Karan Chopra vs State & Anr.
- Court
- Delhi High Court
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 13.03.2026
Judgment pronounced on: 02.07.2026
+ W.P.(CRL) 1190/2020, CRL.M.A. 16260/2021 (Seeking
unsupervised visitation right), CRL.M.A. 24858/2025 (Delay of
15 days in filing the affidavit in terms of order dt. 11.07.2025),
CRL.M.A. 24859/2025 (Ex. from filing certified copies of
annexures–R2/1) & CRL.M.A 5816/2026 (For permission to
place on Addl. Documents)
KARAN CHOPRA .....Petitioner
Through: Mr. Prabhjit Jauhar and
Ms. Rosemary Raju,
Advocates.
versus
STATE & ANR. .....Respondents
Through: Mr. Sanjeev Kumar Dubey, Sr
Adv with Mr. Rahul Sanga, Ms.
Tanya Verma and Mr.
Shahrukh Khan, Advs for R-2.
SI Pradeep Kumar.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
J U D G M E N T
HARISH VAIDYANATHAN SHANKAR, J.
In the solemn chambers of justice, few responsibilities
weigh more heavily upon the conscience of the Court than
those concerning the welfare and well-being of a child. A
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child stands before the law not as a claimant, nor as a
prize to be won, but as a life in its most tender and
impressionable form, innocent, dependent, and deserving
above all else of protection, stability, and love.
When the future of a minor is placed in the scales of
justice, the Court must look beyond the assertions and
rival claims of those who stand before it. Its gaze must
remain fixed upon the silent center of the dispute-the child,
whose voice is often the softest, yet whose interests are the
most profound. As Kofi Annan, former Secretary-General
of the United Nations, poignantly observed, ‘There is no
trust more sacred than the one the world holds with
children.”
The law, in its wisdom, recognizes that the welfare of the
child is not merely a relevant consideration; it is the
paramount consideration. It is the North Star by which the
Court must navigate, eclipsing all competing interests.
Every order, every direction, and every conclusion must
ultimately seek to secure for the child what every child is
entitled to: a life of dignity, security, affection, and the
freedom to grow unburdened by the conflicts of others.
1. The present Petition has been instituted under Article 226 of the
1
Constitution of India read with Section 482 of the Code of Criminal
Procedure, 1973, seeking issuance of an appropriate writ, order, or
direction in the nature of habeas corpus against Respondent No. 2 for
production of the minor son of the Petitioner and Respondent No. 2,
namely, Master “S”, who is stated to have been in illegal custody of
Respondent No. 2 since 25.10.2019. The Petitioner further seeks
1
Constitution
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compliance with the Order dated 19.03.2020 passed by the Superior
Court of Justice, Ontario, Canada.
2. In the alternative, a direction is sought against Respondent No.
2 to hand over the custody of the minor child to the Petitioner in order
to facilitate the child’s repatriation to Canada in terms of the aforesaid
Order dated 19.03.2020.
BRIEF FACTS:
3. Shorn of unnecessary details, the facts germane to the
institution of the present Petition are as follows:
a. The Petitioner, Mr. Karan Chopra, had shifted to California,
United States of America, in January, 2013, on a work permit.
b. The Petitioner got married to Respondent No. 2, Mrs. Ashu
Chopra, on 24.12.2014, through a registered marriage, followed
by a ceremonial wedding on 18.01.2015.
c. After the marriage, around February 2015, the parties had
shifted to California, United States of America and began
residing together.
d. Out of the said wedlock, the Minor Child, Master “S”, was born
on 24.05.2016 in San Jose City, United States of America, and
is stated to be a citizen of the USA.
e. Thereafter, in or around August 2018, the parties relocated to
Mississauga, in the Region of Peel, Province of Ontario,
Canada, upon obtaining Permanent Residency, and established
their matrimonial home there along with the Minor Child.
f. After the parties relocated to Canada, certain disputes and
differences arose between them, which eventually led to
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deterioration in their matrimonial relationship and gave rise to
serious discord between the parties.
g. It is stated in the Petition that on 25.10.2019, upon returning to
the residence, the Petitioner discovered that Respondent No. 2
had left the said residence along with the Minor Child. It was
subsequently learnt that Respondent No. 2, accompanied by the
Minor Child, had travelled to India.
h. It is further stated that the Petitioner made several efforts to
establish communication and maintain contact with Respondent
No. 2 as well as the Minor Child.
i. In December 2019, the Petitioner instituted proceedings before
2
the Superior Court of Justice, Ontario, Canada , seeking
custody of the Minor Child and consequential directions for the
return of the Minor Child to Canada.
j. The Canadian Court, by way of an interim order dated
20.02.2020, granted the Petitioner access to interact with the
Minor Child through video conferencing for a duration of 20
minutes daily.
k. Thereafter, Respondent No. 2 filed her reply on 06.03.2020
before the Canadian Court, while also raising her own claims
and contentions in the said proceedings.
l. Subsequently, upon hearing both parties, the Canadian Court,
vide order dated 19.03.2020, inter alia , directed that the Minor
Child be returned to the Region of Peel, Ontario, Canada, and
further granted temporary sole custody of the Minor Child to
the Petitioner. The said order also restrained Respondent No. 2
2
Canadian Court
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from removing the Minor Child from the jurisdiction of
Ontario, Canada, without either the consent of the Petitioner or
further orders of the Court.
m. It is the case of the Petitioner that Respondent No. 2 failed to
comply with the aforesaid order dated 19.03.2020, and
consequently, the Minor Child continued to remain in India in
the custody of Respondent No. 2.
n. In these circumstances, and on account of the alleged non-
compliance with the order dated 19.03.2020 passed by the
Canadian Court directing the return of the Minor Child to
Ontario, Canada, the present Writ Petition has been instituted
by the Petitioner seeking issuance of appropriate directions,
including the production of the Minor Child.
SUBMISSIONS ON BEHALF OF THE PETITIONER:
4. Learned Counsel appearing on behalf of the Petitioner would
submit that the parties had, for a substantial part of their matrimonial
life, resided outside India, initially in the United States of America
and thereafter in Canada, and thus their matrimonial home and the
centre of their marital life stood established abroad. The Minor Child
was born in San Jose, United States of America, and acquired
citizenship by birth, after which the parties shifted to Canada upon
obtaining Permanent Residency and continued to reside and work
there with the intention of permanently settling and raising the Minor
Child in that jurisdiction.
5. Learned Counsel for the Petitioner would further submit that
Respondent No. 2 unilaterally removed the Minor Child from Canada
to India on 25.10.2019 without the knowledge or consent of the
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Petitioner, thereby disturbing the settled arrangement between the
parties. It would be contended that such removal disrupted the
ordinary and habitual residence of the Minor Child.
6. It would further be contended by the learned Counsel for the
Petitioner that the Petitioner acted with utmost promptitude and
diligence immediately upon learning that Respondent No. 2 had taken
the Minor Child to India, and he forthwith approached the competent
courts in Canada seeking appropriate relief. Thereafter, the Petitioner,
without undue delay, instituted the present Writ Petition before this
Court seeking issuance of a writ of habeas corpus and consequential
directions for repatriation of the Minor Child to Canada.
7. Learned Counsel would submit that Respondent No. 2 had
voluntarily invoked and submitted to the jurisdiction of the competent
Canadian Court by participating in the proceedings initiated therein
and by seeking substantive relief before the said Court. It would
further be submitted that, after affording due opportunity of hearing to
both parties, the Canadian Court passed an order dated 19.03.2020
directing the return of the Minor Child to Canada, which Respondent
No. 2 cannot now disregard.
8. Learned Counsel for the Petitioner would further submit that,
despite remaining in India since October, 2019, Respondent No. 2
consciously chose not to initiate any proceedings before the Indian
Courts for nearly one year thereafter. Respondent No. 2 instituted
proceedings in New Delhi only in September, 2020 and that too
subsequent to the filing of the present petition by the Petitioner before
this Court.
9. It would be submitted that, in light of the principles laid down
by the Hon’ble Supreme Court in Nithya Anand Raghavan v. State
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3
(NCT of Delhi) , Respondent No. 2 cannot be said to have
demonstrated the requisite promptness or urgency in pursuing
remedies before the Indian Courts. Consequently, the mere pendency
of proceedings before the Indian Courts cannot operate as an
impediment to the exercise of jurisdiction by this Court in the present
proceedings.
10. Learned Counsel for the Petitioner would further argue that the
principle of comity of courts requires due regard and weight to be
accorded to the orders passed by a competent foreign court,
particularly where such orders have been rendered after affording an
adequate opportunity of hearing to both parties. It would be submitted
that the order dated 19.03.2020 passed by the Canadian Court has not
been challenged by Respondent No. 2 before any appellate forum in
Canada and therefore continues to bind the parties.
11. In support of the aforesaid submissions, reliance would be
placed by the learned Counsel for the Petitioner upon the judgments of
the Hon’ble Supreme Court in, inter alia , Nithya Anand (supra),
4
Lahari Sakhamuri v. Sobhan Kodali , Yashita Sahu v. State of
5 6
Rajasthan , Nilanjan Bhattacharya v. State of Karnataka , and
7
Sunaina Rao Kommineni v. Abhiram Balusu to contend that, where
a minor child has been removed from a foreign jurisdiction and the
aggrieved parent approaches the court with promptness and
expedition, the Court ought ordinarily to undertake a summary
inquiry. It would further be contended that the child should ordinarily
be returned unless it is demonstrated that such repatriation would
3
(2017) 8 SCC 454
4
(2019) 7 SCC 311
5
(2020) 3 SCC 67
6
(2021) 12 SCC 376
7
2025:DHC:4483-DB
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expose the child to grave physical, emotional, or psychological harm,
which, according to the Petitioner, is not borne out from the facts and
circumstances of the present case.
12. Learned Counsel would further submit that Respondent No. 2
remains at liberty to pursue all remedies available to her before the
competent Canadian Court, including seeking modification, variation,
or recall of any order passed therein. However, it would be contended
by the learned Counsel for the Petitioner that Respondent No. 2 cannot
be permitted to defeat the due process of law or frustrate the orders of
a competent court by continuing to retain the Minor Child in India, in
contravention of the directions issued by the Canadian Court.
13. Learned Counsel for the Petitioner would further contend that
the paramount consideration of the welfare of the Minor Child would
be best served by his repatriation to Canada, as the Minor Child had
been ordinarily residing there, was enrolled in school there, and was
receiving specialized medical care and therapeutic support in relation
to developmental concerns within a structured healthcare system. It
would further be contended that no cogent material has been placed on
record by Respondent No. 2 to establish that the return of the Minor
Child to Canada would expose him to any physical danger,
psychological trauma, or emotional harm.
14. Learned Counsel for the Petitioner would submit that, owing to
the unilateral acts of Respondent No. 2, the Minor Child has been
deprived of the love, care, guidance, and companionship of the
Petitioner-father for a prolonged period. It would further be submitted
that the right of a child to receive the affection, presence, and
involvement of both parents constitutes an integral component of his
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welfare and balanced upbringing, which is presently being denied to
the Minor Child.
15. Learned Counsel for the Petitioner would additionally submit
that both parties were gainfully employed, financially secure, and
well-settled in Canada, and had intended to permanently reside there
as a family unit. In such circumstances, it would be contended that
Respondent No. 2 cannot unilaterally alter the settled position
regarding the residence and upbringing of the Minor Child and
thereby deprive the Petitioner of his parental and custodial rights.
16. Learned Counsel appearing on behalf of the Petitioner, during
the course of oral submissions and on instructions, specifically stated
that the Petitioner is ready and willing to make appropriate residential
and logistical arrangements for Respondent No. 2 and the Minor Child
at the matrimonial home in Canada, being the residence where the
parties had ordinarily resided prior to their departure for India. It was
further submitted that, in order to ensure the comfort, privacy, and
convenience of Respondent No. 2 and the Minor Child, the Petitioner
is willing to reside separately in another residential property owned by
him during the pendency of any proceedings or arrangements between
the parties.
17. Learned Counsel for the Petitioner further, during the course of
oral submissions and on instructions, stated that the Petitioner is ready
and willing to file an Affidavit of Undertaking stating the following:
a. that appropriate residential and logistical arrangements shall be
made for Respondent No. 2 and the Minor Child at the
matrimonial home in Canada, being the residence where the
parties had ordinarily resided prior to their departure for India;
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b. the Petitioner shall reside separately in another residential
property owned by him during the pendency of any proceedings
or arrangements between the parties;
c. the Petitioner has the wherewithal to bear all the expenses of the
Minor Child, as well as reasonable expenses of Respondent
No.2, if she chooses to accompany the Minor Child to Canada,
inter alia, for sustenance of their life in Canada.
SUBMISSIONS ON BEHALF OF RESPONDENT NO. 2:
18. Learned Senior Counsel appearing for Respondent No. 2 would
oppose the relief sought in the present Writ Petition on the following
three grounds:
(i) The Petitioner herein, by way of the present Writ Petition, is
seeking to enforce the Order of the Canadian Court here in
India, which is not legal and maintainable.
(ii) The Petitioner has not come before this Court as well as the
Canadian Court, with clean hands and the Petitioner does not
have the necessary economic wherewithal to support the child.
(iii) This Court, while exercising its parens patriae jurisdiction, has
to keep the welfare of the Minor Child as paramount
consideration and since the Minor Child has remained in Indian
jurisdiction since before the filing of the present Petition,
allowing the same will be tantamount to uprooting the child
from his roots.
19. Learned Senior Counsel would submit that the present Writ
Petition seeking issuance of a writ of habeas corpus is wholly
misconceived and not maintainable in the facts and circumstances of
the present case. The Petitioner is seeking enforcement of an order
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passed by a foreign court under the garb of seeking habeas corpus ,
which is impermissible in law. He would rely upon the judgment of
the Hon’ble Supreme Court in Ghan Shyam Das Gupta & Anr. vs.
8
Anant Kumar Sinha & Ors. to buttress his argument on the
maintainability of the present Petition.
20. Learned Senior Counsel for Respondent No. 2 would submit
that the Order dated 19.03.2020 passed by the Canadian Court is not
binding upon this Court and, at best, can only be treated as a factor to
be considered while determining the welfare of the Minor Child, as an
“ input ”. It would further be submitted that the said Order is ex parte in
nature and expressly provides that it is to be executed in accordance
with applicable law, including the provisions of the Code of Civil
Procedure, 1908. Therefore, the same cannot be mechanically
enforced by this Court.
21. Learned Senior Counsel, in furtherance of his contention that
the Petitioner has not approached either this Court or the Canadian
Court with clean hands, would place reliance upon the unamended
petition initially filed before this Court. He would submit that the
Petitioner failed to disclose before the Canadian Court that the Minor
Child was suffering from autism spectrum disorder, which, according
to him, reflects a callous and negligent attitude on the part of the
Petitioner.
22. He would further contend that the Petitioner also failed to
disclose before this Court the pendency of divorce proceedings
instituted before the Canadian Court, which omission, according to
8
(1991) 4 SCC 379
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him, is a relevant circumstance that ought to be taken into
consideration.
23. The further point that the learned Senior Counsel for the
Respondent no. 2 would seek to canvass is that the Petitioner does not
have the necessary economic wherewithal to support the child.
24. He would seek to rely upon the income affidavit filed by the
Petitioner along with the supporting documents and would refer to the
income statements placed on record to contend that the Petitioner’s
expenses exceed his disclosed income. On that basis, it would be
argued by the learned Senior Counsel for Respondent No. 2 that the
Petitioner lacks the financial capacity to adequately support and
maintain the Minor Child.
25. He would further contend that the contention of the learned
Counsel for the Petitioner that there are multiple houses and it would
be ensured hat a separate house is provided for the mother and the
child is clearly not made out, as the houses are stated to be under
mortgage.
26. On a demurrer , learned Senior Counsel would also submit that
even if it were to be believed that the Petitioner was economically
capable of taking care of the Minor Child, this Court has to see the
competing interest of the parents and has to arrive at a decision
keeping in mind the welfare of the Minor Child, which, he would
submit, is remaining in India with Respondent No. 2.
27. It would further be contended by the learned Senior Counsel for
Respondent No. 2 that this Court, while exercising jurisdiction in
matters concerning custody of a minor child, acts as parens patriae ,
and the paramount consideration is the welfare and best interest of the
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child, which overrides all other considerations, including the principle
of comity of courts.
28. Learned Senior Counsel would submit that the Minor Child has
been continuously residing in India since October, 2019 and has, over
the past more than six years, become fully settled in his social,
educational, and familial environment. It would further be submitted
that the child is presently studying in a reputed school, is well-
adjusted to his surroundings, and remains under the constant care,
supervision, and support of Respondent No. 2 and her family
members.
29. It would be submitted that uprooting the Minor Child at this
stage and directing his repatriation to Canada would cause serious
psychological and emotional harm and would be contrary to his
welfare. The child has developed deep roots in India and has adapted
to the cultural, social, and educational environment herein.
30. Learned Senior Counsel would submit that Respondent No. 2
had duly participated in the proceedings before the Canadian Court;
however, mere participation therein does not preclude her from
contesting the maintainability of the present Petition or asserting the
welfare of the child before this Court.
31. It would also be submitted by the learned Senior Counsel
appearing on behalf of Respondent No. 2 that proceedings pertaining
to the custody and guardianship of the Minor Child are already
pending before the competent courts in India. In view thereof, it is
contended that this Court ought not to exercise its extraordinary
jurisdiction under Article 226 of the Constitution in the present
proceedings.
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32. Learned Senior Counsel for Respondent No. 2 would place
reliance upon the judgments of the Hon’ble Supreme Court in, inter
9
alia , Dhanwanti Joshi v. Madhav Unde , V. Ravi Chandran v.
10 11
Union of India , Ruchi Majoo v. Sanjeev Majoo , Nithya Anand
12
(supra) and Yasir Ayaz Vs State of NCT Delhi & Anr. to contend
that the welfare and best interests of the child are of paramount
consideration in custody matters and that orders passed by foreign
courts are not conclusive or binding upon Indian courts.
33. He would further rely upon the aforesaid judgments of the
Hon’ble Supreme Court to contend that, in cases where a child has
developed roots in India and where repatriation may expose the child
to harm, instability, or emotional distress, the courts in India are
justified in declining the relief of return notwithstanding the existence
of a foreign court order.
34. It would thus be submitted by the learned Senior Counsel for
Respondent No. 2 that, in the facts of the present case, having regard
to the prolonged stay of the Minor Child in India, his educational
continuity, medical improvement, emotional stability, and existing
familial support system, it would be in the paramount interest and
welfare of the child to remain in India under the care and custody of
Respondent No. 2.
ANALYSIS:
35. We have heard the learned counsel appearing for the parties at
considerable length and, with their able assistance, carefully perused
9
(1998) 1 SCC 112
10
(2010) 1 SCC 17
11
, (2011) 6 SCC 479
12
2026:DHC:2008-DB
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the voluminous record placed before this Court, including the
pleadings, documents, orders passed by the foreign court, and the
judicial precedents relied upon by both sides.
36. At the outset, this Court considers it necessary to reproduce the
operative directions issued by the competent Canadian Court vide
Order dated 19.03.2020 concerning the return of the Minor Child and
the grant of temporary custody in favour of the Petitioner-father. The
said directions read as follows:
“THIS COURT ORDERS THAT:
1) The Respondent mother, Ashu Chopra shall forthwith return the
minor child of the marriage, namely Shivaansh Chopra, son of
Karan Chopra and Ashu Chopra born May 24, 2016, to the
Region of Peel in the province of Ontario, Canada at her own
expense.
2) The Applicant father, Karan Chopra shall have temporary sole
custody of the minor child, namely Shivaansh Chopra, son of
Karan Chopra and Ashu Chopra, born May 24, 2016 and the
Applicant father, or any person he authorizes,, shall be at liberty
to travel with the said minor child for the purpose of returning
the child to Applicant father.
3) Once the minor child, namely Shivaansh Chopra, son of Karan
Chopra and Ashu Chopra, born May 24, 2016 has returned to
the Region of Peel in the province of Ontario, Canada, the
Respondent mother, Ashu Chopra shall not remove the said
child from Region of Peel in the province of Ontario, Canada,
without the prior written consent of the Applicant father and/or
further order of this Court.
4) All law enforcement authorities the Province of Ontario and
Canada, including but not limited to the Peel Regional Police,
Ontario Provincial Police and Royal Canadian Mounted Police,
or anywhere in India and any other law enforcement agencies
having jurisdiction in this matter/order, are hereby instructed
and authorized to locate, apprehend and deliver the minor child
namely Shivaansh Chopra, son of Karan Chopra and Ashu
Chopra born May 24, 2016 and his passport and other
international travel documents to the Applicant father, Karan
Chopra or any person he authorizes.
5) This order is liable to execute in India as per the provision of
civil procedure of the court 1908 (as amended up to date) or any
other law for the time being enforced.
6) The Applicant, Karan Chopra shall serve and file written costs
submissions on or before April 19 ,2020, and the Respondent,
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Ashu Chopra shall have 10 days thereafter to serve and file her
response to the said submissions.”
37. The principal submission advanced on behalf of Respondent
No. 2 is that the Minor Child has remained in India for almost six
years and has, during this period, become socially, emotionally,
culturally, educationally, and psychologically integrated within the
Indian environment. It is contended that the child is now studying in
India, has developed emotional bonds with the maternal side of the
family, has adapted to the prevailing social conditions, and that
uprooting the child at this stage would be contrary to his welfare and
emotional stability. At first glance, the aforesaid contention appears to
invoke the settled principle that in all matters concerning custody of a
minor child, the welfare and best interest of the child constitute the
paramount and overriding consideration.
38. However, upon a deeper scrutiny of the facts and circumstances
of the present case, this Court is unable to accept the said submission
in the manner sought to be projected by Respondent No. 2. The
continued stay of the child in India cannot be viewed in isolation or
treated as a neutral circumstance detached from the surrounding
factual and legal matrix. The said continuance is not the result of any
adjudicatory determination by an Indian court granting lawful custody
to Respondent No. 2 in derogation of the Canadian Court’s order.
Rather, the prolonged stay of the child in India is directly linked to,
and indeed flows from, the conscious and continued non-compliance
by Respondent No. 2 with a subsisting judicial order passed by a court
of competent jurisdiction.
39. It is significant to note that Respondent No. 2 had invoked and
unequivocally submitted herself to the jurisdiction of the competent
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Canadian Court. She actively participated in the proceedings before
the said Court, filed her pleadings, opposed the reliefs sought by the
Petitioner-father, and sought adjudication of her own claims and
objections. The Order dated 19.03.2020 was thus not an ex parte
determination rendered behind her back, nor can it be characterized as
an order passed in violation of the Principles of Natural Justice. The
Canadian Court passed the said order only after granting due
opportunity of hearing to both parties and after considering the
material placed before it.
40. Once Respondent No. 2 consciously elected to participate in
and submit to the jurisdiction of the Canadian Court, it does not now
lie in her mouth to selectively disregard the binding character of the
said proceedings merely because the outcome proved unfavourable to
her. A litigant cannot invoke the jurisdiction of a competent court for
seeking relief and thereafter refuse to acknowledge the authority of
that very court once an adverse determination is rendered. Such
conduct strikes at the very root of judicial discipline and orderly
administration of justice.
41. It is not disputed before this Court that the Canadian Court, vide
Order dated 19.03.2020, directed the return of the Minor Child to
Canada and granted temporary sole custody to the Petitioner-father.
Equally, there is no dispute that the said Order continues to remain
operative and has neither been stayed, modified, nor set aside by any
competent appellate or supervisory forum in Canada. The legitimacy
and binding character of the said judicial determination, therefore,
cannot be lightly brushed aside or treated as inconsequential.
42. This Court must also observe that the present proceedings
cannot be converted into an appellate exercise for examining the
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correctness or merits of the findings recorded by the Canadian Court.
The scope of the present proceedings is fundamentally distinct. This
Court is not required to re-appreciate the merits of the foreign
judgment as though sitting in appeal therefrom. What assumes
significance in the present matter is the subsequent conduct of
Respondent No. 2, who, despite the existence of a clear judicial
mandate directing the return of the child, consciously chose not to
comply with the same and instead continued to retain the child in
India.
43. Consequently, the continued residence of the child in India,
including during the pendency of the present proceedings, cannot be
regarded as a circumstance arising from lawful adjudication or
legitimate custody recognized by a competent court in India. Rather, it
is a situation that has continued despite the subsistence of a judicial
order directing otherwise. The factual position, therefore, cannot be
equated with an ordinary custody dispute.
44. This Court is conscious that the present Petition under Article
226 of the Constitution cannot be treated as a mere execution
proceeding for the enforcement of a foreign order or decree. The legal
framework governing the execution of foreign decrees is separately
provided under law. However, merely because the factual backdrop of
the present proceedings overlaps with the consequences flowing from
the Canadian Court’s order does not imply that this Court is denuded
of its constitutional jurisdiction to entertain a petition seeking issuance
of a writ of habeas corpus in relation to a minor child.
45. The extraordinary jurisdiction of this Court under Article 226 of
the Constitution remains sufficiently wide to examine whether the
continued retention of the child is lawful and whether the welfare of
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the child would justify issuance or refusal of the relief sought. At the
same time, this Court cannot lose sight of the fact that the child is an
US Citizen and was ordinarily residing in Canada and was brought to
India without the consent of the father, whereafter the father
immediately initiated legal proceedings before the competent
Canadian Court. Respondent No. 2 participated in those proceedings
and, despite suffering an adverse order, continued to retain the child in
India in defiance of the said judicial determination.
46. In such circumstances, the objection regarding the
maintainability of the present Petition does not merit acceptance.
Nonetheless, this Court reiterates that the paramount consideration
remains the welfare and best interest of the Minor Child. If the Court
were to find that return of the child would expose him to harm,
instability, insecurity, or circumstances detrimental to his physical,
emotional, educational, or psychological welfare, this Court would not
abstain from declining the relief sought.
47. In the considered opinion of this Court, the Order dated
19.03.2020 passed by the competent Canadian Court constitutes a
valid and reasoned judicial determination rendered after due
observance of the Principles of Natural Justice. Nothing has been
brought to the notice of this Court to demonstrate that the said Order
suffers from a lack of jurisdiction, procedural irregularity, denial of
hearing, or any manifest judicial impropriety. So long as the said
Order continues to remain operative and unsuspended by a competent
court, it cannot be treated as a nullity or ignored at the unilateral
convenience of one of the parties.
48. What particularly concerns this Court is that Respondent No. 2,
despite having fully participated in the proceedings before the
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Canadian Court, chose not to challenge the said Order before the
appropriate appellate or supervisory forum available under Canadian
law. Instead, she adopted a course of unilateral non-compliance by
continuing to retain the child in India. This conduct cannot be viewed
as a mere procedural lapse or an act arising from legal ambiguity. It
reflects a conscious decision to disregard a binding judicial
determination.
49. The distinction is of considerable importance. Every litigant
possesses the legal right to challenge an adverse order before a higher
forum in accordance with the law. However, what the legal system
cannot countenance is a litigant taking recourse to self-help by simply
refusing to obey a judicial order and thereafter attempting to create a
new factual situation through prolonged non-compliance. Courts
cannot permit a litigant to derive legal advantage from deliberate
disobedience of judicial orders.
50. To permit such conduct to attain legal legitimacy would amount
to placing a premium upon judicial disobedience. Courts cannot
endorse a situation where a party, after having invoked the jurisdiction
of a competent court and suffered an adverse determination therein,
simply relocates or retains the child in another jurisdiction and
thereafter invites the courts of that jurisdiction to proceed as though
the prior adjudication were wholly irrelevant. Such an approach would
seriously undermine judicial discipline, encourage forum shopping,
and incentivize litigants to evade unfavourable judicial orders by
creating fait accompli situations across territorial borders.
51. It is also a matter of record that the Petitioner-father approached
the competent Canadian Court promptly after removal of the child
from Canada. Respondent No. 2 participated in those proceedings
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with full knowledge of the issues involved and the consequences that
may flow therefrom. Having contested the matter on merits and
suffered an adverse order, Respondent No. 2 cannot now invite this
Court to examine the correctness of the Canadian Court’s
determination as though exercising appellate jurisdiction over the
same. The present proceedings are not intended to adjudicate upon the
legal soundness of the Canadian Court’s Order, but rather to
determine the appropriate relief in light of the prevailing factual and
legal circumstances while keeping the welfare of the child as the
paramount consideration.
52. It is now well settled and the Hon’ble Supreme Court has
reiterated time and again that the doctrine of comity of courts is
founded upon mutual respect and deference between courts of
competent jurisdiction, particularly in matters involving transnational
family disputes and international child custody issues. While this
Court undoubtedly retains parens patriae jurisdiction and remains
duty-bound to independently examine the welfare of the child, such
jurisdiction does not extend to treating valid judicial orders passed by
foreign courts as inconsequential, especially where the very party
resisting such orders had voluntarily invoked and participated in the
foreign proceedings.
53. Comity of courts is not a matter of mere courtesy or diplomatic
etiquette; it constitutes an essential principle underlying the orderly
administration of justice in an increasingly interconnected legal world.
Failure to accord due weight to foreign judicial determinations in
appropriate cases would lead to uncertainty, multiplicity of
proceedings, and erosion of confidence in transnational adjudicatory
mechanisms.
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54. If litigants are permitted to first submit to the jurisdiction of a
foreign court, contest proceedings on merits therein, and thereafter,
upon receiving an unfavorable order, simply ignore the same and seek
refuge in another jurisdiction, the very efficacy and authority of
judicial institutions across jurisdictions would stand seriously
compromised. Such conduct would render international custody
adjudications susceptible to strategic evasion and would encourage
unilateral removal and retention of children in foreign jurisdictions
with the expectation that the passage of time alone would defeat
lawful judicial orders.
55. Courts must remain vigilant to ensure that their constitutional
and equitable jurisdictions are not utilized as instruments for
legitimizing deliberate non-compliance with judicial determinations
rendered by courts of competent jurisdiction.
56. This Court would therefore fail in its own institutional duty if it
were to completely disregard the deliberate non-compliance
demonstrated by Respondent No. 2. Judicial orders, whether domestic
or foreign, cannot be reduced to mere advisory observations or treated,
as sought to be argued by the learned Senior Counsel for Respondent
No. 2, as mere “ inputs ” capable of acceptance or rejection at the
convenience of the litigant concerned. Such a proposition is wholly
incompatible with the rule of law.
57. This is especially so where the order emanates from a court
whose jurisdiction had been expressly accepted and invoked by the
very party now seeking to evade its operation. The majesty and
sanctity of law lie not merely in the authority of courts to pronounce
judgments, but equally in the expectation that such judgments shall be
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respected and obeyed unless modified or set aside in accordance with
law.
58. At the cost of repetition, this Court reiterates that the present
proceedings are not intended to execute the Canadian Court’s order as
though it were a domestic decree directly enforceable by this Court.
However, that does not imply that the said Order can be treated as non
est or wholly irrelevant while adjudicating the present matter. The
distinction between “recognition” of a foreign judicial determination
and “execution” thereof is well settled in law.
59. While this Court must independently assess the welfare and best
interests of the child, it is equally bound to accord substantial and
persuasive weight to the determination rendered by the court of the
child’s habitual residence, particularly where such determination was
made after full participation of both parents and after due adjudicatory
process.
60. In the present case, Respondent No. 2 cannot be permitted to
approbate and reprobate simultaneously, to invoke the jurisdiction of
the Canadian Court when it suited her interests and thereafter
repudiate the authority of that very court once the outcome proved
adverse. A litigant cannot be allowed to selectively accept or reject a
jurisdiction depending upon the fortunes of litigation.
61. Further, in the peculiar factual matrix of the present case, the
argument advanced on behalf of Respondent No. 2, premised upon the
“ passage of time ” and the consequential establishment of roots by the
minor child in India, must be approached with considerable caution
and circumspection. It is undoubtedly true that the law recognizes that,
in certain circumstances, prolonged residence of a child in a particular
environment may result in the child becoming settled socially,
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emotionally, educationally, and psychologically, thereby necessitating
a more elaborate inquiry into the welfare of the child rather than
directing a summary return to the country of habitual residence.
However, the said principle is neither absolute nor mechanically
applicable, irrespective of the surrounding circumstances.
62. The doctrine relating to a child becoming “ settled ” cannot be
invoked in a manner that would effectively reward a litigant for
deliberate defiance of judicial orders or for creating a fait accompli
through unilateral conduct coupled with prolonged non-compliance.
Such a proposition would strike at the very foundation of equitable
principles and orderly administration of justice. The law cannot permit
a party to derive legal advantage from her own wrong.
63. Any interpretation to the contrary would amount to legitimising
conduct whereby a parent, after removing or retaining a child contrary
to law and in violation of a subsisting judicial mandate, could
subsequently rely upon the very consequences of such unlawful
retention to defeat the rights of the other parent and the authority of
the court whose order has been violated.
64. The six-year period of residence of the Minor Child in India,
which Respondent No. 2 seeks to rely upon so as to contend that the
child is now firmly rooted in India, must therefore be viewed in its
proper factual and legal perspective. The said period cannot be treated
as an independent, neutral, or organically evolved circumstance
detached from the events that led to its creation. The genesis of the
child’s continued stay in India is itself tainted by unilateral action and
continued non-compliance with a subsisting judicial order.
65. The record reveals that the child was removed from Canada
without the consent of the Petitioner-father. Thereafter, the competent
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Canadian Court, after hearing both parties, specifically directed the
return of the child to Canada and granted temporary custody in favour
of the Petitioner. The said Order continues to remain operative and has
neither been stayed, modified, nor set aside by any competent forum.
Despite this, Respondent No. 2 consciously chose not to comply with
the said direction and continued to retain the child in India.
66. The resultant passage of time and the circumstances flowing
therefrom are, therefore, direct consequences of Respondent No. 2’s
own conduct. In such circumstances, the “ roots ” which the child is
stated to have developed in India cannot be elevated to a
determinative or overriding factor so as to defeat the very judicial
order whose breach enabled those roots to emerge in the first place.
To permit such a consequence would effectively amount to
recognizing an advantage flowing directly from continued
disobedience of the law.
67. It is equally important to underscore that the concept of a
“ settled environment ” cannot be assessed merely by reference to the
duration of the child’s stay in a particular country, his schooling,
social interactions, or day-to-day assimilation viewed in isolation. The
inquiry into settlement must necessarily take into account the legal
legitimacy and juridical basis of the child’s continued presence in that
environment.
68. This Court is of the considered opinion that if courts were to
attach determinative weight to a situation brought about through
unilateral retention of a child in breach of lawful orders, it would
create a dangerous incentive structure whereby a parent could remove
or retain a child across jurisdictions, resist lawful directions of
competent courts, prolong proceedings, and thereafter rely upon the
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efflux of time itself as a defence against restoration of the original
position.
69. The acceptance of the argument canvassed by Respondent No. 2
would have far-reaching and deeply troubling consequences. It would
set a precedent whereby a parent could effectively defeat the
jurisdiction of a competent court and the custodial or parental rights of
the other parent merely by retaining the child in another country for a
sufficient length of time. In practical terms, such an interpretation
would encourage unilateral removals and wrongful retentions of
children across borders, with the expectation that prolonged pendency
of proceedings would ultimately operate in favour of the parent in
breach.
70. Equally, this Court finds that the Petitioner-father cannot be
faulted for the passage of time in the present case. The record clearly
demonstrates that immediately upon removal of the child from
Canada, the Petitioner initiated legal proceedings before the
competent Canadian Court. Thereafter, within a reasonable period, the
Petitioner also approached this Court by way of the present
proceedings. The material on record further indicates that the parties
had initially attempted mediation and reconciliation efforts, which
consumed considerable time. The record also reflects that the present
petition remained pending before this Court for adjudication over a
prolonged period.
71. It is further borne out from the record that the Petitioner was
constrained to approach the Hon’ble Supreme Court, whereafter
appropriate directions came to be passed for early adjudication of the
matter. Thus, the prolonged pendency of the present proceedings
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cannot be attributed to any inaction, acquiescence, negligence, or
abandonment on the part of the Petitioner.
72. In such circumstances, permitting the passage of time during the
pendency of judicial proceedings to operate against the Petitioner
would be manifestly unjust and would effectively penalize a litigant
who diligently pursued lawful remedies without undue delay. The law
cannot countenance a situation where the very pendency of judicial
proceedings, over which a litigant has limited control, is subsequently
invoked to defeat his substantive rights. To hold otherwise would
amount to allowing procedural delay to extinguish the legitimate
claims of a party who has acted bona fide and with promptitude
throughout.
73. In these circumstances, the balance must necessarily tilt in
favour of restoring the position that existed prior to the wrongful
removal and continued retention of the child, particularly where such
restoration is supported by a subsisting judicial determination passed
by the court of the child’s habitual residence. The welfare of the child,
in cases of this nature, is not necessarily served by validating a
situation brought about through unilateral conduct in defiance of law.
Rather, welfare is ordinarily best secured by ensuring that the issue of
long-term custody is adjudicated comprehensively by the forum which
is most closely connected with the child’s ordinary and habitual
residence and which had already assumed jurisdiction over the dispute
at the earliest point in time.
74. The competent Canadian Court, being the court of the child’s
habitual residence and already seized of the custody dispute, is best
equipped to undertake a complete evaluation of all relevant factors
concerning custody, visitation, parenting rights, educational
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arrangements, social environment, and long-term welfare
considerations in accordance with applicable law.
75. In view of the aforesaid discussion, this Court is of the
considered opinion that the six-year residence of the Minor Child in
India during the pendency of the present proceedings cannot, in the
peculiar facts of the case, constitute a valid ground to deny relief to
the Petitioner. The said period, having arisen directly as a
consequence of continued non-compliance with the order passed by
the competent Canadian Court, cannot be permitted to override
considerations of legality, judicial discipline, comity of courts, and
orderly administration of justice.
76. This Court is also guided in this regard by the observations
made by the Hon’ble Supreme Court in analogous matters concerning
transnational child custody disputes, wherein the Apex Court has
repeatedly emphasized the importance of the doctrine of comity of
courts and has taken note of the disturbing tendency of parties, after
having participated in proceedings before foreign courts and suffered
adverse orders therein, to subsequently initiate or prolong proceedings
in India so as to frustrate or circumvent those determinations.
77. Viewed cumulatively, therefore, this Court finds that the plea of
“ settled residence ” raised by Respondent No. 2 is legally untenable in
the peculiar factual circumstances of the present case. The very
foundation of such a plea rests upon continued retention of the child in
breach of a subsisting judicial order passed by a court of competent
jurisdiction. A circumstance brought about through continued non-
compliance with the law cannot be accorded determinative weight so
as to defeat the Petitioner’s claim.
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78. This Court is also guided by the Judgement of the Apex Court
in Yashita Sahu (supra) wherein, the Apex Court has held that when a
child is removed by one parent from one country to another, especially
in violation of the orders passed by a Court, the country to which the
child is removed, must consider the question of custody and decide
whether the Court should conduct an elaborate inquiry on the question
of the child’s custody or deal with the matter summarily, ordering the
parent to return the custody of the child to the jurisdiction from which
the child was removed and all aspects relating to the child’s welfare be
investigated in a Court in his/her own country.
79. In that case, the Hon’ble Court reiterated that in such matters of
custody of a child, the primary and paramount consideration is the
welfare of the child. While deciding the welfare of the child, it is not
the view of one spouse alone that has to be taken into consideration;
the Court must decide the welfare of the child, keeping in view a host
of circumstances, like the age of the child, the nationality of the child,
the facilities of education, social security, and other welfare indicators.
80. While looking at the facts of the present case holistically, the
precedent laid down in Nithya Anand (supra) guides this Court,
wherein the Hon’ble Supreme Court held that while adjudicating
issues concerning the custody and welfare of a minor child, which
may be required to be done summarily, the Court must undertake an
evaluation of all relevant circumstances.
81. In the said case, the Hon’ble Supreme Court further observed,
inter alia , that in transnational custody disputes, additional
considerations such as the principle of comity of courts, the child’s
intimate and closest connection with the foreign jurisdiction, orders
passed by competent foreign courts, and the citizenship and ordinary
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residence of the child and the parents assume considerable importance
and may, in an appropriate case, weigh heavily in the Court’s
determination.
82. At this stage, this Court notes that there has been no serious
allegation, much less any cogent material placed on record, to
demonstrate that the Minor Child or Respondent No. 2-mother would
be exposed to any physical danger, abuse, neglect, or other grave harm
upon return to Canada.
83. No circumstance has been brought to the notice of this Court
suggesting that the Petitioner-father suffers from any incapacity,
violent disposition, instability, or conduct which may endanger the
physical, emotional, educational, or psychological welfare of the
Minor Child. Equally, there is no material to indicate that the child
would be deprived of appropriate care, safety, education, healthcare,
emotional support, or developmental assistance upon his return to
Canada.
84. The primary thrust of the submissions advanced on behalf of
Respondent No. 2 has substantially revolved around the contention
that the minor child has now remained in India for a prolonged
duration and has become “ well-settled ” in the Indian environment. It
has repeatedly been argued that the child is presently studying in
India, is accustomed to the social and familial surroundings available
here, and that directing his return to Canada would amount to
“uprooting” him from a settled environment, thereby adversely
affecting his emotional and psychological well-being. In essence, the
argument sought to be canvassed is that the welfare principle, which
remains paramount in custody matters, mandates continuation of the
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present arrangement solely because the child has remained in India for
a considerable period of time.
85. Apart from the aforesaid contention, an attempt was also made
to question the financial capacity and economic stability of the
Petitioner-father by referring to the income documents and financial
disclosures placed on record. It was sought to be contended that the
Petitioner may not possess adequate financial means to provide a
stable and secure environment for the child in Canada. This Court now
proceeds to examine the said submissions.
86. The financial capacity of the Petitioner-father is borne out from
the income affidavit and supporting material placed on record before
this Court. The said affidavit reflects that the Petitioner is gainfully
employed in Canada and possesses a stable, consistent, and substantial
source of income. The material further demonstrates that the Petitioner
has maintained financial regularity and possesses sufficient means to
provide for the educational, medical, residential, emotional, and
developmental needs of the Minor Child.
87. Nothing has been brought on record to indicate that the
Petitioner is financially unstable or incapable of discharging his
parental obligations. On the contrary, the documents placed before
this Court disclose that the Petitioner possesses the economic capacity
necessary to provide a secure and structured environment for the
upbringing of the child. The financial disclosures also indicate that the
Petitioner has the means to ensure continuity in the child’s education,
healthcare, and overall welfare upon return to Canada.
88. The financial stability of the Petitioner assumes considerable
significance while evaluating the welfare and best interests of the
Minor Child. In contemporary custody jurisprudence, welfare cannot
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be confined merely to emotional attachment or continuity of
residence; it necessarily encompasses the ability to provide a stable
standard of living, access to quality education, adequate healthcare
facilities, emotional security, and developmental support systems
suited to the child’s long-term growth.
89. The material available on record indicates that while residing in
Canada, the child had access to structured educational systems,
specialized medical facilities, and developmental support mechanisms.
The Court cannot lose sight of the fact that the child had earlier
received medical and developmental assistance in Canada, and there is
nothing to indicate that comparable or continued support would be
unavailable upon his return. The Petitioner’s financial wherewithal
ensures that the child will continue to have access to such institutional
support systems, healthcare infrastructure, educational opportunities,
and developmental facilities in Canada.
90. In assessing the welfare of the child, the Court is required to
consider not merely present comfort, but also long-term
developmental prospects. The Petitioner’s demonstrated financial
stability substantially supports the conclusion that the child’s long-
term welfare would remain adequately protected and secured in
Canada.
91. Equally important is the fact that the income affidavit filed by
the Petitioner does not merely demonstrate earning capacity in
abstract terms, but also reflects a degree of financial responsibility,
consistency, and transparency. The Petitioner has disclosed his
financial position before this Court and has demonstrated readiness
and willingness to undertake all obligations concerning the child’s
upbringing, education, healthcare, residence, and overall welfare.
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92. This Court finds no material whatsoever to doubt either the
bona fides or the capability of the Petitioner in ensuring not only the
physical well-being of the minor child, but also his emotional,
psychological, and developmental needs. Importantly, the record also
reflects that the Petitioner has consistently shown a willingness to
ensure continued interaction and emotional bonding between the child
and Respondent No. 2-mother in a manner conducive to the welfare of
the child.
93. The Petitioner’s conduct during the pendency of the
proceedings does not indicate any intention to alienate the child from
the mother. Rather, the material on record suggests that the Petitioner
seeks restoration of custody primarily within the framework of lawful
adjudication and not as an instrument to sever maternal ties.
94. In contrast, while Respondent No. 2 has strongly emphasized
the present stability and comfort of the child in India, no compelling
material has been placed before this Court to establish that the
Petitioner would be unable to provide an equal or superior
environment for the child’s holistic development in Canada. The
submissions advanced on behalf of Respondent No. 2 have largely
proceeded on apprehensions and speculative concerns rather than
demonstrable evidence showing that return to Canada would be
detrimental to the child’s welfare.
95. On the contrary, the comparative financial capacity of the
Petitioner, coupled with the availability of structured institutional
systems in Canada, including educational infrastructure, healthcare
support, developmental facilities, and social welfare mechanisms,
reinforces the conclusion that the welfare of the child would not be
jeopardized by his return to Canada.
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96. The Court is unable to accept the proposition that the mere fact
that the child has presently adjusted to life in India necessarily implies
that a return to Canada would be harmful or contrary to his welfare.
Children, particularly of tender age, possess considerable adaptive
capacity, especially when adequate parental support, educational
continuity, emotional care, and stable living arrangements are
available. There is nothing on record to suggest that the child would
be incapable of readjusting to life in Canada or that such a transition
would result in irreparable psychological or emotional harm.
97. Thus, the financial position and overall circumstances of the
Petitioner, as borne out from the material placed before this Court and
as elaborated during the course of proceedings, constitute an
additional factor reinforcing the conclusion that the welfare, security,
educational interests, healthcare requirements, and developmental
needs of the child would remain adequately safeguarded upon
repatriation to Canada.
98. This Court is, therefore, unable to accept the contention that the
child’s return to Canada would expose him to any financial insecurity,
deprivation, or instability. On the contrary, the material on record
sufficiently establishes that the Petitioner possesses the means,
willingness, and institutional support necessary to ensure the child’s
overall welfare.
99. This Court further notes that material has been placed on record
by both parties, indicating that the Minor Child shares a bond and
emotional attachment with both parents. Naturally, considering that
the child has been residing primarily with Respondent No. 2-mother
for a prolonged duration, the child may presently exhibit greater
emotional dependence and attachment towards the mother. Such a
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circumstance is neither unusual nor unexpected in custody matters
involving a child of tender age.
100. However, at the same time, the record also reflects that pursuant
to the various interim orders passed by this Court, the Petitioner-father
has remained in regular contact with the child and has consistently
attempted to maintain emotional and parental engagement with him.
There is nothing on record to suggest complete estrangement,
alienation, or absence of emotional bonding between the father and
the child. On the contrary, the interactions facilitated during the
pendency of the proceedings indicate that the child recognizes and
maintains a relationship with the Petitioner-father.
101. This Court is therefore unable to accept the contention that
relocation of the child to Canada would result in such substantial
emotional or psychological trauma as would outweigh all other
relevant considerations in the present case. Emotional comfort,
attachment, and relational bonds are dynamic human experiences
capable of being nurtured and strengthened over time. With
appropriate arrangements, sensitivity, and parental cooperation, the
child can continue to maintain and develop meaningful emotional
relationships with both parents even upon return to Canada.
102. This Court also notes that Respondent No. 2 sought to contend
that the shifting of the Minor Child to Canada pursuant to any order
passed by this Court may adversely affect the child’s health,
education, care, and overall welfare. However, this Court does not
find any convincing material on record to substantiate such
apprehensions.
103. There is no evidence before this Court to demonstrate that
Canada lacks adequate medical infrastructure, healthcare facilities,
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educational systems, therapeutic support mechanisms, or child welfare
institutions necessary for the child’s continued growth and well-being.
Equally, no circumstance has been shown to establish that the child
would be deprived of educational continuity or developmental
opportunities upon return to Canada.
104. This Court is of the considered opinion that the apprehensions
expressed by Respondent No. 2 remain largely speculative and cannot
override the larger factual and legal circumstances governing the
present case. Mere anxiety or emotional reluctance associated with
relocation cannot, by itself, constitute sufficient ground to disregard a
subsisting judicial determination of the court of habitual residence,
particularly in the absence of any concrete material showing that
return would expose the child to actual harm or serious prejudice.
105. Finally, upon an anxious, careful, and holistic consideration of
the entire conspectus of facts and circumstances placed before it, this
Court is satisfied that the welfare and best interests of the Minor
Child, which remain the paramount and overriding considerations in
all custody matters, would be best served by directing the return of the
child to the jurisdiction of the competent Canadian Court.
106. In arriving at this conclusion, this Court has not proceeded
mechanically, nor has it based its determination solely upon the
existence of the foreign order passed by the competent Canadian
Court. Rather, this Court has undertaken an independent and
comprehensive examination of the entire factual matrix emerging
from the pleadings, documents placed on record, and the extensive
oral submissions advanced by the learned counsel for the parties over
the course of hearings conducted on several dates.
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:03.07.2026
09:26:08
W.P.(CRL) 1190/2020 Page 36 of 40
107. This Court has carefully considered the conduct of both parties,
the welfare and best interests of the minor child, the child’s present
emotional, educational, social, and developmental circumstances, the
financial and emotional capacities of both parents, the legality and
implications surrounding the continued retention of the child in India,
and the broader principles governing transnational child custody
disputes, including the doctrine of comity of courts and the principle
of restoration to the court of habitual residence.
108. The Court has also consciously examined whether any
circumstance exists that would indicate that return of the child to
Canada may expose him to physical harm, emotional trauma,
insecurity, neglect, or any situation detrimental to his welfare.
Equally, the Court has considered the nature of the child’s bonding
with both parents, the continuity of parental contact during the
pendency of the proceedings, the educational and medical
infrastructure available to the child in Canada, and the overall ability
of the Petitioner-father to provide a stable, secure, and nurturing
environment for the child’s upbringing.
109. This Court is therefore of the considered opinion that directing
the return of the child to Canada would not amount to the execution of
a foreign decree. Instead, such a course would restore the child to the
jurisdiction of his habitual residence, namely Canada, where all
questions relating to long-term custody, parenting rights, visitation,
care, education, upbringing, and welfare can be comprehensively
adjudicated by the competent court already seized of the matter.
110. The Petitioner-father has demonstrated not only financial
capability and stability, but also a genuine commitment towards the
emotional, educational, developmental, and psychological well-being
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:03.07.2026
09:26:08
W.P.(CRL) 1190/2020 Page 37 of 40
of the child. The material on record does not indicate any
circumstance warranting the denial of restoration of temporary
custody in terms of the Canadian Court’s order.
111. Simultaneously, this Court is also conscious that the
relationship between the child and Respondent No. 2-mother is of
immense importance and deserves full protection. Appropriate
arrangements concerning access, visitation, interaction,
communication, and participation in the child’s upbringing can always
be structured by the competent Canadian Court so as to preserve and
nurture the maternal bond in a manner consistent with the child’s
welfare.
112. To permit continuation of a situation brought about in
derogation of a subsisting judicial order passed by a court of
competent jurisdiction would, in the considered opinion of this Court,
be contrary to law, equity, judicial discipline, and the doctrine of
comity of courts. Courts cannot permit their processes to be employed
in a manner that legitimizes prolonged non-compliance with lawful
judicial determinations.
113. This Court is therefore of the considered opinion that the ends
of justice, the sanctity of judicial process, the principles governing
transnational custody disputes, and above all, the paramount welfare
of the Minor Child, warrant restoration of temporary custody in terms
of the order passed by the competent Canadian Court, while leaving
the parties at liberty to agitate and pursue their substantive rights
concerning permanent custody, parenting arrangements, visitation,
and other related issues before the said competent forum in
accordance with law.
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:03.07.2026
09:26:08
W.P.(CRL) 1190/2020 Page 38 of 40
CONCLUSION:
114. Keeping in mind the aforesaid, this Court deems it appropriate
to pass the following directions while allowing the present writ
Petition:
(i) Respondent No. 2 shall return the Minor Child to the
jurisdiction of the competent Canadian Court within a period of
six weeks from the date of this judgment by handing over
temporary custody of the Minor Child to the Petitioner. The
handing over shall take place before the learned Registrar
General of this Court on a date mutually convenient to the
parties, as may be fixed by the learned Registrar General.
(ii) The Petitioner shall file an Affidavit of Undertaking, in terms of
sub-paragraphs (a) to (c) of paragraph 17 of this Judgment,
within a period of two weeks from the date of this Judgment.
(iii) Respondent No. 2 shall be at liberty, if she so desires, to
accompany the Minor Child to Ontario, Canada. In such event,
she shall communicate her intention to travel, to the Petitioner,
at least four weeks prior to the proposed date of travel.
Respondent No. 2 shall be at liberty to join the Minor Child at a
later point in time as well, as per her convenience.
(iv) The travel arrangements of the parties and/or the Minor Child
shall be mutually coordinated and finalized between the parties.
(v) In the event Respondent No. 2 accompanies the Minor Child to
Canada or she wishes to join later, the Petitioner shall provide
accommodation in the residence where the parties had earlier
resided together, while the Petitioner shall himself reside
separately in the second property owned by him.
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:03.07.2026
09:26:08
W.P.(CRL) 1190/2020 Page 39 of 40
(vi) To facilitate the return of the Minor Child to Canada,
Respondent No. 2 shall hand over the passport and all travel
documents of the Minor Child to the Petitioner or his parents at
the time of handing over temporary custody.
(vii) Respondent No. 2 shall take necessary steps for the withdrawal
of the Minor Child from his present school in India, and the
Petitioner shall ensure his admission to an appropriate school in
Canada with minimal disruption to the child’s education and
other necessities.
(viii) In the event Respondent No. 2 fails to hand over custody of the
Minor Child in terms of the present directions, the Petitioner
shall be entitled to seek police assistance for implementation of
this order. The SHO, Police Station-Vikas Puri, Delhi, shall
extend all necessary assistance to the Petitioner for ensuring
compliance with the present directions.
115. The Registry of this Court is directed to communicate the copy
of this Order to the SHO, Police Station Vikas Puri, Delhi as well as
the learned Registrar General of this Court.
116. In view of the aforesaid directions, the present Petition, along
with pending application(s), if any, shall stand disposed of.
117. No Order as to Costs.
SUBRAMONIUM PRASAD, J.
HARISH VAIDYANATHAN SHANKAR, J.
JULY 02 , 2026/sm/va
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:03.07.2026
09:26:08
W.P.(CRL) 1190/2020 Page 40 of 40