Parent Can't Benefit From Retaining Child In Defiance Of Foreign Court Order: Delhi High Court

The Delhi High Court has directed the return of a minor child to the father in Canada in an international custody dispute, holding that a parent cannot derive legal advantage from non-compliance with a continuing foreign court order.

A division bench comprising Justice Subramonium Prasad and Justice Harish Vaidyanathan Shankar observed that permitting a parent to retain a child in another jurisdiction and later rely upon the passage of time to claim that the child has become “settled” would encourage forum shopping and undermine judicial discipline.

“If litigants are permitted to first submit to the jurisdiction of a foreign court, contest proceedings on merits therein, and thereafter, upon receiving an unfavorable order, simply ignore the same and seek refuge in another jurisdiction, the very efficacy and authority of judicial institutions across jurisdictions would stand seriously compromised. Such conduct would render international custody adjudications susceptible to strategic evasion and would encourage unilateral removal and retention of children in foreign jurisdictions with the expectation that the passage of time alone would defeat lawful judicial orders,” the Court said.

The Bench was dealing with a habeas corpus petition filed by the father seeking custody and repatriation of his minor son to Canada in terms of an order passed by the Superior Court of Justice, Ontario, in March 2020.

He contended that the child had been taken to India by the mother without his consent in October 2019 and that the Canadian Court had subsequently directed the return of the child, while granting temporary sole custody to him.

Opposing the plea, the mother argued that the child had remained in India for nearly six years and had become socially and emotionally integrated into his surroundings. She also argued that the minor's relocation to Canada would uproot him from a settled environment.

Rejecting her case, the Bench said that the doctrine relating to a child becoming 'settled' cannot be invoked in a manner that would effectively reward a litigant for deliberate defiance of judicial orders or for creating a fait accompli through unilateral conduct coupled with prolonged non-compliance.

The Court said that once the mother consciously elected to participate in and submit to the jurisdiction of the Canadian Court, it does not now lie in her mouth to selectively disregard the binding character of the said proceedings merely because the outcome proved unfavourable to her.

“Consequently, the continued residence of the child in India, including during the pendency of the present proceedings, cannot be regarded as a circumstance arising from lawful adjudication or legitimate custody recognized by a competent court in India. Rather, it is a situation that has continued despite the subsistence of a judicial order directing otherwise,” the Court said.

It added that Courts cannot endorse a situation where a party, after having invoked the jurisdiction of a competent court and suffered an adverse determination therein, simply relocates or retains the child in another jurisdiction and thereafter invites the courts of that jurisdiction to proceed as though the prior adjudication were wholly irrelevant.

Such an approach, the Court said, would seriously undermine judicial discipline, encourage forum shopping, and incentivize litigants to evade unfavourable judicial orders by creating fait accompli situations across territorial borders.

The Bench observed that Courts must remain vigilant to ensure that their constitutional and equitable jurisdictions are not utilized as instruments for legitimizing deliberate non-compliance with judicial determinations rendered by courts of competent jurisdiction.

It said that the mother in the case cannot be permitted to approbate and reprobate simultaneously, to invoke the jurisdiction of the Canadian Court when it suited her interests and thereafter repudiate the authority of that very court once the outcome proved adverse.

The Court found no material to establish that returning the child to Canada would expose him to physical, emotional, educational, or psychological harm. It further noted that the father had sufficient financial means and had undertaken to provide accommodation and support for both the mother and child.

Allowing the plea, the Bench directed the mother to return the child to the jurisdiction of the Canadian Court within six weeks and hand over temporary custody to the father.

It also permitted the mother to accompany the child to Canada and directed that suitable residential arrangements be made.

Title: KC v. State & Anr

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