Punjab and Haryana High Court: In a habeas corpus petition filed by a Canadian national seeking custody of her minor son from her husband who had come to India with their son but overstayed in violation of court orders passed by the Ontario Family Court (‘Canadian Court’), a Single Judge Bench of Manjari Nehru Kaul, J., allowed the petition, holding that the continued retention of the minor son by the husband was unjustified, contrary to the orders of a competent foreign Court, violative of the principles of comity of Courts, and not conducive to the welfare of the child. The Court also held that the minor son ought to be repatriated to Canada in the custody of the wife.
Background
In 2018, the petitioner-wife and respondent 8-husband married in Durham, Ontario, Canada. The alleged detenue-minor son was born in 2021 in Canada and holds Canadian nationality. Owing to marital discord and alleged acts of domestic violence, the wife separated from the husband in January 2024.
On 02-07-2024, by a consent order, the Canadian Court permitted the husband to travel to India with their minor son for a short visit of two to three weeks, subject to the condition that he furnish his wife with a full travel itinerary and return to Canada thereafter.
The husband did not inform his wife of the date and details of travel and, further, did not return to Canada with their minor son after the agreed time. Aggrieved, the wife approached the Canadian Court, which passed a final order (‘custody order’), granting sole custody of the minor son to the wife, directing the husband to return him to the wife within seven days and facilitate daily virtual communication between his son and wife. Despite the categorical and binding directions of the Canadian Court, the husband neither returned the minor son to Canada nor facilitated any interaction between him and his wife.
Aggrieved, the wife filed the present petition.
Issues
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Whether the writ of habeas corpus is maintainable in the peculiar facts and circumstances of the case;
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Whether the custody order passed by a Canadian Court merits enforcement by an Indian Court;
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Whether the conduct of the husband, who prima facie appears to be defying the authority of Canadian Courts, warrants judicial intervention in India;
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Whether the wife should be relegated to seek redress before Courts in Canada, the country of origin, and habitual residence of the child.
Analysis and Decision
At the outset, the Court stated that regarding the writ of habeas corpus in the context of child custody, the determinative factor is not the mere legal entitlement of one parent over the other but rather the paramount consideration of the welfare and best interest of the child.
Stating this, the Court noted that in the present case, the husband was permitted by the Canadian Court to travel to India for a brief period along with his minor son, subject to an undertaking and specific conditions. However, the subsequent sequence of events revealed that he failed to return to Canada as required and appeared to have deliberately overstayed in India in breach of the undertaking given to the Canadian Court. He not only disobeyed the said directions of the Canadian Court but also obtained an extension of his visa from the Indian Government, while suppressing material facts, particularly the subsequent custody order passed by the Canadian Court, granting sole and final custody of the minor son to the wife and designating her as the exclusive decision-making authority.
The Court added that the factum of withholding this crucial custody order was admitted by the Union before the Court and even in the Union’s reply, only the first order granting the custody to the husband was mentioned, mention of the latter order granting travel permission to the husband was missing.
The Court further noted that although the husband’s visa was extended, the minor son’s visa had admittedly expired. Therefore, the continued stay of the minor son in India was unauthorised. Thus, the Court held that in this backdrop, permitting the husband to retain the custody of the minor son, despite an unequivocal foreign custody order to the contrary, would be antithetical not only to the legal rights of the wife but also to the rule of law, international comity, and, above all, the welfare of the child.
The Court stated that the prima facie conduct of the husband in suppressing critical facts while seeking to prolong his stay in India, retaining the minor son in defiance of the directives issued by the Canadian Court, and now facing allegations of parental abduction in Canada, clearly points to an attempt to evade legal accountability. The approach of the husband is not only lacking in bona fides but also indicative of an effort to manipulate jurisdiction by creating fortuitous circumstances, which cannot be permitted or condoned by Indian Courts. The Court emphasised that the jurisdiction of Indian Courts could not be attracted by the deliberate creation of artificial facts or flouting foreign judicial orders.
The Court also noted that the husband instituted proceedings before the Principal Judge, Family Court, Kharar, Mohali, seeking permanent custody of the minor son, clearly reflecting his unwillingness to return to Canada. Such conduct unmistakably suggests an attempt at forum shopping by the husband.
Rejecting the contention that the present dispute is a custody battle and not illegal detention, the Court stated that the minor son’s retention in India in violation of lawful orders passed by the competent Court coupled with the expiry of his Indian VISA, rendered such custody prima facie illegal. The Court remarked, “It is not open to a parent to disobey Court orders, refuse to return the child as per undertaking, and then seek to characterise the resultant custody as lawful under Indian law.”
The Court further stated that 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 child’s welfare. While international comity must be respected, the decisive factor must always be the best interest of the child.
Regarding the conduct of the minor son with the wife, the Court noted that during the proceedings, the son appeared to be comfortable in the presence of his biological mother i.e., the wife, and their interaction came across as natural, affectionate and reassuring. There were no visible signs of distress, alienation, or apprehension that could have warranted the Court to doubt the safety of the child or his emotional well-being in the custody of the wife. Further, the Court noted that the Canadian Court had not only vested the wife with final custody but had also declared the primary place of residence of the minor son to be in Toronto, Canada.
The Court added that even if the father is of impeccable character and fully capable of caring for the child, and even if the mother has been separated from him without justification, the welfare of the child may still demand that custody remain with the mother. Especially in cases where the child is of tender age or in fragile health, a mother’s care driven by instinct and deep emotional bonds cannot be equalled by any substitute, however well-intentioned or well-compensated.
Thus, the Court held that the continued retention of the minor son by the husband was unjustified, contrary to the orders of a competent foreign Court, violative of the principles of comity of Courts, and not conducive to the welfare of the child.
The Court remarked that Indian Courts while exercising the parens patriae jurisdiction, 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 also stated, “Indian Courts cannot be reduced to instruments of convenience for litigating foreign nationals seeking to sidestep judicial proceedings in their own jurisdictions. The constitutional writ jurisdiction of the Indian Courts is neither designed nor intended to be misused in this manner.”
Accordingly, the Court allowed the petition, holding the minor son’s custody unsustainable in law and the minor son ought to be repatriated to Canada in the custody of the wife.
[Camila Carolina de Matos Vilas Boas v. Union of India, CRWP No. 1086 of 2025, decided on 22-04-2025]
Advocates who appeared in this case :
For the petitioner: Abhinav Sood, Sayyam Garg, Anmol Gupta and Mehndi Singhal
For the respondents: Lalit K. Gupta, Senior Deputy Advocate General Amit Rana, Sr. Deputy Advocate General Rahul Mohan, Assistant Advocate General Yuvraj Shandilya, S.S. Saron, M.B. Rajwade, Anuj Aryan and Naveen
