P&H High Court Orders Return of Canadian Minor to Brazilian Mother, Upholds International Judicial Comity and Child Welfare

24th April 202524th April 2025 TaherAbedi 0 Comments

(Judicial Quest News Network)

Chandigarh, April 2025 – In a significant judgment reinforcing international legal cooperation and child welfare principles, the Punjab & Haryana High Court has ordered the return of a 4-year-old Canadian child to his Brazilian mother. The ruling, delivered by Justice Manjari Nehru Kaul, emphasized the importance of respecting foreign custody orders and condemned attempts to misuse Indian courts to evade international legal obligations.

The Court was hearing a Habeas Corpus petition filed by the mother, a Bolivian national and permanent resident of Canada, who alleged that the child’s father had unlawfully retained their son in India. The father had brought the child from Canada to India in July 2024 under a Canadian court’s limited travel permission, but failed to return the child despite multiple court directives. Subsequently, the Superior Court of Justice in Ontario granted full custody to the mother on November 13, 2024, considering the child’s best interests.

Despite this, the father did not comply, compelling the mother to approach the Indian judiciary. The High Court analysed key legal questions including the maintainability of the Habeas Corpus petition, the enforceability of Canadian custody orders in India, and the father’s conduct in defying foreign judicial authority.

Drawing from Supreme Court precedents including Shilpa Aggarwal v. Aviral Mittal and V. Ravi Chandran v. Union of India, the Court held that the child had been wrongfully retained in India, and that the Indian judiciary must act to facilitate his return to his country of habitual residence. The Court stated that Indian courts “must not be reduced to instruments of convenience for litigating foreign nationals seeking to sidestep judicial proceedings in their own jurisdictions.”

The judgment further highlighted serious legal and ethical breaches by the father, including overstaying his visa, concealing material information from Indian authorities, and deliberately violating custody orders. Notably, the child’s visa had also expired, rendering his stay in India unlawful.

“In the present case, it is undisputed that respondent No.8

was permitted by a Canadian Court to travel to India for a brief period

of 2 to 3 weeks, along with the alleged detenu, subject to an

undertaking and specific conditions. However, the subsequent sequence

of events reveals that 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. 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, particularly the subsequent order dated 13.11.2024, passed by the

competent Canadian Court, granting sole and final custody of the

alleged detenu to the petitioner and designating her as the exclusive

decision-making authority. The factum of withholding this crucial order

of the Canadian Court has been admitted by the Union of India before

this Court and even in the reply filed by the Union of India, a mention is

only given of the first order dated 28.09.2021, whereby the alleged

detente was ordered to remain in custody of respondent No.8. However, order dated 02.07.2024, whereby respondent No.8 along with his minor son (alleged detune) were granted permission to travel to India for 2 to

3 weeks has been withheld.”

In reaffirming the principle of parents patriae, the Court stated:

“In habeas corpus proceedings involving the 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 High Court also recognized the unique emotional and developmental needs of a child of tender age, noting the irreplaceable role of a mother’s care.

Ultimately, the Court ordered the immediate repatriation of the child to Canada in the custody of his mother, reinforcing that compliance with valid foreign judicial orders is essential to upholding international legal harmony and the rule of law.

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