Supreme Court Upholds Order to Return Child to Father In Canada After Six Years

The Supreme Court has upheld an order directing the return of a minor child to his father in Canada, bringing a six-year custody dispute to a conclusion at the latest stage of proceedings. A bench of Justices MM Sundresh and Prasanna B Varale dismissed the mother’s appeal against a Delhi High Court order that required her to return the child to Canada and hand over temporary custody to his father.

The dispute began after the couple, who married in January 2015, initially lived in California before relocating to Mississauga, Canada, after obtaining permanent residency in 2018. Marital differences subsequently developed between the couple. In October 2019, the mother left Canada with their three-year-old son and travelled to India without the father’s knowledge, after which the custody dispute moved before courts in both countries.

The Canadian court, while considering the father’s custody proceedings, directed in March 2020 that the child be returned to Canada. It also granted the father temporary sole custody and restrained the mother from removing the child from Canadian jurisdiction without his consent or permission from the court. The father subsequently approached the Delhi High Court, alleging that the child was being unlawfully retained in India despite the foreign court’s custody order.

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The father filed a habeas corpus petition through his lawyer Prabhjit Jauhar, seeking the production and return of his son. He argued that the mother had participated in the Canadian custody proceedings and had voluntarily submitted to the jurisdiction of that court. According to his case, the Canadian order had been passed after both sides were heard and therefore could not be disregarded simply because the child had subsequently remained in India.

The mother opposed the plea, arguing that the father was effectively attempting to enforce a foreign custody order through a habeas corpus proceeding in India. She also contended that the child had lived in India for about six years and had become settled in that environment, making a return to Canada potentially disruptive. The Delhi High Court, however, directed her to return the child, observing that litigants should not participate in proceedings before a foreign court and then move the child to another jurisdiction after an unfavourable outcome.

The Delhi High Court had further warned that allowing such conduct could weaken international custody arrangements and encourage parents to remove or retain children across borders in the expectation that the passage of time would create a settled situation. The Supreme Court, in its August 31 order, found no reason to interfere with the High Court’s decision and dismissed the mother’s special leave petition. The ruling leaves the direction for the child’s return to Canada and temporary custody with the father in place.

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