“Order Of Foreign Court Must Yield To Welfare Of Child”: Karnataka High Court Refuses Father’s Plea To Return Daughter To Canada

The Court was hearing the father’s plea seeking production of the child and her return to Canada in compliance with an October 2025 order of the Superior Court of Justice, Ontario. He also sought the setting aside of an interim custody order passed by the Family Court at Mysuru in favour of the child’s mother.

A Bench of Justice Anu Sivaraman and Justice T.P. Vivekananda reiterated that a foreign court’s direction cannot override the child’s welfare or be mechanically enforced through habeas corpus jurisdiction. Referring to Kanika Goel v. State of Delhi (2018), the Bench observed:

“The order of the foreign court must yield to the welfare of the child, and the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and to convert that jurisdiction into that of an executing court. Where the private respondent is none other than the natural guardian of the minor being her biological mother, it can be presumed that the custody of the minor with her mother is lawful, and it is only in an exceptionable situation that such custody can be ordered to be taken away from her in the exercise of writ jurisdiction.”

Advocates Prabhijit Jauhar and Deepa J. appeared for the father. High Court Government Pleader Ranjith Kumar appeared for the State authorities, while Advocates Arun Govindraj and Siddhant S. Darira appeared for the mother.

Background

The father submitted that the parties married in India in 2013, moved to Ontario in 2020 and that their daughter was born there in December 2020. According to him, the mother initiated divorce and custody proceedings before the Superior Court of Justice, Ontario, in June 2024.

The father stated that the Canadian court subsequently granted the mother temporary responsibility for the child’s day-to-day affairs, restrained her from travelling with the child without advance notice and granted him virtual parenting time. He alleged that she nevertheless travelled to India with the child in March 2025 without notifying him.

The judgment states that the mother later withdrew her Canadian proceedings and instituted divorce and custody proceedings before the Family Court at Mysuru. In June 2025, the Family Court passed an ex parte interim order protecting her custody of the child.

The father relied on subsequent Canadian orders directing the child’s return to Ontario. He argued that Ontario was her habitual residence and that the mother, having invoked the Canadian court’s jurisdiction, could not avoid the resulting directions.

The mother contended that she was the child’s natural guardian and primary caregiver and that her custody was not unlawful. She argued that the child’s welfare could not be subordinated to enforcement of the foreign order and that the custody dispute was already pending before the competent Family Court in Mysuru.

Court’s Observations

Foreign Order Does Not Displace Child’s Welfare

The Court held that the paramount consideration in every child-custody matter is the welfare of the minor. It stated that a foreign court’s direction for the child’s return does not create a jurisdictional bar preventing an Indian court from independently considering the child’s welfare.

Referring to Dhanwanti Joshi v. Madhav Unde (1998), the Bench noted that an Indian court is not required to mechanically enforce a foreign custody order. It observed that the court may conduct either a summary inquiry or an elaborate inquiry, depending upon the circumstances, including the time spent by the child in India and the ties formed here.

The Court further relied on Nithya Anand Raghavan v. State (NCT of Delhi) (2017), which held that the principle of comity of courts cannot be given primacy over the child’s welfare. Quoting the decision, the Bench stated:

“In the case of a summary inquiry, the court may deem it fit to order return of the child to the country from where he/she was removed unless such return is shown to be harmful to the child. In other words, even in the matter of a summary inquiry, it is open to the court to decline the relief of return of the child to the country from where he/she was removed irrespective of a pre-existing order of return of the child by a foreign court. In an elaborate inquiry, the court is obliged to examine the merits as to where the paramount interests and welfare of the child lay and reckon the fact of a pre-existing order of the foreign court for return of the child as only one of the circumstances. In either case, the crucial question to be considered by the court (in the country to which the child is removed) is to answer the issue according to the child’s welfare.”

The Bench stated that none of the decisions relied upon by the father laid down an inflexible rule requiring an Indian court to enforce every foreign return order irrespective of the child’s welfare.

Nothing Showed Return To Canada Would Serve Child’s Welfare

Applying these principles, the Court found nothing demonstrating that the child’s welfare would be better served by returning her to Canada. The Bench noted that the Ontario court itself had described the mother as the child’s primary caregiver and stated that the child recognised her as her only parent.

The Court further noted that the child was living with her mother and maternal grandparents, attending school in India and continuing to have video-call contact with her father. The Bench observed:

“Therefore, in the instant case, we are of the opinion that the jurisdiction to decide the question of custody may lie with the courts in India, since there is nothing available to suggest that the welfare of the minor is better served by repatriating her to Canada. Further, as recorded by the Superior Court of Justice, Ontario in its Endorsement dated 27.10.2025, respondent No.2 is also the primary caregiver whom the child recognises as her only parent. The minor is presently only 6 years old and is in the custody of her mother in India. She is attending school here and is being brought up by her mother and maternal grandparents. The petitioner has continued to have video call access in terms of the parenting arrangement. There is nothing on record to suggest that her continued stay with respondent No.2 is in any manner prejudicial to her welfare.”

Mother’s Custody Was Not Unlawful

The Court relied on Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019) while explaining that habeas corpus is an extraordinary remedy in child-custody matters. It stated that the writ is ordinarily available where a child is detained by someone who is not entitled to legal custody.

Quoting Tejaswini Gaud (2019), the Bench observed:

“Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.”

The Court also referred to Nithya Anand Raghavan (2017) and observed that custody with a natural guardian is presumed lawful. It stated that such custody would be disturbed through writ jurisdiction only in an exceptional situation, while the other parent would ordinarily be relegated to the substantive remedy.

Custody Dispute Left To The Competent Court

The Bench noted that the mother’s custody was protected by the subsisting temporary injunction passed by the Family Court at Mysuru. It also found that the Ontario order did not declare her custody unlawful or grant the father sole custody.

The Court stated:

“Insofar as the order dated 27.10.2025 passed by the Superior Court of Justice, Ontario directing return of the minor is concerned, the said order did not declare the custody of the minor with respondent No.2 to be unlawful, nor did it vest sole custody in the petitioner. The petitioner is exercising his visitation rights regularly as is evident from the Orders passed by this Court. In the said factual situation, we are of the opinion that the question of jurisdiction or the lack thereof as also of the best interest of the child are to be decided by the Court where the parties have joined issues.”

Conclusion

The Karnataka High Court held that the father’s petition seeking the child’s return to Canada could not succeed in the circumstances of the case. It dismissed the habeas corpus petition and disposed of the pending interlocutory applications.

Cause Title: PN v. State of Karnataka and Others

Appearances

Petitioner: Advocates Prabhijit Jauhar and Deepa J.

Respondents: High Court Government Pleader Ranjith Kumar for Respondent Nos. 1 and 3; Advocates Arun Govindraj and Siddhant S. Darira for Respondent No. 2

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