place. The husband was also allowed to interact with the child for an hour on Friday, Saturday, and Sunday through video conferencing.

Case title: QRP vs State of Maharashtra & Ors