The Supreme Court on August 31 has allowed a minor boy to be returned to his father in Canada after six years, dismissing the mother’s appeal against a Delhi High Court order directing the child’s repatriation.
“We have heard the learned counsels appearing for the parties. We find no ground to interfere with the impugned order passed by the high court. The special leave petition is accordingly dismissed,” a bench of justices MM Sundresh and Prasanna B Varale said in the August 31 order. The court delivered the verdict while hearing the mother’s appeal against the Delhi high court’s July 3 order directing her to return the child to Canada within six weeks and hand over temporary custody to the child’s father.
In the present case, the couple married in January 2015, and initially lived in California. However, following the obtaining of permanent residency, they relocated to Mississauga, Canada, in 2018, but marital disputes arose between them. In October 2019, the wife left Canada with their three-year-old son and returned to India without the father’s knowledge. On the father’s custody petition, a Canadian court in March 2020 directed that the child be returned to Canada, granted the father temporary sole custody, and restrained the mother from removing the child from Canada’s jurisdiction without his consent or the court’s permission. In his petition before the high court, the man had asserted that the woman had voluntarily submitted to the jurisdiction of the Canadian court by participating in the custody proceedings, following which the March 2020 custody order was passed after both sides were duly heard. On July 3, the high court had directed the mother to hand over the child’s temporary custody, holding that permitting litigants to contest child custody proceedings before a foreign court and then seek refuge in another jurisdiction after an adverse ruling would undermine the efficacy and authority of judicial institutions across jurisdictions. In its 40-page verdict, the court further ruled that permitting such conduct would make international child custody adjudications vulnerable to strategic evasion, encourage the unilateral removal and retention of children across jurisdictions in the hope that the mere passage of time would defeat valid judicial orders and incentivise litigants to evade unfavourable judicial orders by creating fait accompli situations across territorial borders.
The father then approached the Delhi high court through his lawyer, Prabhjit Jauhar, by filing a habeas corpus petition. In the same, the father sought production of his minor son, alleging that the child had been unlawfully retained by his wife in India despite a Canadian court directing the child’s return to Canada and granting him temporary sole custody.
