Supreme Court upholds child's return

India's Supreme Court has approved the return of a minor child to his father in Canada. The court dismissed the mother's appeal against a Delhi High Court order on August 31.

The bench of Justices MM Sundresh and Prasanna B Varale found no grounds to interfere with the high court's directive. The justices stated the special leave petition was accordingly dismissed.

The couple married in January 2015 and initially lived in California. After obtaining permanent residency, they relocated to Mississauga, Canada, in 2018. Marital disputes later arose between them.

In October 2019, the wife left Canada with their three-year-old son and returned to India without the father's knowledge.

Canadian Court's Custody Order

Following a custody petition by the father, a Canadian court issued an order in March 2020. It directed the child's return to Canada and granted the father temporary sole custody. The order also restrained the mother from removing the child from Canada's jurisdiction without consent from the father or the court.

The father then approached the Delhi High Court through his lawyer, Prabhjit Jauhar. He filed a habeas corpus petition seeking the production of his son.

In his petition, the father alleged the child was being unlawfully retained in India despite the Canadian court's order. He asserted his wife had voluntarily participated in the Canadian custody proceedings, leading to the March 2020 order after both sides were heard.

Mother's Legal Arguments

The mother contested the petition. She argued her husband was effectively seeking enforcement of a foreign custody order through the habeas corpus petition. She contended this was neither legally maintainable nor permissible.

She also argued the child had been residing in India for six years before the petition was filed. Directing his return to Canada, she claimed, would uproot him from his settled environment.

High Court's July Ruling

The Delhi High Court delivered its verdict on July 3. It directed the mother to return the child to Canada within six weeks and hand over temporary custody to the father.

In a 40-page ruling, the court held that permitting litigants to contest custody proceedings before a foreign court and then seek refuge elsewhere after an adverse ruling would undermine judicial authority across jurisdictions.

The court warned that allowing such conduct would make international child custody adjudications vulnerable to strategic evasion. It stated this would encourage the unilateral removal and retention of children across borders in the hope that the mere passage of time would defeat valid judicial orders. The court said it would incentivize litigants to evade unfavourable orders by creating fait accompli situations.

The Supreme Court's August order brings the lengthy legal battle to a close, upholding the high court's directive for the child's return.