Father Allegedly Detained Child Violating Canadian Court's Order: P&H HC Directs Child's Return To Mother, Says Indian Court Cant Be Misused By Foreigner

The Punjab & Haryana High Court has allowed habeas corpus plea filed by a Canadian woman seeking custody of her child from father who allegedly detained him violating Canadian Court order.

Justice Manjari Nehru Kaul remarked, "Indian Courts cannot be reduced to instruments of convenience for litigating foreign nationals seeking to sidestep judicial proceedings in their own jurisdictions. The constitutional writ jurisdiction of the Indian Courts is neither designed nor intended to be misused in this manner."

The Court observed 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, it added.

The Court was hearing a writ of habeas corpus filed by a mother represented by Advocate Abhinav Sood, seeking the release and repatriation of her minor child, who was alleged to be illegally and wrongfully retained in India by, the biological father of the child (alleged detenue).

After hearing the submissions, the Court noted that it is undisputed that the father was permitted by a Canadian Court to travel to India for a brief period of 2 to 3 weeks, along with the alleged detenue, subject to an undertaking and specific conditions.

However, it was found that the father failed to return to Canada as required and appears to have deliberately overstayed in India in breach of the undertaking given to the Canadian Court. 

The Court said, "He not only disobeyed the said directions of the Canadian Court but also obtained extension of his VISA from the Indian Government, while suppressing material facts, particularly the subsequent order dated 13.11.2024, passed by the competent Canadian Court, granting sole and final custody of the alleged detenue to the petitioner and designating her as the exclusive decision-making authority."

Justice Kaul highlighted that while the father has been granted VISA extension by the Government of India till 15.01.2026, the Indian VISA of the alleged detenue, who is a Canadian national, has admittedly expired. Therefore, the continued stay of the alleged detenue in India is unauthorized.

In this backdrop, the Court said permitting the father 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 judge observed that 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 light of the above, the Court held that the continued custody of the child (alleged detenue) by the father is unsustainable in law and said that he ought to be repatriated to Canada in the custody of the mother.

Mr. Abhinav Sood, Advocate with Mr. Sayyam Garg, Ms. Anmol Gupta and Ms. Mehndi Singhal, Advocates for the petitioner.

Mr. Lalit K. Gupta, Advocate for respondents No.1 and 2.

Mr. Amit Rana, Senior Deputy Advocate General, Punjab.

Mr. Rahul Mohan, Sr. Deputy Advocate General, Haryana and Mr. Yuvraj Shandilya, Assistant Advocate General, Haryana.

Mr. S.S. Saron, Advocate with Mr. M.B. Rajwade, Mr. Anuj Arya and Mr. Naveen, Advocates for respondent No.8.

Title: Camila Carolina de Matos Vilas Boas v. Union of India and others

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