Supreme Court approves return of child to father in Canada after six years

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

The Supreme Court has approved the return of a minor child to his father in Canada after six years. The court delivered the verdict while hearing the mother’s appeal against the Delhi high court’s July 3 order directing her to return the child to Canada within six weeks and hand over temporary custody to the child’s father.

Following PR, they relocated to Mississauga, Canada, in 2018, but marital disputes arose between them. (File photo)

“We have heard the learned counsels appearing for the parties. We find no ground to interfere with the impugned order passed by the high court. The special leave petition is accordingly, dismissed,” a bench of justices MM Sundresh and Prasanna B Varale said in the August 31 order.

In the present case, the couple married in January 2015, and initially lived in California. However, following obtaining permanent residency, they relocated to Mississauga, Canada, in 2018, but marital disputes 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. On the father’s custody petition, a Canadian court in March 2020 directed that the child be returned to Canada, granted the father temporary sole custody, and restrained the mother from removing the child from Canada’s jurisdiction without his consent or the court’s permission.

Habeas corpus petition

The father then approached the Delhi high court through his lawyer Prabhjit Jauhar by filing a habeas corpus petition.

In the same, the father had sought production of his minor son alleging that the child had been unlawfully retained by his wife in India despite a Canadian court directing the child’s return to Canada and granting him temporary sole custody.

In his petition before the high court, the man had asserted that the woman had voluntarily submitted to the jurisdiction of the Canadian court by participating in the custody proceedings, following which the March 2020 custody order was passed after both sides were duly heard.

However, the mother had contended that her husband was effectively seeking enforcement of a foreign custody order through the habeas corpus petition, which was neither legally maintainable nor permissible.

She had argued that the child had been residing in India for the past six years before the petition was filed and that directing his return to Canada would uproot him from his settled environment.

On July 3, the high court had directed the mother to hand over the child’s temporary custody, holding that permitting litigants to contest child custody proceedings before a foreign court and then seek refuge in another jurisdiction after an adverse ruling would undermine the efficacy and authority of judicial institutions across jurisdictions.

In its 40-page verdict, the court further ruled that permitting such conduct would make international child custody adjudications vulnerable to strategic evasion, encourage the unilateral removal and retention of children across jurisdictions in the hope that the mere passage of time would defeat valid judicial orders and incentivize litigants to evade unfavourable judicial orders by creating fait accompli situations across territorial borders.