Delhi High Court Orders Child’s Return to Canada, Says Parent Cannot Benefit From Violating Foreign Custody Order
Delhi High Court Directs Return of Minor Child to Canada, Holds Prolonged Stay in India Cannot Reward Breach of Foreign Custody Order
Facts
The petitioner, Karan Chopra, filed a writ petition under Article 226 of the Constitution read with Section 482 CrPC, seeking a writ of habeas corpus for production and return of his minor son, Master “S”, who was in the custody of respondent no. 2, the child’s mother, in India.
The parties had married in 2014, shifted to the United States after marriage, and the minor child was born in San Jose, USA, in 2016. In 2018, the family relocated to Ontario, Canada, after obtaining Permanent Residency. Due to matrimonial disputes, respondent no. 2 left Canada with the child and came to India on 25 October 2019. The petitioner thereafter approached the Superior Court of Justice, Ontario, which passed an order dated 19 March 2020 directing return of the minor child to Canada and granting temporary sole custody to the petitioner. Respondent no. 2 did not comply with the order, leading to the present writ petition.
Issues
Whether the writ petition seeking habeas corpus for return of the minor child was maintainable.
Whether the Indian Court could consider and give weight to the Canadian Court’s custody and return order.
Whether the minor child’s stay in India for nearly six years was sufficient to refuse repatriation to Canada.
Whether return of the child to Canada would be contrary to his welfare and best interests.
Petitioner’s Arguments
The petitioner argued that the child was born in the USA, had ordinarily resided in Canada, and was removed from Canada to India without his knowledge or consent.
He submitted that he had acted promptly by approaching the Canadian Court and thereafter filing the present writ petition. It was further argued that respondent no. 2 had participated in the Canadian proceedings, filed her reply, and submitted to the jurisdiction of the Canadian Court. Therefore, she could not disregard the order merely because it went against her.
The petitioner contended that the Canadian Court’s order continued to remain operative and had not been stayed, modified or set aside. He also submitted that the child’s welfare would be best served by return to Canada, where the child had access to structured education, healthcare and developmental support.
The petitioner further undertook to make residential and logistical arrangements for respondent no. 2 and the minor child in Canada and stated that he would reside separately, if required, to ensure their comfort and privacy.
Respondent’s Arguments
Respondent no. 2 opposed the petition and argued that the petitioner was attempting to enforce a foreign custody order through habeas corpus, which was impermissible.
She submitted that the Canadian Court’s order was not binding on the Indian Court and could only be treated as one relevant factor. It was also argued that the petitioner had not approached the Court with clean hands and had not disclosed relevant facts, including matters relating to the child’s developmental condition and divorce proceedings.
Respondent no. 2 further argued that the child had been living in India since October 2019, had become settled in his school, family and social environment, and that uprooting him after six years would cause emotional and psychological harm.
She also questioned the petitioner’s financial capacity to support the child in Canada and argued that the child’s welfare required continuation of custody with the mother in India.
Analysis of the Law
The Court held that the writ petition was maintainable and could not be rejected merely because it involved consideration of a foreign court order. The Court clarified that it was not sitting as an executing court for the Canadian order, but was exercising constitutional jurisdiction to examine the legality of the child’s continued retention and determine what would best serve the child’s welfare.
The Court held that the welfare of the child remains paramount, but welfare cannot be assessed in isolation from the legality of the child’s continued stay. The child’s prolonged residence in India was the result of respondent no. 2’s non-compliance with a subsisting Canadian Court order, and therefore could not be treated as a neutral or independent circumstance.
The Court further held that a party cannot participate in foreign proceedings, suffer an adverse order, refuse to challenge it in the appropriate forum, and then rely on the passage of time created by non-compliance to defeat the order.
Precedent Analysis
The Court relied on the principles laid down in Nithya Anand Raghavan v. State (NCT of Delhi), where the Supreme Court held that in transnational child custody matters, the Court must consider the welfare of the child, the child’s closest connection, ordinary residence, foreign court orders and the principle of comity of courts.
The Court was also guided by Yashita Sahu v. State of Rajasthan, where the Supreme Court held that when a child is removed from one country to another, especially in violation of a court order, the court must decide whether the matter requires detailed inquiry or whether the child should be returned to the jurisdiction from which the child was removed.
The Court also considered the broader principles emerging from cases such as Dhanwanti Joshi, Ravi Chandran, Ruchi Majoo, and other custody precedents, while reiterating that foreign court orders are not mechanically enforceable but are entitled to substantial weight, especially when passed by a competent court of the child’s habitual residence.
Court’s Reasoning
The Court found that respondent no. 2 had voluntarily participated in the Canadian proceedings and the order dated 19 March 2020 was not passed behind her back. Since the order was never stayed, modified or set aside, it could not be ignored at her convenience.
The Court held that permitting respondent no. 2 to rely on the child’s six-year stay in India would effectively reward prolonged non-compliance with a valid judicial order. It observed that courts cannot allow a parent to create a fait accompli by retaining a child in another jurisdiction and then rely on the passage of time to defeat the other parent’s rights.
The Court also found no material to show that return to Canada would expose the child or respondent no. 2 to physical danger, abuse, neglect, emotional trauma or grave harm. It found that the petitioner had sufficient financial capacity, stable employment and willingness to provide housing, education, healthcare and developmental support for the child.
The Court further noted that the child had a bond with both parents and that the mother’s relationship with the child could be protected through appropriate arrangements before the Canadian Court.
Conclusion
The Delhi High Court allowed the writ petition and directed respondent no. 2 to return the minor child to the jurisdiction of the competent Canadian Court within six weeks by handing over temporary custody to the petitioner.
The Court directed the petitioner to file an affidavit of undertaking regarding residential and logistical arrangements, permitted respondent no. 2 to accompany the child to Canada, and directed handing over of the child’s passport and travel documents. It also directed that if respondent no. 2 failed to comply, the petitioner could seek police assistance for implementation of the order.
Case: Karan Chopra v. State & Anr.
Court: Delhi High Court
Case Number: W.P.(CRL) 1190/2020 with connected applications
Judge: Justices Subramonium Prasad and Harish Vaidyanathan Shankar
Date: 2 July 2026
Result: Writ petition allowed; minor child directed to be returned to Canada within six weeks; temporary custody to be handed over to petitioner subject to undertakings and safeguards.
