Habeas corpus can enforce foreign custody orders; compliance with parental rights and welfare of the child are paramount in custody disputes.

JUDGMENT :

MANJARI NEHRU KAUL, J.

1. The present petition has been filed under Article 226 of the Constitution of India in the nature of habeas corpus by the petitioner, the biological mother of the minor child XXX (hereinafter referred to as ‘alleged detenue’) seeking a direction to respondent No.8, her former husband, to produce the alleged detenue before this Court and hand over his custody to her. The petitioner has invoked the extraordinary writ jurisdiction of this Court, asserting that the alleged detenue is being unlawfully retained in India by respondent No.8 in deliberate and continuing violation of a binding custody order dated 13.11.2024 passed by the Superior Court of Justice (Family Court), Ontario, Canada.

2. The relevant factual backdrop, as emerges from the pleadings, is as follows:

(i) The petitioner and respondent No.8 were married on 20.12.2018 at Durham, Ontario, Canada. The alleged detenue, was born in February, 2021 in Canada and holds Canadian nationality.

(ii) Owing to marital discord and alleged acts of domestic violence, the petitioner separated from respondent No.8 in January 2024. It is not disputed that Canadian police authorities issued show cause notices to respondent No.8 in connection with complaints of sexual assault and other offences.

(iii) On 02.07.2024, by a consent order, the family Court in Ontario permitted respondent No.8 to travel to India with the alleged detenue for a short visit of 2 to 3 weeks, subject to the condition that he would furnish a full travel itinerary to the petitioner and return to Canada thereafter.

(iv) It is an admitted position that respondent No.8 did not inform the petitioner of the date and details of travel and, further, did not return to Canada with the alleged detenue after the agreed time. This led the petitioner to approach the Ontario Family Court, which passed a final order dated 13.11.2024, granting sole custody of the child (alleged detenue) to the petitioner, directing respondent No.8 to return the alleged detenue within seven days and to facilitate daily virtual communication between the alleged detenue and the petitioner. A monetary penalty of 1,000 Canadian dollars per day was imposed for non-compliance.

(v) Despite the categorical and binding directions of the Canadian Court, respondent No.8 neither returned the alleged detenue to Canada nor facilitated any interaction between the alleged detenue and the petitioner.

(vi) The petitioner thereafter approached this Court by way of the present petition, asserting that the continued retention of her child i.e. alleged detenue by respondent No.8 amounts to illegal detention and parental abduction.

3. SUBMISSIONS ON BEHALF OF THE PETITIONER:

Learned counsel for the petitioner submitted as follows:

(i) That the petitioner is the biological and natural guardian of the alleged detenue and has been granted his sole custody by a competent Court in Canada through a final and enforceable decree.

(ii) That the conduct of respondent No.8 in violating Canadian Court orders and retaining the child in India is illegal and contrary to settled principles of comity of courts and international child custody jurisprudence.

(iii) That the alleged detenue is of tender age, emotionally dependent on the petitioner, and has been abruptly severed from her due to the unilateral and wrongful actions of respondent No.8.

4. The petitioner has p