Indian courts can't be used by foreigners to sidestep court proceedings in their country: Punjab & Haryana High Court

The Punjab and Haryana High Court on Tuesday observed that Indian courts cannot be reduced to instruments of convenience for litigating foreign nationals seeking to sidestep judicial proceedings in their own jurisdictions..Justice Manjari Nehru Kaul made these observations while dealing with a habeas corpus petition moved by the mother of a 4-year-old child who had been taken to India by his father, a Canadian citizen, last year. The child's parents, both foreign nationals, are separated. A Canadian court had permitted the father to take the child to India only for 2-3 weeks, but he failed to return him. Instead, he filed a court case in India for the child's permanent custody. Calling it a case of forum shopping, the Court said,"The approach of respondent No.8 is not only lacking in bona fides but also indicative of an effort to manipulate jurisdiction by creating fortuitous circumstances, which cannot be permitted or condoned by Indian Courts. It needs to be stated with emphasis that the jurisdiction of Indian Courts cannot be attracted by the deliberate creation of artificial facts or flouting foreign judicial orders.".In such cases, Indian courts must be guided by considerations of fairness, equity and international legal harmony, and must not allow their forum to be used to frustrate valid foreign judicial orders, the Court stressed. .The biological mother of the child had moved the Court seeking directions to her former husband to produce the child. She submitted that after he failed to return the child, a family court in Ontario granted her the sole custody of the child in November 2024.Considering the same, Justice Kaul said that the continued retention of the minor child by his father was unjustified since it was contrary to the orders of a competent foreign court and not conducive to the welfare of the child..The Court said that the child ought to be repatriated to Canada in the custody of his mother, who is a Bolivian citizen.“It cannot be overemphasized that even if the father is of impeccable character and fully capable of caring for the child, and even if the mother has been separated from him without justification, the welfare of the child may still demand that custody remain with the mother. Especially in cases where the child is of tender age or in fragile health, a mother's care-driven by instinct and deep emotional bonds cannot be equaled by any substitute, however well intentioned or well compensated." .Considering the fact that both the father and the mother of the child are foreign nationals, the Court had framed the following questions:(i) Whether the writ of habeas corpus is maintainable in the peculiar facts and circumstances of the case.(ii) Whether the custody order passed by a competent Canadian Court merits enforcement by an Indian Court. (iii) Whether the conduct of the father, who prima facie appears to be defying the authority of Canadian Courts, warrants judicial intervention in India.(iv) Whether the mother should be relegated to seek redress before Courts in Canada, the country of origin and habitual residence of the child (alleged detenue)..Answering the question on maintainability, the Court noted that the Supreme Court has held that in habeas corpus matters pertaining to child custody, the determinative factor is not the mere legal entitlement of one parent over the other, but the welfare and best interest of the child.“Therefore, the continued stay of the alleged detenue in India is unauthorized. In this backdrop, permitting respondent No.8 to retain the custody of the child (alleged detenue), despite an unequivocal foreign custody order to the contrary, would be antithetical not only to the legal rights of the petitioner but also to the rule of law, international comity, and, above all, the welfare of the child,” it said..The Court observed that the father’s conduct clearly points to an attempt to evade legal accountability. His approach is not only lacking in bona fides, but is also indicative of an effort to manipulate jurisdiction by creating fortuitous circumstances, it added..It further stated that it is not open to a parent to disobey court orders, refuse to return the child as per undertaking, and then seek to characterise the resultant custody as lawful under Indian law.“In habeas corpus proceedings involving 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. In the present case, it is undisputed that the alleged detenue is a Canadian national, and therefore, his welfare must be assessed in that context.".Advocates Abhinav Sood, Sayyam Garg, Anmol Gupta and Mehndi Singhal represented the petitioner (mother).Advocate Lalit K Gupta represented the Union of India. Senior Deputy Advocate General Amit Rana represented the State of Punjab.Senior Deputy Advocate General Rahul Mohan and Assistant Advocate General Yuvraj Shandilya represented the State of Haryana.Advocates SS Saron, MB Rajwade, Anuj Arya and Naveen represented the respondent-father. .[Read Judgment]