Courts Not Bound To Mechanically Enforce Foreign Interest Order, If Enforcement Contrary To Child’s Welfare: Madhya Pradesh High Court Refuses Custody To Father
The Court cited the Ramayana and Mahabharat period noting that a mother is the first refuge of the child and motherhood is not extinguished by separation.
Justice Vijay Kumar Shukla and Justice Binod Kumar Dwivedi, Madhya Pradesh High Court
The Madhya Pradesh High Court, Indore Bench has reaffirmed that the welfare of a minor child is the paramount consideration in custody disputes, asserting that Indian courts are not bound to mechanically enforce foreign repatriation orders. The Court noted that while foreign decrees from competent jurisdictions are relevant factors, they must yield to the child’s physical, emotional, and social well-being if returning to the native country would disrupt a settled lifestyle.
The Court dismissed the writ petition filed by the father to seek custody of the child, clarifying that it had not adjudicated the merits of permanent custody but was strictly focused on the immediate best interest of the child. The Bench cited Ramayan and Mahabharat period, to note that ‘if we see the role of a mother and her rights for a child in Ramayana, mother is the first refuge of the child’ and that ‘despite Shri Ram being the king of Ayodhya and their father, the children remain with the mother’.
Justice Vijay Kumar Shukla and Justice Binod Kumar Dwivedi “…In relation to the impact of an order of a Foreign Court relating to interest, it is well settled that the same is a relevant factor, however, the same is not conclusive. The doctrine of comity of Courts cannot overwrite the paramount consideration of the welfare of the child. The Indian Court is not bound to mechanically enforce a foreign interest order, if such enforcement would be contrary to the child’s welfare”.
Advocate Prabhijeet Jauhar appeared for the petitioner and Senior Advocate A.S. Garg and Sudeep Bhargava, Dy. Advocate General appeared for the respondent.
As per the facts, pursuant to a matrimonial dispute between the petitioner and his wife, who were residing in Canada as permanent residents with their daughter, Miraya, a U.S. citizen, in April 2022, while on a visit to India, the mother informed the petitioner she would not be returning to Canada and subsequently enrolled the child in a school in Indore.
The petitioner then obtained several orders from the Superior Court of Justice, Ontario, including a final order in March 2024 granting him sole custody and directing the child's repatriation.
The petitioner initially filed a writ petition in 2022 which was dismissed, followed by a Special Leave Petition before the Supreme Court. The Apex Court disposed of the SLP in July 2024, granting the petitioner liberty to seek implementation of the final Canadian custody order in India. Consequently, the petitioner moved the High Court under Article 226, seeking a writ of habeas corpus for the daughter's custody and the return of her travel documents.
The Court citing the upbringing of Luv and Kush by Mata Sita as a prime example of maternal guardianship, noted that the child had been residing in India for four years and appeared well-settled in his current environment.
After a chamber interaction with the minor, the Court found that the child expressed strong emotional attachment to the mother and that the current educational stability in Indore outweighed the petitioner’s reliance on the Canadian decree.
“We have also taken into consideration the age of the child, the need of maternal care at her formatting stage, the emotional and educational stability of the child and the overall circumstances placed on record, we are of the considered view that the custody of the child cannot be directed to be handed over to the petitioner solely on the basis of a foreign decree, which would not subserve the welfare of the minor as it has been found that it is not in the interest of child to return to the foreign country and the custody to the petitioner”, the Bench noted.
Accordingly, the Court dismissed the writ petition, clarifying that it had not adjudicated the merits of permanent custody but was strictly focused on the immediate best interest of the child. No order was made as to costs.
Cause Title: X v. The State of Madhya Pradesh & Others (Neutral Citation: 2026:MPHC-IND:10638)
Appearances:
Petitioner: Prabhijeet Jauhar, Rosemary Raju and Firoza Daruwala, Advocates.
Respondent: A.S. Garg, Senior Advocate, Archit Jayakar, Raunak Choukse, Advocates, Sudeep Bhargava, Dy. Advocate General.