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Rajasthan HC Refuses Return Of 10YO Boy To Canada Despite Canadian Court's Orders [Read Judgment]

Apoorva Mandhani
5 Feb 2019 5:31 AM GMT
Rajasthan HC Refuses Return Of 10YO Boy To Canada Despite Canadian Courts Orders [Read Judgment]
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The Rajasthan High Court recently refused to allow the return of a 10-year-old boy to Canada, despite an order passed by a Canadian court directing his return to the country to his father.

The order was passed by a bench comprising Justice Mohammad Rafiq and Justice Goverdhan Bardhar, which opined that the child's return would not be in his best interests. It observed,
"If now he is forced to go back to Canada in the sole care of his father, is likely to psychologically disturb him, particularly when he will be required to now adapt to an education system of that country. This would adversely affect his over all growth and grooming as in the absence of his mother, his father being a busy professional, he is not likely to remain under the care of a Nanny."
The petitioner-husband had alleged that the respondent-wife had wrongly removed their son from his custody. The wife had moved from Ontario, Canada, where the three of them were residing, to New York. She had then moved to New Jersey and thereafter, to India along with the son, who was 4 years old at that time.
The court was now hearing a habeas corpus petition filed by the husband, demanding that the wife be directed to produce before the court their son, who is a permanent resident of Canada and a US citizen. He had demanded the son's return to the jurisdiction of the courts of Canada in compliance with orders passed by the Superior Court of Justice, Family Court Hamilton, Ontario.
The Canadian court had not just granted sole custody of the minor child to the husband but had also directed all law enforcement agencies including INTERPOL to enforce the custody order. Additionally, a warrant was issued against the wife, with imposition of cost of $30,000 upon her.
A contempt petition had also been filed by the husband, alleging violation of the final consent order passed in December 2015, which contained a settlement arrived at between the two at the Mediation Centre.
The high court, however, referred to several precedents to observed that the law has amply developed to rule that despite a pre-existing order for return of a child by a foreign court, the high court may decline relief for such return.
The court further asserted that the issue should be considered bearing in mind the welfare of the child as of paramount importance "whilst reckoning the pre-existing order of the foreign Court, if any, as only one of the factors and not get fixated therewith."
It explained, "While examining the issue, the Court in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return."
Thereafter, the court opined that the removal of the child from Ajmer, after he has stayed there for a few years now, would not be in his best interests, especially in view of the fact that he suffers from chronic asthma and amblyopia.
It further opined that it cannot hold the wife guilty of contempt as she cannot be solely held responsible for violation of the settlement terms.
Therefore, the habeas corpus petition and the contempt petition were both dismissed. The court, however, issued a set of directions allowing the father to maintain contact with his son.
It further clarified that till the son does not attain majority, he shall be allowed to stay in India with his mother without any hindrance. Once the child attains the age of majority, he would be entitled to make a choice in favour of acquiring Indian citizenship or retaining US citizenship, it added.
Read the Judgment Here

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