Habitual residence and comity of courts prevail over prolonged stay resulting from defiance of foreign custody orders.

The Petitioner (father) and Respondent No. 2 (mother) married in 2014 and relocated to California, USA, where their son, Master “S” (a US citizen), was born in 2016.

In 2018, the family moved to Ontario, Canada, as Permanent Residents.

On 25.10.2019, the mother unilaterally removed the child to India without the father's consent.

The father promptly initiated proceedings in the Superior Court of Justice, Ontario, which, after hearing both parties, passed an order on 19.03.2020 granting temporary sole custody to the father and directing the child's return to Canada.

The mother failed to comply, leading the father to file this Habeas Corpus petition in the Delhi High Court in 2020.

During the six-year pendency of the petition, the child remained in India, and the mother initiated local guardianship proceedings in September 2020.

1. Whether a writ of habeas corpus is maintainable for the production of a minor child when a foreign court of competent jurisdiction has ordered the child's return.

2. Whether the "principle of comity of courts" and the child’s "habitual residence" should outweigh the fact that the child has developed "roots" in India due to a prolonged stay.

3. Whether the return of the child to Canada serves the "paramount consideration" of the child's welfare.

The court applied the principle that in custody matters, the "welfare of the child" is the paramount consideration, eclipsing all other legal rights.

It relied on the doctrine of "Comity of Courts," which requires Indian courts to respect and give due weight to orders of foreign courts of competent residence.

The court followed the precedents of Nithya Anand Raghavan v. State (NCT of Delhi) and Yashita Sahu v. State of Rajasthan, which establish that when a child is removed in violation of a foreign court order, the court may conduct a summary inquiry to return the child to the jurisdiction of habitual residence unless such return poses a grave risk of harm.

The court also noted its parens patriae jurisdiction under Article 226 of the Constitution.

The Court reasoned that Respondent No. 2 had voluntarily submitted to the Canadian jurisdiction and participated in those proceedings; therefore, she could not ignore the adverse order dated 19.03.2020.

The Court rejected the "settled roots" argument, observing that the child’s six-year stay in India was a direct result of the mother’s "conscious non-compliance" with a judicial mandate.

It determined that a parent cannot be permitted to derive a legal advantage from their own wrong or "self-help".

Furthermore, the Court found the Petitioner financially stable and capable of providing for the child’s specialized medical and educational needs in Canada.

It noted that the child, as a US citizen previously residing in Canada, had its "closest connection" to that jurisdiction.

The Court concluded that since there were no allegations of physical or psychological harm by the father, the child's long-term welfare would be best served by a comprehensive adjudication in the Canadian court.

It ordered Respondent No. 2 to return the child to Canada within six weeks. The Petitioner was directed to file an undertaking to provide separate accommodation and financial support for the mother and child in Canada should the mother choose to accompany him. The Court further directed the mother to hand over the child’s travel documents and withdrawal certificates from his current school to the Petitioner. Non-compliance by the mother would entitle the Petitioner to seek assistance from the SHO, Police Station-Vikas Puri, for implementation.