Raj HC | Despite order of Canadian Court, HC refuses to allow the return of  10-year-old boy to Canada considering it would not be in his interest

Rajasthan High Court: The Division Bench of Mohammad Rafiq and Goverdhan Bardhar, JJ. dismissed a habeas corpus Petition filed by the petitioner-husband praying for a direction to the respondent- wife to produce before the court the minor child who was a permanent resident of Canada and a citizen of US and cause his return along with the respondent-wife to the jurisdiction of the Court of Canada in compliance of the orders passed by the Superior Court of Justice, Family Court Hamilton, Ontario.

The facts of the case are that the petitioner-husband had alleged that the respondent-wife had wrongly removed their son from his custody. The wife had moved from Ontario, Canada, the place where the three of them were residing at that time, to New York. She then shifted to New Jersey and finally to India along with the son, who was 4 years old at that time. The petitioner challenged this and sought for his custody and his documents like passport, etc. A habeas corpus petition was filed by the husband petitioner, demanding that the wife be directed to produce before the court their son, who was a permanent resident of Canada and was a US citizen, in compliance with orders passed by the Superior Court of Justice, Family Court Hamilton, Ontario. The Canadian Court had also directed various law enforcement agencies including INTERPOL to enforce the custody order. A warrant was also issued against the wife, with imposition of cost of $30,000 upon her.

The High Court, upholding the previously settled law observed that the law has sufficiently developed to rule that despite a pre-existing order for return of a child by a foreign court, the High Court may decline relief for such return. The Court further asserted that the issue should be considered bearing in mind the welfare of the child.

The High Court dismissed the petition of the father stating that the child’s return would not be in his best interests. It observed that if he was forced to go back to Canada in the sole care of his father, it is likely to psychologically disturb him, particularly when he will be required to now adapt to an education system of that country. This would adversely affect his overall growth and grooming as in the absence of his mother.

The Court while dismissing the petition held that  the Court in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. The removal of the child from Ajmer, after he has stayed there for a few years now, would not be in his best interests, especially in view of the fact that he is suffering from chronic asthma and amblyopia. It further opined that it cannot hold the wife guilty of contempt as she cannot be solely held responsible for violation of the settlement terms. The Court gave directions allowing the father to maintain contact with his son. Till the time the child attains majority he shall be kept in the custody of his mother in India. [Naveen Sharma v. State of Rajasthan, 2019 SCC OnLine Raj 63, Order dated 11-01-2019]

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    Canada is a signatory to the Hague Convention, 1980 which declared by law, International Parental Child Abduction (IPCA) as a cognizable criminal offense punishable u/s S 283 with imprisonment up to 10 years. Whereas India is not a signatory to the said convention and it does not consider IPCA as an offense at all. This anomaly has led the High Court of Rajasthan to ignore the order of the Superior Court of Justice, Hamilton, Ontario notwithstanding the abducted child is a permanent resident of Canada and a US citizen, using welfare and best interest of the child as the criterion. The judgment of the HC of Rajasthan deserves to be challenged in the Supreme Court of India as for the jurisdiction o the Indian Courts to decide on a child who is not an Indian national but a PRC holder and a US citizen. It further ignored the fact that the act of abduction took place right in Canada which is an offense but not in India. How can a child abductor take care of the welfare and best interest of the child who has separated the child from the child’s left behind parent and uses the child as a toy to settle marital discord with her husband?

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