New Delhi, Jul 3 The Delhi High Court has directed a woman to hand over her 10-year-old son to his father in Canada even after living in India for six years, stating that the stay here was in deliberate disobedience of a Canadian court's order which granted temporary custody in favour of the father.
A bench of justices Subramonium Prasad and Harish Vaidyanathan Shankar observed that the child - a US citizen -- was brought to India from Canada by his mother in October 2019 without the consent of his father, who then approached the competent court in Canada and obtained an order for temporary custody in his favour in March 2020.
The bench directed that in case the mother failed to hand over the custody of the minor child, the father shall be entitled to seek police assistance for implementation of this order.
The court passed the order on a habeas corpus petition by the father, which alleged the mother had his son in illegal custody.
In the judgement dated July 2, the bench rejected the mother's contention that having spent six years in India, the child was now "firmly rooted" here.
The bench stated that the "genesis" of their stay in India was "tainted by unilateral action and continued non-compliance with a subsisting judicial order".
It further said that the mother "fully participated" in the proceedings before the foreign court whose order was a "valid and reasoned judicial determination" and the court cannot legitimize her prolonged non-compliance in absence of any subsequent legal recourse.
"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," the judgement stated.
"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," it ordered.
The court observed that the father demonstrated financial capability and stability, as well as a genuine commitment towards the emotional, educational, developmental, and psychological well-being of the child, and there was no material on record to deny the restoration of the temporary custody in terms of the Canadian court's order.
The court left the parties at liberty to agitate their rights before the competent forum in accordance with law.
