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Synopsis

The Punjab and Haryana High Court, on Tuesday, heard a writ petition filed by a mother seeking the production of her child, alleging that the father had kept the child in India in violation of a custody order issued by the Supreme Court of Justice in Ontario, Canada. The court, examining the actions of the father, remarked that Indian courts cannot be used as instruments of convenience by foreigners to evade their home jurisdictions.

The bench of Justice Manjari Nehru Kaul held, “Indian Courts cannot be reduced to instruments of convenience for litigating foreign nationals seeking to sidestep judicial proceedings in their own jurisdictions”. 

In July 2024, the Ontario Family Court permitted the father to travel to India with the child for 2-3 weeks, with the condition of sharing a travel itinerary and returning within the stipulated time. However, the father failed to inform the mother of the travel details and did not return with the child. Consequently, the mother approached the Ontario Family Court, which passed a final order granting her sole custody and directing the father to return the child within seven days, with a daily penalty of 1,000 Canadian dollars for non-compliance.

Despite the binding court order, the father neither returned the child nor facilitated any communication between the child and the mother. Alleging illegal detention and parental abduction, the mother approached the Delhi High Court seeking the child’s release.

The mother contended that she was the natural guardian and sole custodian as per the Canadian Court. She refuted the criminal allegations raised against her, presenting certified documents from Bolivia and Canada showing no criminal antecedents. She also submitted that she was financially independent, whereas the father was declared bankrupt in 2018 and had a history of abuse.  

Conversely, the father submitted that the child was brought legally under Canadian Court permission and remained in his legal custody. He filed a petition in India seeking permanent custody and claimed the Canadian orders were ex parte and obtained through suppression of facts. He argued the child had settled in India, and repatriation might cause psychological harm. He also stated that health issues delayed his return.

The court highlighted that habeas corpus was a constitutional remedy for unlawful detention. In child custody matters, the child’s welfare remained paramount, overriding legal entitlements. The court emphasized the importance of assessing the child’s welfare before enforcing foreign custody orders.

“In 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”, the court outlined. 

The court found that the father had willfully violated the Canadian Court’s conditions and misrepresented facts to Indian immigration authorities. The suppression of the final custody order while seeking visa extension constituted a serious breach.

Moreover, the court observed that the child’s continued stay in India on an expired visa was unauthorized, and retaining him in defiance of a foreign court’s directions undermined both the mother’s legal rights and the principles of international comity.

The court reaffirmed that Indian Courts ought to facilitate the return of children wrongfully retained in defiance of foreign judicial orders. The court stated, “Indian Courts, while exercising the jurisdiction of parens patriae, must be guided by considerations of fairness, equity, and international legal harmony, and must not allow their forum to be used to frustrate valid foreign judicial orders”. 

The court noted the father’s attempts at forum shopping and creating artificial facts to prolong jurisdiction. His continued retention of the child, in breach of binding foreign orders and despite the expiry of the child’s visa, amounted to illegal detention.

“Accordingly, and for all the reasons stated above, this Court holds that the continued custody of the child (alleged detenue) by respondent No.8 is unsustainable in law”, the court held. 

In view of the above, the court held that the mother had established a clear case of illegal detention and ordered the immediate release and repatriation of the child to the custody of the mother, in accordance with the Canadian Court's order.

Case Title: Camila Carolina de Matos Vilas Boas v Union (2025:PHHC:051547)