Father Taking Child Away From Mother Despite Foreign Court Order Amounts To Unlawful Custody: Gujarat High Court

The Gujarat High Court directed a father to hand over custody of his child to the mother, after finding that he had brought the child to India unlawfully by removing him from his mother's custody granted to her by a Canadian court where the father had participated.In doing so the court observed that forcing the child to stay away from the mother who is based in Canada would be traumatic. The mother had moved the high court in a writ of habeas corpus seeking a direction to her estranged husband to produce their minor 5-year-old son and hand over his custody. She has also prayed that the father be directed to hand over the passport of the son to her and for handing over the custody of her minor son to her, since she is the legal custodian of their son as per the orders of the Ontario court of Justice, Canada.A division bench of Justice NS Sanjay Gowda and Justice DM Vyas in its order noted that admittedly the mother and father got married in Canada under the Canadian laws. This being the case, the court said, it was obvious that they would be governed by the laws under which they were married. It said that the couple chose to get married consciously under the Canadian laws, and as a consequence, their rights and obligations under that marriage would have to necessarily be governed by the Canadian laws and not by the Indian laws.Father can't invoke Indian Court's jurisdictionThe court further noted email of March 23, 2024, wherein the father categorically stated that the marriage had ended and that he did not wish to stay in Canada and had requested the mother to take care of his son. It said,"This portion of the e-mail would clearly establish that the father had consciously stated that the minor son would be with the mother and he had no objections for the same. Importantly, he has also acknowledged the fact that the legal position was that a son has to be with the mother until a certain age and he had no choice in the matter. If the father, who is a dentist by profession, categorically states at an undisputed point of time i.e., when the marital discord had erupted and the son was barely 4 years old, that the mother could have custody of the child and this was in accordance with law, it would not be open for him to now contend that the best interests of the child would be if his son stayed with him and not with the mother.It must also be relevant to state here that when the wife initiated proceedings before the Ontario Court, the father did not raise any contention before the Canadian Courts that they did not possess jurisdiction. In fact, he entered a plea and also submitted a brief in which he did not raise any objections regarding the jurisdiction of the Canadian Courts. If that is the resultant position, the father, in the light of the orders passed by the Canadian Court after he returned to India to return the child to Canada, was required to comply with the orders passed by the Canadian Courts. If the father chooses to defy an order passed by a competent Court which had the jurisdiction to decide the question of marital disputes and consequently the custody of the child, he cannot invoke the jurisdiction of this Court so as to facilitate his defiance of the order of the Canadian Court"The court said that though the father had filed a reply in the proceedings before the Canadian Court however during pendency of these proceedings, on 07.12.2025, he left Canada and brought the child along with him to India without informing the Court and "without securing the permission of his wife".After the father returned on 08.12.2025, he has sent an e-mail on 09.12.2025 stating that his son would be absent from school till the end of January, 2026. However, in this petition, he makes an averment that he has returned to India for good and would want his son to continue to stay in India along with him, the bench noted. The bench said that the father had in his earlier mail to his wife in March 2024, categorically stated to his wife that she could take care of the minor son in any manner that she thought fit, but only made a request that he be taken care of in an appropriate manner. However, the court said, the father had chosen to contend before the high court, that he was in primary custody of the son after his return to India. In view of the facts the court said that custody of the child was lawfully with the mother, and since it is not in dispute that the child was removed from Canada without the permission of the mother and brought to India, the father's custody would have to be declared as unlawful. Child's best interest with Mother in CanadaThe bench also considered what would be "the best interest of the child" and referred to various judgments on this aspect. It said, "the Apex Court has laid down the proposition, time and again, that when it comes to the question of custody of a minor in the background of a marital dispute and especially in cases where the couple ...

Father Taking Child Away From Mother Despite Foreign Court Order Amounts To Unlawful Custody: Gujarat High Court

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