'Zero-Tolerance Towards Racial Discrimination In India,' Says Bombay High Court

'Zero-Tolerance Towards Racial Discrimination In India,' Says Bombay High Court

The court said that the plea of racial discrimination adopted by the man was “completely hollow and a sham”.

Urvi MahajaniUpdated: Friday, February 09, 2024, 11:07 AM IST
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Bombay High Court | File

The Bombay High Court has frowned upon a 44-year-old man for claiming that he illegally brought his minor daughter to India from the Netherlands as they both were facing “racial discrimination”  there by the family members of his former wife, a Dutch national. The court directed the man to return the five-year-old to her mother. 

The court said that India is known for its zero-tolerance policy towards racial discrimination, but the plea of racial discrimination adopted by the man was "completely hollow and a sham". 

Court's observations

"India is undoubtedly known for its zero tolerance policy towards racial discrimination. The Respondent No.2 (man), 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,” a division bench of Justices Ajey Gadkari and Shyam Chandak said on Wednesday. 

"This way, the Respondent No.2 has lowered the image of 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 bench added. 

Petition by woman seeking custody of five-year-old daughter

The court was hearing a petition filed by the woman seeking custody of her five-year-old daughter alleging that her former husband violated an order passed by a court in the Netherlands which had granted her child’s  custody. 

In August 2023, he allegedly brought the child to India and refused to return the child. He later filed a petition in the family court in Mumbai seeking permanent custody of the child. He contended that he and his daughter were subjected to racial discrimination and hence the child has now developed a fear and was not willing to return to the Netherlands.

Refusing to believe his contention, the bench said that the claim of racial discrimination was a “sheer afterthought” and adopted by the man only to defeat the orders passed by the Dutch court.

Bench directs man to hand over custody of child

The bench directed the man to hand over custody of the child to her mother so that she could be taken back to Netherlands. It noted that if the child was not returned to the Netherlands to her mother then there was a possibility of polluting the child’s mind against her mother. 

"This is the doctrine of ‘Parental Alienation Syndrome’ that is the efforts made by one parent to get the child to give up his/ her own positive perceptions of the other parent," the bench said in a detailed order. This puts the child in the middle of a loyalty contest and then makes the child to blame one parent.

The woman emphasised that the child had been living with her since birth and that she is a Dutch national by birth.

Court's remarks

The court remarked that the overriding consideration in such cases must be the interest and welfare of the child and while deciding this, the view of one parent alone cannot be taken into consideration.

"There is great physical, mental and emotional bonding between the mother and child. Both need the company of each other. This is very important for a girl child of the tender age of five years," the judges underlined. Besides, the child has been in India only since August last year and has not set her roots here yet.

Concluding  that the man violated the order of the court in the Netherlands, the court said: “Therefore, the child deserves to return to her country.” They have also asked both the parents to abide by the conditions imposed by the court in the Netherlands with regard to access to child. 

"The child is of a tender age and thus requires equal support of both parents to see that she grows under the umbrella of diverse tradition and culture of the two countries and steps into the world as a respectable person," the judges underscored. Advocates Anil Malhotra, Anagha Nimbkar, Shreya Shrivastav, Gulistan Dubash and Durgesh Jaiswal appeared for the mother. Advocate Mihir Desai appeared for the father. State was represented by Additional Public Prosecutor SV Gavand. Advocate Subodh Desai was appointed as amicus curiae (friend of court).

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