Father Detained Child in Defiance of Canadian Court Order: Punjab and Haryana High Court Orders Repatriation, Says Indian Courts Cannot Be Used to Circumvent Foreign Custody Decrees
Isabella Mariam
The High Court of Punjab and Haryana at Chandigarh Single Bench, of Justice Manjari Nehru Kaul, issued a writ of habeas corpus directing the repatriation of a Canadian minor unlawfully retained in India by his father. The Court stated, "the continued custody of the child (alleged detenue) by respondent No.8 is unsustainable in law." The directive follows a binding custody order passed by the Superior Court of Justice, Ontario, Canada.
The Court further ordered, "the alleged detenue, being a Canadian national, whose Indian VISA has expired, and whose lawful and final custody rests with the petitioner pursuant to the order passed by the Canadian Court dated 13.11.2024, ought to be repatriated to Canada in the custody of the petitioner."
The petition was filed under Article 226 of the Constitution of India in the nature of habeas corpus by the biological mother of the minor, seeking the child's release from the custody of respondent No.8, her former husband. The petitioner asserted that the child, a Canadian national born in February 2021, was being unlawfully retained in India by the father in deliberate contravention of a Canadian custody order.
The petitioner and respondent No.8 were married in December 2018 in Canada and separated in January 2024 amid allegations of domestic violence. The Superior Court of Justice (Family Court), Ontario, initially allowed respondent No.8 to travel to India with the child for 2 to 3 weeks under a consent order dated July 2, 2024. Conditions included furnishing a travel itinerary and a mandatory return. However, the respondent did not return, prompting a final custody order dated November 13, 2024, granting sole custody to the petitioner and directing the child’s immediate return to Canada.
The petitioner submitted that respondent No.8 had not complied with the Canadian court’s directions, nor facilitated any communication between the child and the petitioner. Further, certified documents from Bolivian and Canadian authorities confirmed that the petitioner had no criminal antecedents. A Red Notice and an Orange Notice were issued against respondent No.8 and the child, respectively, by Interpol.
Respondent No.8 argued that he had legal custody as per Indian law under Section 6 of The Hindu Minority and Guardianship Act, 1956, and had initiated custody proceedings before the Family Court in Kharar, Punjab. He contended the Canadian order was obtained ex parte and alleged suppression of facts regarding the petitioner’s mental health and a conviction in Bolivia.
The Union of India, represented through counsel, acknowledged that respondent No.8 had not disclosed the Canadian Court’s final custody order when applying for VISA extension and had only uploaded a prior order from 2021. The child’s Indian VISA had expired, and the application for its conversion was still under process.
Justice Manjari Nehru Kaul observed, "a writ of habeas corpus is an efficacious remedy available to secure the release of a person who is unlawfully or illegally detained." In custody cases, the Court recorded that the welfare of the child must be the paramount consideration.
The judgment stated, "respondent No.8 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." It added, "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."
The Court also noted that the Canadian custody order, dated November 13, 2024, remained binding and had not been presented by respondent No.8 during VISA proceedings. It observed, "permitting respondent No.8 to retain the custody of the child despite an unequivocal foreign custody order would be antithetical to the rule of law, international comity, and above all, the welfare of the child."
Quoting precedent from Shilpa Aggarwal vs Aviral Mittal and Dr. V. Ravi Chandran vs Union of India, the Court remarked, "where a child is wrongfully removed from the country of habitual residence in defiance of a Court order, Indian Courts should ordinarily facilitate the return of the child."
The Court noted signs of forum shopping by respondent No.8 and stated, "the jurisdiction of Indian Courts cannot be attracted by the deliberate creation of artificial facts or flouting foreign judicial orders."
On evaluating the mother-child bond, the Court recorded, "the alleged detenue appeared to be comfortable in the presence of his biological mother ... their interaction came across as being natural, affectionate and reassuring."
The Court ordered the repatriation of the child to Canada with the petitioner. The judgment stated, "the continued custody of the child (alleged detenue) by respondent No.8 is unsustainable in law." It further stated, "the alleged detenue, being a Canadian national, whose Indian VISA has expired, and whose lawful and final custody rests with the petitioner ... ought to be repatriated to Canada in the custody of the petitioner."
All pending applications were disposed of.
Advocates Representing the Parties:
For the Petitioners: Mr. Abhinav Sood, Advocate with Mr. Sayyam Garg, Ms. Anmol Gupta, and Ms. Mehndi Singhal, Advocates.
For the Respondents: Mr. Lalit K. Gupta, Advocate; Mr. Amit Rana, Senior Deputy Advocate General, Punjab; Mr. Rahul Mohan, Senior 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.
Case Title: XXXX Vs Union of India and Others
Neutral Citation: 2025: PHHC:051547
Case Number: CRWP-1086-2025 (O&M)
Bench: Justice Manjari Nehru Kaul
[Read/Download order]
