HC allows Dutch woman to take 5-year-old daughter back to Netherlands

The girl was allegedly ‘illegally detained’ by her father after bringing her on a 15-day visit to the city

MUMBAI: The Bombay high court on Wednesday allowed a 37-year-old Dutch woman to take her 5-year-old daughter, who had been ‘illegally detained’ in the city by her ex-husband, back to Netherlands, observing that the best interests of the child would be served best in the north-western European country.

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A division bench of justice Ajay Gadkari and justice Shyam Chandak, however, allowed the woman’s ex-husband, a city-based lawyer, to contact the child by the terms of orders of Dutch courts.

The couple married in July 2013 in Netherlands by the Dutch laws and the girl was born on December 14, 2018. However, due to incompatibility and differences, the couple decided to part ways and applied for divorce. Their marriage was dissolved on April 28, 2023, by the District Court of East Brabant, Hertogenbosch in Netherlands. The court also held that the mother’s residence would be the main residence for the child and the husband was given visitation rights.

In August last year, the father brought the girl child to the city for two weeks, under permission from the court of East Brabant, and was supposed to return to Netherlands on or before August 19. The 44-year-old city resident, however, did not return to Netherlands on the scheduled date and stopped responding to telephone/WhatsApp calls of his ex-wife.

On petitioner’s mother on September 7 moved to the District Court of Hague, seeking the immediate return of the child to Netherlands. Though her ex-husband contested the plea, the court on November 9, directed him to bring back the child to Netherlands or hand over her custody to the woman with necessary travel documents.

After the ex-husband failed to comply with the Hague court order, the woman came to India and filed a Habeas Corpus petition before the high court through advocate Durgesh Jaiswal, claiming that her ex-husband had illegally detained the 5-year-old girl.

During the pendency of her petition, the girl child was interviewed by the judges, and on January 8, the court directed her lawyer father to hand over her child to her mother. Instead of handing over custody of the child, the lawyer fled from the city with her. Eventually, on January 9, the Versova police traced him to Daman and produced the child before the high court. On January 11, the child was handed over to her mother.

Her counsel, advocate Anil Malhotra submitted that the action on the part of the man in uprooting and disrupting the child was extremely detrimental and damaging to her best interest and welfare. The Chandigarh-based lawyer also pointed out, how the father’s action had deprived the woman of her right over the child, as a mother and natural guardian.

The woman’s ex-husband resisted the petition, claiming that after their marriage they resided in Mumbai for around 3 years and the woman was also well-settled in the city. He added that she wanted to reside in Mumbai, but because of undue interference by her mother, they went back to Netherlands in 2021 where he and the girl child were insulted by his in-laws.

He said that subsequently he was required to return to India to meet his ailing father when in February 2022, he suddenly received an e-mail from his wife, stating that she wanted a divorce from him. He then returned to the Netherlands, where his wife and in-laws did not allow him to enter their house, so he had to register as a homeless and live like that.

He added that while he was refused access to his child, the parents subjected the child to racial discrimination and abuse on account of her complexion and even told her that her father had abandoned her. She was not allowed to learn Hindi/Marathi. Thus, they wanted to cut her roots in India.

He eventually claimed that after coming to India in August last year, his daughter refused to return to Netherlands because of the because of the ‘mental abuses’ she suffered in her mother’s family, and the welfare of the child would be better subserved, if she continued to stay in India.

The court accepted arguments advanced by advocate Malhotra that the sudden disconnect of the child from her native place was “unjustifiable because she is a Dutch National.” The court said she was less than five years of age, and her main residence was the place of her mother where she was admitted to a school.

The bench said being a Dutch national, the child would get the benefits available to a domicile of the Netherlands and this would be certainly in her best interest.