Indian Courts Not Forums Of Convenience For Foreign Nationals Evading Home Jurisdictions: Punjab & Haryana High Court
The child's foreign-national father violated a Canadian court order by not returning the child after a brief visit to India and instead sought permanent custody through Indian courts.
Punjab & Haryana High Court
The Punjab and Haryana High Court said that Indian courts should not become tools of convenience for foreign litigants attempting to circumvent the judicial systems of their home countries.
The Court was hearing a habeas corpus petition filed by a Bolivian national—the biological mother of a four-year-old child. The child’s father, a Canadian citizen, had brought the child to India with court-approved temporary custody but failed to return him as per the conditions laid out by a Canadian family court.
The parents of the minor are both foreign nationals and are living separately. In 2023, a Canadian court had authorized the father to take the child to India for a brief visit of 2–3 weeks. However, the father violated this order by not returning the child. Instead, he initiated separate legal proceedings in India seeking permanent custody of the child.
The mother, who was granted sole custody of the child by a family court in Ontario in November 2024, approached the Indian High Court, requesting that her former husband be directed to produce the child.
A Bench of Justice Manjari Nehru Kaul 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."
The Court criticized the conduct of the father, describing it as a deliberate attempt to manipulate jurisdiction by creating artificial circumstances.
The Court added, “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.”
The Court stressed that Indian judicial forums must not be misused to override or sidestep legitimate orders issued by foreign courts. It said, “Before parting, it must be unequivocally observed that Indian Courts cannot be reduced to instruments of convenience for litigating foreign nationals seeking to sidestep judicial proceedings in their own jurisdictions. The constitutional writ jurisdiction of the Indian Courts is neither designed nor intended to be misused in this manner.”
To navigate the legal complexity of the matter, the Court raised four critical questions:
- 1.Whether the writ of habeas corpus is maintainable in the peculiar facts and circumstances of the case;
- 2.Whether the custody order passed by a competent Canadian Court merits enforcement by an Indian Court;
- 3.Whether the conduct of respondent No.8, who prima facie appears to be defying the authority of Canadian Courts, warrants judicial intervention in India;
- 4.Whether the petitioner should be relegated to seek redress before Courts in Canada, the country of origin and habitual residence of the child (alleged detenue).
The Court ruled in favor of the petition’s maintainability, emphasizing that child custody in habeas corpus matters is governed primarily by the welfare and best interest of the child rather than the legal rights of either parent alone.
Since the child is a Canadian national, the Bench ruled that his welfare must be assessed within the Canadian context and legal framework.
The Court concluded that allowing the father to continue holding custody under these manipulated and unauthorized circumstances would amount to a miscarriage of justice, undermining the rule of law, international comity, and the fundamental welfare principles in child custody jurisprudence.
Accordingly, the Court directed that the child be repatriated to Canada and placed in the custody of his biological mother.
Cause Title: Camila Carolina de Matos Vilas Boas v. Union of India & Ors., [2025:PHHC:051547]
Appearance:
Petitioner: Advocates Abhinav Sood, Sayyam Garg, Anmol Gupta, Mehndi Singha
Respondents: Advocate Lalit K. Gupta, Sr. Deputy Advocate General Amit Rana, Sr. Deputy Advocate General Rahul Mohan and AAG Yuvraj Shandilya, Advocates SS Saron, MB Rajwade, Anuj Arya, and Naveen
