Father Held Custody Without Legal Authority | Punjab And Haryana HC Orders Return Of Minor To Mother In Line With Australian Court's Recovery Order
Sanchayita Lahkar
The High Court of Punjab and Haryana Single Bench of Justice Rajesh Bhardwaj directed the immediate return of a minor child to Australia, holding that the custody of the child with the father beyond the agreed duration constituted unauthorized retention. The Court found that the mother, an Australian citizen and legal custodian under an Australian parenting order, was entitled to reclaim the child’s custody following a breach of the consent order by the father. The Court permitted the mother to be impleaded as petitioner no.2, allowing the habeas corpus plea to continue. The State authorities were instructed to assist in executing the recovery of the child in accordance with the recovery order issued by the Family Court at Australia.
The matter arose out of a habeas corpus petition filed initially by the maternal grandfather of the child, authorized by the child's mother, an Australian citizen, who was unable to travel to India at the time. Later, upon her arrival, an application was moved and allowed to implead the mother, as petitioner no.2.
The Mother and respondent no.7 (the father) were married in 2006 in Australia and were blessed with two children: a daughter born on 9 May 2009 and a son born on 14 August 2014. The couple separated in 2019, and their marriage was dissolved by a decree of divorce passed by the Family Court in Australia on 6 August 2021. A parenting order was passed on 14 November 2022 by the Federal Circuit and Family Court of Australia, which provided for equal shared parental responsibility, custody to the mother, and detailed visitation rights for the father.
With the consent of both parties, the Australian Family Court had permitted the father to bring the children to India on two occasions. The second visit, authorized by the order dated 7 January 2025, allowed the children to stay in India from 8 January 2025 to 2 February 2025. Although the daughter was returned to Australia on time, the son remained in India with the father, in violation of the said order.
Subsequently, the mother filed a petition before the Family Court in Australia, which issued a recovery order on 3 March 2025, directing the authorities in both India and Australia to locate the child and facilitate his return. The mother then authorized her father, through an email dated 19 March 2025 (Annexure A-1), to initiate legal proceedings in India. She later returned to India herself and formally joined the habeas corpus proceedings.
The petitioners contended that respondent no.7 had clandestinely retained the child in India and refused to return him despite repeated requests. They stated that the mother is well-settled in Australia with sufficient means to support the child and that keeping the child in India violated not only the Australian court order but also disrupted the child’s education. Furthermore, it was argued that the child was on a visitor visa, making his prolonged stay in India unlawful.
Respondent no.7 opposed the petition, stating that he is the biological father and the child is willingly staying with him. He also argued that India is not a signatory to the Hague Convention and that the Australian court order is not enforceable in India. He submitted that he had filed a petition under Section 7 of the Guardian and Wards Act, 1956 before the Family Court at Hanumangarh, Rajasthan, which was pending adjudication.
The State submitted a status report confirming that the father had taken the child to Rajasthan and had violated the parenting order issued by the Australian Family Court. The Court, after hearing both sides and interacting personally with the mother and the child, proceeded to examine the issues involved.
Court Observations:
"Custody of the child with the respondent-father, after expiry of the period granted by the Family Court at Australia vide consensual order dated 07.01.2025, is without any authority of law."
"The present writ petition in the form of habeas corpus, initially filed by petitioner no.1 having authorization of petitioner no.2 and after impleadment of petitioner no.2, lateron is maintainable in the peculiar facts and circumstances of the case."
"Order passed by the Family Court at Australia is enforceable by judicial intervention in India."
"This Court is having jurisdiction to entertain the present petition as the detenue child was last seen in the territorial jurisdiction of this Court and further continued retention of the child is not in consonance with the order passed by the Family Court at Australia."
"On consideration of welfare and best interest of the child, his custody deserves to be given to petitioner no.2-mother and she be allowed to take him to Australia."
"The father, who had sought permission to bring both the children to India for a specific period, is duty-bound to comply with the terms of that permission. His failure to return the son within the stipulated period is a breach of that condition and thus renders the retention unauthorized."
"Contentions raised regarding non-applicability of the Hague Convention and pendency of the Guardian and Wards Act proceedings do not dilute the enforcement of a foreign custody order through habeas corpus proceedings where the custody is found to be prima facie illegal."
"The child’s stay in India on an expired visitor visa and disruption in education indicates his continued retention is not in his welfare."
The Court directed that the present writ petition is hereby allowed. The biological mother and petitioner no.2 shall be handed over custody of the minor child along with his passport and all other travel documents currently held by the respondent-father. This transfer of custody shall be executed without any delay, strictly in adherence to the orders dated 14.11.2022, 07.01.2025, and 03.03.2025 passed by the Family Court at Australia.
The Court further directed the respondent-State to ensure full cooperation in restoring custody of the detenue to the petitioner-mother for facilitating the return of the child to Australia. Any failure to comply shall be treated as a violation of the lawful directive. It was noted that continued custody of the child by the respondent-father, now remarried and residing with his second wife, is neither supported by law nor in the child's best interest.
Accordingly, the Registry was directed to record the amended memo of parties, and all pending applications were disposed of.
Advocates Representing the Parties:
For the Petitioners: Mr. Jasjeet Singh Dhaliwal, Advocate and Mr. Goldy Jakhar, Advocate
For the Respondents: Mr. Tarun Aggarwal, Additional Advocate General, Punjab; Mr. Ashish Rawal, Senior Panel Counsel; Mr. R.S. Atwal, Advocate
Case Title: XXX vs. State of Punjab and others
Neutral Citation: 2025: PHHC:073684
Case Number: CRWP-2949-2025 (O&M)
Bench: Justice Rajesh Bhardwaj
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