Punjab & Haryana High Court slammed a Canadian father for violating a foreign custody order. Court ruled Indian jurisdiction can’t be misused to bypass valid foreign court decisions.
The Punjab and Haryana High Court recently gave a strong message in a case involving the custody of a minor child, stating that Indian courts should not become tools of convenience for foreign nationals who try to avoid legal proceedings in their own countries. Justice Manjari Nehru Kaul made these strong observations while deciding a habeas corpus petition filed by a mother whose 4-year-old son was taken to India by his father—a Canadian citizen—and not returned as per a Canadian court’s order.
The child’s parents, who are both foreign nationals and separated, had a custody arrangement decided by a Canadian court. According to the order, the father was allowed to take the child to India for only 2-3 weeks.
However, he did not return the child to Canada after the visit. Instead, he filed a case in an Indian court asking for permanent custody of the child. The High Court called this a case of “forum shopping” and strongly criticized it.
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“The approach of respondent No.8 is not only lacking in bona fides but also indicative of an effort to manipulate jurisdiction by creating fortuitous circumstances, which cannot be permitted or condoned by Indian Courts. It needs to be stated with emphasis that the jurisdiction of Indian Courts cannot be attracted by the deliberate creation of artificial facts or flouting foreign judicial orders.”
The Court added that in such situations, Indian courts must act in a way that promotes fairness, justice, and harmony with international law. They should not be used as platforms to defeat proper and valid orders passed by courts in other countries.
In this case, the biological mother of the child, who is a Bolivian citizen, approached the Indian High Court asking for directions for her former husband to produce the child. She informed the court that after the father did not return the child to Canada, a family court in Ontario gave her sole custody of the child in November 2024.
Justice Kaul said that,
the father’s continued keeping of the child in India was unjustified, especially because it was against a valid order of a Canadian court. She also said it was not in the best interest of the child to remain in India away from his mother.
“It cannot be overemphasized that even if the father is of impeccable character and fully capable of caring for the child, and even if the mother has been separated from him without justification, the welfare of the child may still demand that custody remain with the mother. Especially in cases where the child is of tender age or in fragile health, a mother’s care-driven by instinct and deep emotional bonds cannot be equaled by any substitute, however well intentioned or well compensated.”
The High Court also framed some important legal questions while dealing with the matter:
(i) Whether the writ of habeas corpus is maintainable in the peculiar facts and circumstances of the case.
(ii) Whether the custody order passed by a competent Canadian Court merits enforcement by an Indian Court.
(iii) Whether the conduct of the father, who prima facie appears to be defying the authority of Canadian Courts, warrants judicial intervention in India.
(iv) Whether the mother should be relegated to seek redress before Courts in Canada, the country of origin and habitual residence of the child (alleged detenue).
On the issue of whether the habeas corpus petition was maintainable in this case, the Court referred to judgments of the Supreme Court and observed that in such custody-related matters, the key factor is not just which parent has the legal right, but what is best for the child’s welfare.
“Therefore, the continued stay of the alleged detenue in India is unauthorized. In this backdrop, permitting respondent No.8 to retain the custody of the child (alleged detenue), despite an unequivocal foreign custody order to the contrary, would be antithetical not only to the legal rights of the petitioner but also to the rule of law, international comity, and, above all, the welfare of the child.”
The Court pointed out that,
the father’s behavior clearly showed that he was trying to avoid legal responsibility. His act of keeping the child in India, despite promising to return him, was not honest.
The Court noted,
“It is not open to a parent to disobey court orders, refuse to return the child as per undertaking, and then seek to characterise the resultant custody as lawful under Indian law.”
It further clarified that in habeas corpus cases involving children, courts must find a balance between respecting international legal cooperation (known as the comity of nations) and making sure the child’s well-being is protected.
“In habeas corpus proceedings involving custody of a minor, it is imperative to strike a balance between the principle of comity of nations and the paramount consideration of the welfare of the child. While international comity must be respected, the decisive factor must always be the best interest of the child. In the present case, it is undisputed that the alleged detenue is a Canadian national, and therefore, his welfare must be assessed in that context.”
The mother in this case was represented by Advocates Abhinav Sood, Sayyam Garg, Anmol Gupta, and Mehndi Singhal. The Union of India was represented by Advocate Lalit K Gupta. The State of Punjab was represented by Senior Deputy Advocate General Amit Rana, and the State of Haryana was represented by Senior Deputy Advocate General Rahul Mohan and Assistant Advocate General Yuvraj Shandilya.
The father, who was the respondent, was represented by Advocates SS Saron, MB Rajwade, Anuj Arya, and Naveen.
The Court, taking all facts into consideration, ruled that the child should be sent back to Canada to be in the custody of his mother. It emphasized that Indian courts should not allow jurisdiction to be misused in a way that goes against foreign court rulings and the best interests of the child.
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