As per case facts, the mother and father, married under Canadian law, had a son who is a Canadian citizen. After marital discord, the father returned to India, initially conceding ...
No Acts & Articles mentioned in this case
R/SCR.A/17368/2025 CAV JUDGMENT DATED: 18/03/2026
Reserved On : 05/02/2026
Pronounced On : 18/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO.
17368 of 2025
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2026
In R/SPECIAL CRIMINAL APPLICATION NO. 17368 of 2025
==========================================================
TILLANA SHRIPAL SHAH W/O SHRIPAL SHREYASKUMAR SHAH
THRO POA TUSHAR RAMAKANT DESAI
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR HARSH N PAREKH(6951) for the Applicant(s) No. 1
MANAN K PANERI(7959) for the Respondent(s) No. 2
MS. MONALI BHATT, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
and
HONOURABLE MR.JUSTICE D. M. VYAS
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)
INDEX
Sr.
Section Page
No.
I.INTRODUCTION
3-4
II.CHRONOLOGY OF EVENTS UPTO THE
INITIATION OF PROCEEDINGS BEFORE
4-10
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Sr.
Section Page
No.
THE CANADIAN COURTS
III.
CHRONOLOGY OF EVENTS AFTER THE
INITIATION OF LEGAL PROCEEDINGS IN
THE ONTARIO COURTS
11-24
IV.
CHRONOLOGY OF EVENTS BEFORE THIS
COURT
24-26
V.
CONTENTIONS ADVANCED BY THE
MOTHER
24-29
VI.
CONTENTIONS ADVANCED BY THE
FATHER:
29-31
VII.
QUESTIONS WHICH ARISE FOR
CONSIDERATION IN THIS PETITION
31
VIII.Re: QUESTION (A):
31-43
IX.Re: QUESTION [B]:
43-44
X.
POSITION OF LAW REGARDING CUSTODY
MATTERS OF MINOR CHILDREN WHO
ARE RESIDENTS OF A FOREIGN
COUNTRY
-64
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Sr.
Section Page
No.
XI.
APPLICATION OF THE PROPOSITION OF
LAW TO THE FACTS OF THIS CASE:
64-69
XII. CONCLUSION
69-70
I. INTRODUCTION
1. Tillana Shripal Shah (hereinafter referred to as ‘the
mother’) has filed this petition against her husband
Shrippal Shreyaskumar Shah (hereinafter referred to
as ‘the father’) and has sought for issuance of a writ of
habeas corpus and for a direction to be issued to the
State and to the father to produce Shriyan Shripal
Shah (hereinafter referred to as ‘the son’) and to set
him at liberty.
2. She has also prayed that the father be directed to hand
over the passport of the son to her and for handing
over the custody of her minor son to her, since she is
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the legal custodian of the son as per the orders of the
Ontario court of Justice.
3. The facts, as gathered from the pleadings and from the
arguments that were advanced, which are not in
serious dispute, are stated in a chronological manner,
as follows:
II. CHRONOLOGY OF EVENTS UPTO THE
INITIATION OF PROCEEDINGS BEFORE THE
CANADIAN COURTS
a)On 21.09.2018, the father and mother got married
at Toronto, which is situated in the province of
Ontario in Canada. A record of the solemnization of
marriage has been produced. In fact, it is admitted
in paragraph 3.1 of the petition that the marriage
was solemnized on 21.09.2018 as per the civil law in
Canada.
b)On 11.05.2020, the son was born in Canada, and by
virtue of being born in Canada, he is, admittedly, a
naturalized citizen of Canada by birth.
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c)In 2021, the son was issued with an Overseas
Citizen of India Card (OCI card), as a result of
which, he has a lifelong visa to enter India.
d)In May, 2022, the mother along with the son came
and stayed in India till September, 2022 and in
September 2022, the father also came down to India
and all of them stayed in India till November, 2022
and all of them thereafter returned to Canada.
e)In March, 2023, the mother came down to India and
stayed here for a month i.e., till April, 2023 and
thereafter returned to Canada.
f)It appears thereafter that marital discord set in
between the couple and this ultimately resulted in
an e-mail being sent by the father to the mother on
23.03.2024 (which is produced as Annexure-A1 with
the affidavit-in-rejoinder). It would be useful to
extract the entire contents of the email, in support
of the reasoning provided for in this judgment later.
The said email reads as follows:
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“Hi Tillana,
I'm writing this with a calm mind and after thinking
it through innumerable times. I think it's about time
we part ways for good. I was planning to stay in
Canada till Shriyan graduates from pre-school in
June, but I think I can't take it anymore, specially
after things you told me yesterday. You said things
you shouldn't have said, no matter what! You have
no filters and then threaten me to call 911 after
provoking me. I don't think it’s doing any good to
either one of us or Shriyan.
I tried a lot to work on this marriage. Gave my
everything but got nothing much in return. I don’t
deny the fact that you haven't tried but its just not
meant to be! I stayed late at work or took 10 hr
shifts bcoz I was at more peace there than at home
with you. For me there was no mental peace or much
physical intimacy (even if it was once in a while, it
came with a tag line saying "u swallowed is cum
and I like it more" which I will never ever forget). No
matter how good or bad the situation, you always
want what you want, but u don’t want to give! Mind
you, I stopped supporting you emotionally
intentionally when I stopped getting things which I
longed for. It has to work both the ways! I can go on
and on, but what's the point?
Anyways, I'll be working on winding up my things
as I'll be moving back to India as soon as I can. Its
turning toxic for me here. Specially with you blaming
me that I'm abusing you mentally, physically and
financially!! Really?
Mentally: you do whatever u want, treat Shriyan in
whatever way u think is right (good or bad) and give
me stress all the time and I'm abusing u mentally?
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Physically: you hit and push me all the time. There
is hardly any proper sex happening between us and
I'm abusing you physically?
Financially: considering the fact that we have been
married for 5.5 years (66 months) and our monthly
expenses are atleast $5K, I've spend already $330K.
That's almost 2 crore INR. Not even calculating
student loan and other things I had to take to do to
stay here with you! Have u even seen that kind of
money in your life.. and u say I'm abusing u
financially? Have u not seen how our other friends
live in basement and without cars even when they
are earning twice than us. I tried to give u every
luxury that I could afford from day one, but I'm
abusing you financially.. wow!!
Earlier I always wished that Shriyan and you would
accompany me to India and I can take care of the
rest, but with present circumstances where you
threaten me to call 911 and blame me for things
which I don’t do, I think it would be best that we
part ways. I would be happy to take Shriyan with
me and take care of him, but I know that you and
your extended family (who has never wished or will
never wish good for you) will not let that happen.
Laws also say that the kid has to be with the mom
until a certain age and hence I'm left with no choice.
Let me know if you have something else on your
mind and would like to take Shriyan with me. I will
be more than happy to oblige.
I'm going to start selling my things and wind up
everything as soon as I can. If you need or want
anything (bed, sofa tv, etc) its yours! You can keep it.
Shriyan's daycare expenses will be taken care of
until June since you receive a greater amount in
child care benefits than what they charge at
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daycare. The amount is getting deducted from your
account since March 01 st.
As far as rent of the house is concerned, it will be
taken care of until May 31st. We have to vacate it on
May 31st as per the landlord's notice and I will keep
it that way, unless you want to keep paying and
extend it. In that case, talk to him directly since I will
be officially accepting his notice of vacating it.
If you decide to keep any of the things (sofa, bed,
kitchen things, etc) it will be completely your
responsibility to vacate it on May 31st since I will be
gone before that mostly. Also from now on, all your
bank accounts and credit cards will be your
responsibility. Start managing them and let me
know if you have any questions. Open a zero
balance account asap. Nothing else comes to mind
as of now. Will text/email you if something comes
up.
Last 5-6 years has been one hell of a ride.
Unfortunately, we don’t like anything about each
other anymore. Poor Shriyan might have to suffer
because of that. I will try my best so that our
separation doesn't affect him much. But again, your
and my definition of that would be quite different
like everything else.
Good luck to you. Hope you find your peace as I
hope I might find mine. Also a small request: please
make sure that Shriyan atleast remembers who his
dad is/was!
-Shripal”
4. As can be seen from the said e-mail, which came about
at an undisputed point of time, the father had stated
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in categorical terms that he could not get along with
the mother and that the marriage had failed. He has
by this e-mail informed the mother that he would be
winding up things and moving back to India as soon
as he could.
5. In this e-mail, as far as the son is concerned, it is
clearly stated that the father had wished that the son
and the mother would accompany him to India, but
given the present situation, that was not possible and
it would be in the interest of both the parties to part
ways. He has also stated that the mother and her
family would not allow him to take the son, and he has
also conceded that the laws would also say that the
child has to be with the mother until a certain age and
left with no other choice he was agreeing to the mother
having custody of the son. In fact, he has stated that
the son's day care expenses would be taken care of
until June and the mother would receive a greater
amount in childcare benefits. This e-mail makes one
thing clear and that is the father had decided to part
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ways with the mother and had also agreed to allow the
mother to have custody of the son.
6. During the course of arguments, it was also admitted
that in the month of December, 2024, the father had
gone to Canada and stayed there for two weeks. It was
stated that he stayed in the same building in which
the mother resided, though separately, and thereafter
returned to India after two weeks.
7. In the month of April, 2025, it was stated that the
father returned to Canada and started residing there.
8. It is apparently clear from the above that from March,
2024 till April, 2025, the custody of the son was with
the mother, and this was with the clear consent of the
father.
III. CHRONOLOGY OF EVENTS AFTER THE
INITIATION OF LEGAL PROCEEDINGS IN THE
ONTARIO COURTS:
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9. On 06.08.2025, the mother initiated proceedings
before the Ontario Court of Justice making claims
under the Family Law Act or the Children's Law
Reform Act and sought support for herself, for her son,
decision-making responsibility for the son, parenting
time with the son and for spousal support.
10. The assertions made in support of the application
may not be relevant, except for referring to the
following statements made by the mother.
“9. In September, 2024 Mr. Shah flied to India just to
escape from his responsibilities towards his son.
10. Since then, I am taking care of my son all alone.
11. I seek 100% decision making responsibility and
child support since the date of separation.
12. I am agreeable to give parenting time to Mr.
Shah every alternate weekend from Friday evening
5.00 pm to Sunday evening 5.00 pm.”
11. A reading of this statement would also indicate that
the mother had categorically stated before the Ontario
Court that she was taking care of the son all by
herself since September, 2024 and was therefore
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seeking 100% decision making responsibility and also
child support since the date of separation.
12. This would tally with the admitted fact that the father
had left Canada in the year 2024 and in the month of
March, 2024 preceding his departure, he had
categorically stated in the e-mail referred to above
that he had conceded for the son to stay with the
mother.
13. On 03.09.2025, the father filed his reply to the claim
of the mother. In this reply, he agreed to Claim Nos.
11 and 14, i.e., support for the son and parenting
time with the son, respectively, which had been
sought for by the mother. He, however, denied the
claim Nos. 10, 13, 16, 30 and 32 i.e., the claim made
by the mother for support claimed by her, decision
making responsibility for the son and the spousal
support that was sought. Claim Nos. 30, 32 and 50
related to costs pre-judgment interest and arrears of
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support since the date of separation, which may not
be relevant for the present case.
14. In this statement accompanying his reply, the
following would be relevant for the purpose of this
case and the same is therefore extracted:
“In September 2024, I departed for India for medical
reasons, as my health was deteriorating. For a year
beforehand, I had attempted to persuade my wife to
relocate to India, where I am a dental surgeon and
where we would have family support, but she
consistently declined. At the age of 36, my health
was failing, and I was required to take several
medications daily due to numerous health problems
and undue stress. I always offered my wife the
option of relocating to India with me and our son, but
she consistently declined. Consequently, I made the
decision to travel to India in September 2024 for a
period of three months to focus on my health and
address my medical concerns. I want to emphasize
that I did not abandon my family. Indeed, I provided
support by assisting her in acquiring a new car,
aiding in the move to a condominium, and also
providing her with $11,000 to help with their needs.
I maintained communication and spoke with my wife
and son daily from India. Upon my return in
December 2024 to spend a month with my family, I
was unfortunately denied access to the residence by
her and was compelled to secure a guest suite for
approximately 25 days to spend time with my son.
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I returned to India in mid-January 2025. My health
significantly improved there, and I was able to
discontinue all medications. My wife and I also
participated in couple’s therapy while I was in India,
and I covered the costs for all sessions, including
hers. I have consistently desired for our relationship
to thrive and have always shielded our son from any
difficulties we faced. I have consistently prioritized
our son’s well-being above all else.
I must respectfully disagree with the assertion that
my wife has been solely responsible for our son’s
care. I have maintained daily contact with them and
provided financial support, even while I was in
India, until my return to Canada in April 2025. Upon
my return, and due to my wife’s decision not to
allow me access to the new home, I secured a rental
unit in the same building and have resided there
since. My son resides with both of us, dividing his
time relatively evenly between my care and that of
his mother, with the majority of his time spent in my
presence.
While I am interested in assuming complete decision-
making responsibility for my son, considering that a
child typically benefits from the involvement of both
parents and prioritizing his well-being, I would
prefer to share decision-making responsibilities on a
50-50 basis. I am prepared to fulfill my child support
obligations in accordance with the established
guidelines and support table. I have, in fact, already
remitted $11,000 prior to my departure for India,
and I kindly request that this amount be taken into
consideration when determining the child support
calculation.”
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15. This statement of the father in the reply would also
admit of the fact that he was not in Canada from
September, 2024 and returned to Canada only in
April, 2025 (apart from a brief period in December,
2024).
16. It may be relevant to state here that the son was born
in 2020, so as of September, 2024, he was only about
4 years and 4 months, and ever since, the son was
under the care of the mother in Canada and that too
with the consent of the father.
17. On 05.11.2024, the father addressed an e-mail
raising several concerns regarding the son. In this e-
mail, he has stated that the behaviour of the mother
was affecting the son and he was therefore calling
upon the mother to shield him and requested her to
refrain from discussing the differences between them
with the son.
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18. Notwithstanding the fact that the father filed a reply
before the Ontario Courts on 03.09.2025, he left
Canada on 07.12.2025 to India.
19. On arrival in India on the 08.12.2025, he sent an e-
mail on 09.12.2025 (Annexure-A2 to the affidavit-in-
rejoinder), in which he has stated as follows:
“Hi Ms. Brooks & Ms. Soares Barday,
Greetings. I trust this email finds you in good health.
I am writing to inform you that Shriyan will be
unable to attend school for the next few weeks,
commencing today and potentially extending until
the beginning of January, due to our sudden travel
plans.
We would appreciate your understanding and
excused absence for him during this period.
Thank you.
Regards”
20. As could be seen from this e-mail, the father had
decided to return to India along with his son and had
thereafter thought it fir to inform the school about his
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absence. In fact, he has stated that the son would not
be able to attend school until the beginning of
January, 2026 due to the sudden travel plans.
21. It is not in dispute that the father did bring the son to
India on the 07.12.2025 without securing the
permission of the mother. It is sought to be argued
that the mother and father were in joint custody of
the son and there was no order barring the father
from traveling with the son to India.
22. The fact, however, remains that the father brought
the son to India without the permission of the mother
and after he had filed a reply on 03.09.2025 to the
claim made by the mother before the Ontario Courts
on 06.08.2025.
23. On 10.12.2025, the father proceeded to file a brief to
the claim made by the wife. This brief was filed on the
10.12.2025 i.e., after he had returned to India.
24. In this brief, at paragraph-2, the father has admitted
that he travelled to India with the son and that the
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son was under his care. He has made certain
assertions regarding the manner in which the mother
was taking care of the child and has sought dismissal
of the mother's claim. There is also a schedule
attached to this brief in which he states that it would
be in the best interest of the son if he was allowed to
take care of him.
25. It is also asserted in this brief that both of them being
Hindus by religion, it would not be in the best interest
of the son to grow up experiencing and observing his
mother in an unhealthy relationship and it would be
better for the son to be brought up with Hindu
cultural values, Indian ethos and traditional Hindu
identity.
26. It is asserted that as on 10.12.2025, he was in the
company of his paternal grandmother, paternal uncle
and aunt and their minor child and all of them were
cohabiting together in a joint shared residential unit,
and the son therefore had the support of a Hindu
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joint family and was living in the company of his
extended family.
27. The father had basically taken the decision to return
to India along with the son without seeking the
permission of the mother and sought to file a brief
before the Ontario Courts stating that the best
interests of the child was that he should reside with
him.
28. An assertion is also made that the father was the
natural guardian under the provisions of the Hindu
Minority and Guardianship Act and that the custody
and care of the son would therefore be lawful. An
assertion is also made that there was no restriction
on him by means of any order passed by the Court to
travel to India along with his son.
29. It is ultimately stated by him that the mother can
relocate to India to live as a family with the son and
the father and that it would be in the best interest of
the son if both the father and mother stayed in India.
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30. The wife thereafter moved to the Ontario Court
complaining about the removal of the son from
Canada and this resulted in orders being passed by
the Ontario Court. In this order, it has been recorded
that the mother and father had a “without prejudice
parenting arrangement, whereby the father would
have parenting time from Sunday to Monday morning
but the father had not returned the child on Monday
i.e., December 8, 2025 and the wife had later learned
that the child was taken by the father to India.”
31. The order of the court reads as follows.
This case is about Shriyan Shripal Singh born May
11, 2020 (age 5). The Applicant is his mother and
the Respondent is his father.
The matter is actively before the court, the
application is issued on August 6, 2025. The father
has filed an Answer dated September 3, 2025. The
parties had their first appearance court date on
September 18, 2025 to which they both attended.
They have an initial case management court date
before this judge scheduled for next week on
December 17, 2025. In fact, both parties have filed
their briefs for such a court case and appear to be
ready for it.
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The mother now comes to the court to say that the
father has left the country with Shriyan without the
knowledge or consent of the mother.
Her evidence describes that the parties had a
without prejudice parenting arrangement whereby
the father would have parenting time from Sunday
to Monday morning weekly. On Monday December 8,
2025, the child was not returned. Upon investigation
and after calling 911, the mother learned that the
child was taken by the father to India.
There is no question that the child’s habitual
residence in the Region of Peel, Province of Ontario,
Canada. The father’s own Answer describes the
child’s living circumstances as such.
The travel to India with the father was not with the
mother’s consent. He ought not to have done that
and he should immediately return the child to
Canada.
The mother’s requests on a temporary without
prejudice basis shall be granted given the above
with the exception of the restraining order – that
claim shall be adjourned for further evidence and to
be addressed after service on the father.
The mother should immediately seek out and retain
legal counsel who has the experience to assist in
non-Hague country wrongful removal cases.
Orders:
On a temporary without prejudice basis
The Applicant, Tillana Shripal Shah, is granted sole
decision-making responsibility for the child, Shriyan
Shripal Singh born May 11, 2020 on all significant
decisions about his well-being including with respect
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to his health, education, culture, language, religion,
spirituality and significant extra-curricular activities
pursuant to s.28 of the CLRA
The child, Shriyan Shripal Singh born May 11, 2020,
is habitually resident in the Region of Peel, Province
of Ontario, Canada.
The respondent Shripal Shreyaskumar Shah shall
immediately return the child to this jurisdiction and
into the primary care of the applicant.
There shall be a police enforcement provision to give
effect to this order
Once the child is back in this region, the respondent
shall not further remove the child from the region of
Peel.
Court administration to prepare and issue today's
order. Unrepresented party approval is waived.
The mother shall ensure that the father is served
with the motion materials and this endorsement
Scheduling of this case remains unchanged. The
next court date is December 17, 2025 at 11:30 am.
In person. Initial case management conference and
motion review.
32. As could be seen from the above, the mother claimed
that there was a without prejudice parenting
arrangement whereby the father had parenting time
from Sunday to Monday and the father, having taken
the son to have his parenting time on Sunday, had
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failed to return the child on Monday. During the
course of arguments, it was admitted by the learned
Counsel for the parties that there had indeed been an
informal arrangement where the father was also given
parenting time by the mother voluntarily.
33. The Ontario Court which was seized of the matter has
passed an order on 12.12.2025 directing that the son
should be immediately returned to Canada
fundamentally because he was habitually resident in
the region of Peel, province of Ontario in Canada. This
order was passed by the Ontario Court on 12.12.2025
ex-parte i.e., without notice to the father.
34. On 17.12.2025, the Ontario Court had recorded the
events that had unfolded until then and noticed that
the father was not present before it nor was the child
returned. The Ontario Court accordingly adjourned
the matter to 15.01.2026 and stated that the existing
orders would continue.
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IV. CHRONOLOGY OF EVENTS BEFORE THIS
COURT:
35. On 22.12.2025, the mother has thereafter filed this
writ petition seeking for issuance of a writ of habeas
corpus and was posted before the Court on
05.01.2026 on which day, notice of the petition was
ordered on the same day. Appearance, however, was
entered by a learned Counsel on behalf of the father
on the same day and a request was made for grant of
time to file a reply.
36. A complaint was also made that the mother was not
even being given online access to her 5-year-old son.
In order to remove any confusion, this Court directed
the father to file an affidavit stating that there would
be no hindrance or impediment to the online access of
the mother with her son
37. The maternal grandfather, through whom the petition
had been presented, was also given the right to have
access to his grandson whenever he desired.
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38. On 15.01.2026, the date that had been scheduled by
the Ontario Court, the Ontario Court adjourned the
matter to 17
th
March, 2026.
39. On the very same day i.e., on 15.01.2026, the matter
was posted before this Court and this Court taking
into consideration the age of the son, observed that it
would be beneficial for the parties to arrive at a
mutually acceptable solution and that the parties
should not invite any order from the Court and to
facilitate a possible reconciliation, the matter was
adjourned to 03.02.2026.
40. However, on 20.01.2026, the father presented an
application requesting this Court to refer the parties
to the Gujarat High Court Mediation Centre. This
Court, taking note of the manner in which the matter
was being conducted, and realizing that the mediation
proceeding would not be successful given the
arguments being advanced, proceeded to call upon
the parties to argue the matter on merits.
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41. Accordingly, the matter was heard on merits on
03.02.2026 and 05.02.2026 and after the arguments
were concluded and while reserving the judgment,
this Court directed the mother to place on record the
marriage certificate and also directed the father to
deposit the passport and the OCI card of the son into
Court, which directions have been complied with by
both the parties.
V. CONTENTIONS ADVANCED BY THE MOTHER:
42. Shri D. C. Dave, learned Senior Counsel and Shri
Harsh Parekh, learned Counsel appearing for the
petitioner, advanced the following contentions:
a) The mother and father have been admittedly
married under the Canadian laws and are subject
to the jurisdiction of the Canadian Courts.
Consequently, if the Canadian Court had held that
the father had brought the minor son out of Canada
without the permission of the mother and had
thereafter gone on to disobey the order of the
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Canadian Court which had directed him to return
of the son, it was obvious that the custody over the
minor son was unlawful, and his custody would
therefore have to be returned to the mother.
b) On facts, the father had, in March, 2024 itself,
admitted that the mother would be in custody of the
minor son and he had also left Canada in
September, 2024 (except for a brief period of two
weeks in December, 2024) and had ultimately
returned to Canada in April, 2025. Thus, for more
than a year, the minor son, who was aged about
four years as of 2024, was in the sole custody of the
mother, which had in fact been acceded to by the
father, making the custody of the mother lawful and
in the light of this particular fact, it was unlawful
on the part of the father to have removed the son
from the custody of the mother and brought him to
India.
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c) It was not in dispute that there was an informal
arrangement whereby the father would have
visitation rights whereby he had the right to have
custody of the minor son only on the weekends and
this informal arrangement was entered into in the
background of proceedings regarding the custody of
the son in the Canadian Courts. In this situation, a
breach of an informal arrangement by transporting
the son out of the country without his mother’s
consent and thereby disrupting his entire life,
would clearly be detrimental to the welfare of the
son.
d) In law, though the father is the natural guardian, so
long as the son is of a tender age, such as in the
instant case, the best interest of the son would be
for the mother to have custody.
43. The citations relied upon by the learned counsel for
the petitioner are noted at a later stage in this
judgment.
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VI. CONTENTIONS ADVANCED BY THE FATHER:
44. On the other hand, Shri Anil Malhotra, learned
Senior Counsel appearing for the father, made the
following contentions:
a) Admittedly, there were legal proceedings regarding
the custody of the son and spousal support and yet
the mother had not sought for and had not
obtained any restraint order restraining the father
from bringing the son to India and since there was
no legal bar for the father to take the son to India,
the assertion that the the father had acted in an
unlawful manner cannot be accepted.
b) The parties being Hindus, obviously, the custody of
a Hindu child would be governed by the provisions
of the Hindu Minority and Guardianship Act and
not by Canadian laws.
c) The minor son, being a Hindu, would be
traumatized by the act of his mother staying in an
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adulterous relationship, and this would therefore
not be in the best interests of the child.
d) The son was living in a secure environment, in a
joint family in India, and the best interests of the
son would be for him to continue to stay in India.
e) The maternal grandfather had been given unbridled
access to the minor son, and the wife was also given
unrestricted video conferencing access to the son
and therefore, no prejudice would be caused to the
mother if the son continued to stay in India.
f) The citations relied upon by the learned Senior
counsel appearing for the respondent are noted at a
later stage in this judgment.
45. In the light of these contentions, the following
questions would arise for consideration in this writ
petition.
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VII. QUESTIONS WHICH ARISE FOR
CONSIDERATION IN THIS PETITION:
(A) Whether the removal of the son from Canada and
his transfer to India without the permission of the
mother would result in the father being in
unlawful custody of the minor son?
(B) Whether the best interests of the son would be
served by permitting him to stay with his mother
or would it better served by permitting his father
to have his custody in India?
VIII. Re: QUESTION (A):
46. In this case, it is not in dispute that the mother and
father got married in Canada under the Canadian
laws. Since the couple were married under the
Canadian laws, it is obvious that they would be
governed by the laws under which they were married.
It was no doubt open for them to get married under
the provisions of the Hindu Marriage Act, in which
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case, the situation would have been a bit different.
The couple, being educated professionals, chose to get
married consciously under the Canadian laws, and as
a consequence, their rights and obligations under
that marriage would have to necessarily be governed
by the Canadian laws and not by the Indian laws.
47. Another way of looking at this situation is that the
parties, though being Hindus, chose not to get
married under the Hindu laws or under their personal
law i.e., the Hindu Marriage Act, and they would
therefore be estopped from contending that the laws
under which they got married i.e., the civil laws of
Canada, are inapplicable to them.
48. In the email of 23
rd
March, 2024, which has already
been extracted above, the father categorically stated
that the marriage had ended and that he did not wish
to stay in Canada and had requested the mother to
take care of his son. In fact, he has also categorically
stated as follows:
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“Earlier I always wished that Shriyan and you
would accompany me to India and I can take care
of the rest, but with present circumstances where
you threaten me to call 911 and blame me for
things which I dont do, I think it would be best that
we part ways. I would be happy to take Shriyan
with me and take care of him, but I know that you
and your extended family (who has never wished
or will never wish good for you) will not let that
happen. Laws also say that the kid has to be with
the mom until a certain age and hence I'm left with
no choice. Let me know if you have something else
on your mind and would like to take Shriyan with
me. I will be more than happy to oblige.
49. This portion of the e-mail would clearly establish that
the father had consciously stated that the minor son
would be with the mother and he had no objections
for the same. Importantly, he has also acknowledged
the fact that the legal position was that a son has to
be with the mother until a certain age and he had no
choice in the matter. If the father, who is a dentist by
profession, categorically states at an undisputed point
of time i.e., when the marital discord had erupted and
the son was barely 4 years old, that the mother could
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have custody of the child and this was in accordance
with law, it would not be open for him to now contend
that the best interests of the child would be if his son
stayed with him and not with the mother.
50. It must also be relevant to state here that when the
wife initiated proceedings before the Ontario Court,
the father did not raise any contention before the
Canadian Courts that they did not possess
jurisdiction. In fact, he entered a plea and also
submitted a brief in which he did not raise any
objections regarding the jurisdiction of the Canadian
Courts. If that is the resultant position, the father, in
the light of the orders passed by the Canadian Court
after he returned to India to return the child to
Canada, was required to comply with the orders
passed by the Canadian Courts. If the father chooses
to defy an order passed by a competent Court which
had the jurisdiction to decide the question of marital
disputes and consequently the custody of the child,
he cannot invoke the jurisdiction of this Court so as
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to facilitate his defiance of the order of the Canadian
Court.
51. The following conduct of the father in regard to the
custody of his son would also have to be examined.
52. As noticed above, the father filed a reply in the
Canadian Court on 03.09.2025. During the pendency
of these proceedings, on 07.12.2025, he left Canada
and brought his son along with him to India without
informing the Court or more importantly without
securing the permission of his wife.
53. After the father returned on 08.12.2025, he has sent
an e-mail on 09.12.2025 (Extracted above) stating
that his son would be absent from school till the end
of January, 2026. However, in this petition, he makes
an averment that he has returned to India for good
and would want his son to continue to stay in India
along with him.
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54. On 10.12.2025, i.e., two days after he returned to
India, he has submitted the brief in which he has
stated as follows:
(1) Shriyan is about 5 years and 6 months old. Since the
parents were separated and were living in different
apartments in the same residential building (in Canada),
Shriyan was in primary custody, care and control of his
father Shripal Shreyaskumar Shah and was
permanently residing with his father in Canada.
(2) Tillana Shripal Shah i.e. the mother, had voluntarily
and willingly chosen to live separately and
independently. She was/is cohabiting with her male
partner Mr. Pradeep Meta in a separate apartment in
Canada in the same building. She was/is in full time
employment with sufficient independent funds of her
own for her maintenance and upkeep.
(3) As a primary care giver in Canada, the father's
responsible for permanent shelter, schooling, welfare,
care and control on a day to day basis. In the school
records, in Canada, the address of minor Shriyan's
apartment of the father is shown and recorded as the
permanent address of minor Shriyan.
(4) Shriyan is of tender age. For him, to experience his
mother in an extra-marital relationship whilst his natural
parents are not officially or legally divorced, is an
inappropriate influence for his normal mental
development in formative years and it's having a very
negative impact on his positive growth.
(5) Shriyani's mother openly prefers and chooses the
company of her male partner in preference to the welfare
of minor Shriyan. She does not provide good moral
behavior, support facilities for his upbringing with a good
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Parental control, it is confusing to see his biological
mother prefer to live with another male partner in
preference to his biological father as a family.
(6) That being Hindu by religion, it is not in the best
interest and welfare for Shriyan to grow up in
experiencing and observing an unhealthy relationship of
his mother by cohabiting as a family. Upbringing of
Shriyan with Hindu cultural values, traditional Hindu
identity and good moral principles are very important for
him.
(7) As of today, Shriyan is in the company of his paternal
grandmother, paternal uncle and aunt, and their minor
child, all cohabiting together in a joint shared residential
unit. Shriyan is in a Hindu joint family set up with all
support and extended family company. His care, nurture,
education, attention, cultural and moral values are well
looked after in a family home where a lot of attention is
given to Shriyan for his mental stability. Shriyan is
extremely happy, secure, safe, well supported & very
comfortable.
(8) The father, Shripal, who is a Dental Hygienist in
Canada & a practicing Dental Surgeon by profession, in
India, has worked for over 10 years in the area and
locality where they are presently residing. The
permanent domicile of father, mother and Shriyan is now
in India, in a comfortable place where people of his
religion, culture and identity reside. Hence, Shriyan is
given the proper environment for his upbringing. Shriyan
has Overseas Citizen of India (OCI) status in India,
which gives him a life long visa free entry & permanent
resident status, with no restrictions or conditions.
(9) Just in a few days, Shriyan has adjusted very well to
this environment as he has visited India in a few days
with his father and mother adjusted very well to this
family home, he has the company of his younger cousin
brother with frequently paternal grandmother, uncle,
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aunt & his dad (Shripal) looking after all his personal
needs, food requirements, health care. Shriyan has made
new friends and enjoys extracurricular activities. The
paramount interest and welfare of Shriyan is well
secured in India. Hence, the best interest.
(10) Regardless, the mother is free to have online access,
regular telephonic contact, and frequent interaction on
whatsapp India from Canada whenever she wants.
Besides, the mother too is free to visit Shriyan in India,
on a mutually agreed plan. The mother too can reside in
the same postal code in India, which establishes that
Shriyan is at a permanent secure place secure
environment domicile. Hence, Shriyan is in a safe,
protected and culturally sound environment.
(11) In the facts and circumstances stated above,
Shriyan being in the safe custody of his biological father,
as his natural guardian under the provisions of Hindu
Minority and Guardianship Act, 1956 (HMGA), the
custody, care and control of Shriyan is by no means
allegedly illegal or unlawful. Under Hindu law, a minor
child in the custody of his biological father is legally
recognized as conferring the status of a legal guardian
under the HMGA. This legitimate status cannot be
displaced, disputed or challenged by the mother.
(12) The father presently in India has not violated any
law of Canada nor has he infringed any Court Order of
the Canadian Court. No travel restriction, restraint or
prohibition was imposed upon the father disallowing him
to take Shriyan to India. Shriyan has previously travelled
to India with his parents which was never objected to or
opposed by either parents.
(13) Most respectfully, the father with all humility
submits that it is in the best interest and welfare of
Shriyan to be in the care, control, guardianship and
custody of his father in India. All decisions in the
upbringing of Shriyan in India will be taken in
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consultation with the mother. She is free to have online
access, communication on phone from Canada, besides
being at liberty to visit and have physical contact with
Shriyan in India, at a time agreed upon. The mother, if
she so wishes, can relocate to India to live as a family
with Shriyan and her husband (Shriyan's father) as the
parties are not divorced. It will be in the best interest and
welfare of Shriyan to cohabit with his father and mother
in India, where extended families of his parents
permanently reside and where Shriyan's father is a
respected practicing Dental Surgeon.”
55. As could be seen from the above, though in the e-mail
of March, 2024, he has categorically stated to his wife
that she could take care of the minor son in any
manner that she thought fit, but only made a request
that he be taken care of in an appropriate manner, he
has nevertheless chosen to contend in this brief filed
after he returned to India that he was in primary
custody.
56. It is to be noticed here that right from September,
2024 till the father returned in April, 2025, the son
was in the sole custody of the mother and was being
brought up by her alone. The brief visit for about two
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weeks by the husband in December, 2024 would not
in any way result in a situation where the custody of
the mother over the son translated into a shared
custody. If, at an undisputed point of time, the
mother was in sole custody of the minor son with the
consent of the father, it is not open for the father to
contend before this Court that he was entitled to have
custody of the child exclusively and at a place of his
choice.
57. It is not disputed by the father during the initial brief
that he had filed on 03.09.2025 that the mother was
in sole custody of the child from September, 2024 till
April, 2025. Even the father, in fact, before the
Canadian Courts, has not pleaded at any point of
time, that he should be given exclusive custody of the
son. The fact that the mother was given exclusively
custody in September, 2024 and the son continued to
be in her exclusive custody, at least until April, 2025,
only goes to show that the custody of the son was
lawfully with the mother.
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58. In a marital dispute before a Court of law, in which
the custody of the five year old is a subject matter, if
the father had voluntarily conceded exclusive custody
to the mother and had thereafter returned to India
without the consent of the mother, it would be
improper for the father to contend that he was having
joint custody of the son.
59. It is also to be stated here that if the son of four years
is brought up by the mother all by herself for more
than a year, the father having chosen to return to
India, it will have to be held that the responsibility of
the child was handed over to the mother and the
father cannot claim that he was having joint custody.
The mere fact that the mother agreed for an informal
arrangement whereby the father would have custody
over the child over the weekends would not translate
that kind of an arrangement into a joint custody of
the child.
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60. If the father chose to stay in an apartment in the very
same building so that he could spend time with his
son, that would also not translate into a joint custody.
At best, this arrangement would lead to an inference
that the mother did not have any objection for the
father to have access to his son every day. Permitting
or facilitating visitation by the mother to the father, in
the best interests of the child, does not mean that
custody becomes a shared custody.
61. It is therefore clear from the above set of facts, that
the custody of the child was lawfully with the mother,
and since it is not in dispute that the child was
removed from Canada without the permission of the
mother and brought to India, the father’s custody
would have to be declared as unlawful.
62. Lastly, as also noticed above, the Canadian Court,
whose jurisdiction the father has acceded to, has
passed an order directing the return of the child to
Canada and in the background, it would not be
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appropriate for this Court to hold that the custody of
the father is a lawful custody. In fact, the orders of
the Canadian Court, only reinforces the above
conclusion that the father is in unlawful custody of
the son. We, therefore, hold that the custody of the
minor child by the father is unlawful and should be
restored to the mother forthwith.
63. Question [A] is accordingly answered.
IX. Re: QUESTION [B]:
64. Notwithstanding the above conclusion of ours
regarding unlawful custody of the father over the son,
we would also have to examine whether the
restoration of the custody of the son to the mother is
in the best interests of the son.
65. Learned Senior Counsel contended that, in law, our
Courts have consistently held that the only
consideration, when it came to the question of
custody of the child, would be the welfare of the child.
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He submitted that there was a long line of decisions
rendered by the Supreme Court, wherein,
notwithstanding the subsistence of of legal
proceedings in foreign Courts, the Indian Courts
would only be guided by the best interests of the child
and not by the legality of custody with reference to
orders passed by the Foreign Court.
X. POSITION OF LAW REGARDING CUSTODY
MATTERS OF MINOR CHILDREN WHO ARE
RESIDENTS OF A FOREIGN COUNTRY
66. The Apex Court has over a period of time rendered a
series of decisions in relating to the custody of a child
wherein the parties were Indians or Indians who had
obtained a foreign citizenship and who were litigating
in foreign courts (wherein they were residing) in
relation to their marital dispute, including the issue
relating to the custody of the child, the transfer of
child to India, etc., was the subject matter of the
litigation. In fact, learned counsel for the parties, as
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indicated above, have relied upon a series of
decisions.
67. For the sake of convenience, all the decisions in this
regard, which have been cited by both the learned
counsel, are as follows:
A)In the case of Nithya Anand Raghavan v. State of
NCT of Delhi (2017), a 7 year old female child had
been brought to India from the UK by the mother
and Father sought custody of minor daughter by
filing a writ petition of habeas corpus contending
that she should be returned to the UK as per UK
court order, wherein, the Hon'ble Supreme Court
has held as under:
“26. The consistent view of this court is that if the
child has been brought within India, the Courts in
India may conduct (a) summary inquiry or (b) an
elaborate inquiry on the question of custody. 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
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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. That has to be done bearing in
mind the totality of facts and circumstances of
each case independently. Even on close scrutiny of
the several decisions pressed before us, we do not
find any contra view in this behalf. To put it
differently, the principle of comity of courts cannot
be given primacy or more weightage for deciding
the matter of custody or for return of the child to
the native state.”
B)In the case of Mrs. Kanika Goel v. State of Delhi
(2018), 3 year old female child was brought to India
by the mother in contravention of an order passed
by a Court in the USA and Father sought custody of
child by filing a writ petition of habeas corpus,
wherein, the Hon'ble Supreme Court has held as
under:
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“23. The issue ought not to be decided on the basis
of rights of the parties claiming custody of the
minor child but the focus should constantly remain
on whether the factum of best interest of the minor
child is to return to the native country or otherwise.
The fact that the minor child will have better
prospects upon return to his/her native country,
may be a relevant aspect in a substantive
proceedings for grant of custody of the minor child
but not decisive to examine the threshold issues in
a habeas corpus petition. For the purpose of
habeas corpus petition, the Court ought to focus on
the obtaining circumstances of the minor child
having been removed from the native country and
taken to a place to encounter alien environment,
language, custom etc. interfering with his/her
overall growth and grooming and whether
continuance there will be harmful. This has been
the consistent view of this court as restated in the
recent three Judge Bench decision in Nithya Anand
Raghavan (supra), and the two Judge Bench
decision in Prateek Gupta (supra). It is
unnecessary to multiply other decisions on the
same aspect.”
C)In the case of Prateek Gupta v. Shilpi Gupta
(2017), 5 year old male child had been brought to
India by the father in violation of the custody orders
passed by the US Courts and Mother sought
custody of child by filing a writ petition of habeas
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corpus, wherein, the Hon'ble Supreme Court has
held as under:
“32. The gravamen of the judicial enunciation on
the issue of repatriation of a child removed from its
native country is clearly founded on the
predominant imperative of its overall well-being,
the principle of comity of courts, and the doctrines
of "intimate contact and closest concern"
notwithstanding. Though the principle of comity of
courts and the aforementioned doctrines qua a
foreign court from the territory of which a child is
removed are factors which deserve notice in
deciding the issue of custody and repatriation of
the child, it is no longer res integra that the
overriding determinant would be the welfare and
interest of the child. In other words, the invocation
of these principles/doctrines has to be judged on
the touchstone of myriad attendant facts and
circumstances of each case, the ultimate live
concern being the welfare of the child, other factors
being acknowledgedly subservient thereto. Though
in the process of adjudication of the issue of
repatriation, a court can elect to adopt a summary
enquiry and order immediate restoration of the
child to its native country, if the applicant/parent
is prompt and alert in his/her initiative and the
existing circumstances ex facie justify such course,
again in the overwhelming exigency of the welfare
of the child, such a course could be approvable in
law, if an effortless discernment of the relevant
factors testify irreversible, adverse and prejudicial
impact on its physical, mental, psychological,
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social, cultural existence, thus exposing it to
visible, continuing and irreparable detrimental and
nihilistic attenuations. On the other hand, if the
applicant/parent is slack and there is a
considerable time lag between the removal of the
child from the native country and the steps taken
for its repatriation thereto, the court would prefer
an elaborate enquiry into all relevant aspects
bearing on the child, as meanwhile with the
passage of time, it expectedly had grown roots in
the country and its characteristic milieu, thus
casting its influence on the process of its grooming
in its fold.”
D)In the case of Rohan Rajesh Kothari v. State of
Gujarat (2024), a female child aged 4 was brought
by the mother from USA to India, and later also
gave birth to second female child in India. The
Father sought custody of minor daughters by filing
a writ petition of habeas corpus, wherein, The
Hon'ble Supreme Court has held as under:
“1. Having heard learned Senior Counsel/counsel for the
parties and after careful perusal of the material placed on
record, we are satisfied that the petitioner has not
approached the US Courts or Indian Courts with clean
hands. In any case, his effort to secure temporary custody
of the children through a Writ of Habeas Corpus, especially
when both the children are girls and are living with their
mother, can neither be entertained nor appreciated.”
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E)In the case of Sameer Hamsa Ramla v. State of
Karnataka (2022), 3 year 9 month old female child
was brought from the USA to India by the mother
after an alleged assault in the USA and the
husband later obtained a US court order for return
of the female child. Father sought custody of child
by filing a writ petition of habeas corpus, wherein,
the Hon'ble High Court has held as under:
“15. In view of aforesaid enunciation of law by a three
judge bench of the Supreme Court, following broad
propositions relevant for the case in hand may be culled
out:
(i) The remedy of writ of habeas corpus cannot be used for
mere enforcement of directions given by a foreign court
against a person within its jurisdiction and to convert that
jurisdiction into an executing court.
(ii) In a habeas corpus petition, at the outset, the High Court
must examine at the threshold whether the minor is in
lawful or unlawful custody of another person. It can be
presumed that custody of a minor with his/her mother is
lawful.
(iii) In such a case, only in exceptional situation the custody
of the minor can be ordered to be taken away from her
mother for being given to any other person including the
father of the child.
(iv) The other parent can be asked to resort to a substantive
prescribed remedy for getting custody of the child.
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(v) The order of foreign court must yield to welfare of the
child.
(vi) Ordinarily the custody of a girl child who is around 7
years of age must ideally be with her mother unless there
are circumstances to indicate that it will be harmful to a girl
child to remain in the custody of the mother.
(vii) In deserving cases, the courts in India are not denuded
from declining the relief to return the child to the native
state merely because of a pre-existing order of foreign court
of competent jurisdiction, which has to be considered on
case to case basis be it summary enquiry or elaborate
enquiry.”
F)In the case of V. Ravi Chandran v. Union of India
(2009), 7 year old male child was brought from the
USA to India by the mother in contravention of an
order passed by a Court in the USA and the Father
sought custody of male child by filing a writ petition
of habeas corpus, wherein, the Hon'ble Supreme
Court has held as under:
“29. While dealing with a case of custody of a child
removed by a parent from one country to another in
contravention of the orders of the court where the parties
had set up their matrimonial home, the court in the country
to which the child has been removed must first consider the
question whether the court could conduct an elaborate
enquiry on the question of custody or by dealing with the
matter summarily order a parent to return custody of the
child to the country from which the child was removed and
all aspects relating to the child’s welfare be investigated in
a court in his own country. Should the court take a view
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that an elaborate enquiry is necessary, obviously the court
is bound to consider the welfare and happiness of the child
as the paramount consideration and go into all relevant
aspects of welfare of the child including stability and
security, loving and understanding care and guidance and
full development of the child’s character, personality and
talents. While doing so, the order of a foreign court as to his
custody may be given due weight; the weight and
persuasive effect of a foreign judgment must depend on the
circumstances of each case.
30. However, in a case where the court decides to exercise
its jurisdiction summarily to return the child to his own
country, keeping in view the jurisdiction of the court in the
native country which has the closest concern and the most
intimate contact with the issues arising in the case, the
court may leave the aspects relating to the welfare of the
child to be investigated by the court in his own native
country as that could be in the best interests of the child.
The indication given in McKee v. McKee that there may be
cases in which it is proper for a court in one jurisdiction to
make an order directing that a child be returned to a foreign
jurisdiction without investigating the merits of the dispute
relating to the care of the child on the ground that such an
order is in the best interests of the child has been explained
in L (Minors), In re and the said view has been approved by
this Court in Dhanwanti Joshi. Similar view taken by the
Court of Appeal in H. (Infants), In re has been approved by
this Court in Elizabeth Dinshaw.”
G)In the case of Shilpa Aggarwal v. Aviral Mittal
(2009), a 3 and half year old female child was
brought from the UK to India by the mother in
contravention of an order passed by a Court in the
USA and the Father sought custody of female child
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by filing a writ petition of habeas corpus, wherein,
the Hon'ble Supreme Court has held as under:
“31. Although Mr Shishodia relied heavily on the
decision in Surinder Kaur case, it cannot be
ignored that the said case has duly considered the
principle that the interest of the minor is
paramount in any decision relating to custody. It is
but natural that in a matrimonial tussle both the
parents would want the custody of the minor child.
In this tussle, we have to decide who would be
more suited to have custody of the child. In our
view, the High Court appears to have taken the
correct approach in a matter like this.”
H)In the case of Arathi Bandi v. Bandi
Jagadrakshaka Rao (2013), a 3 year old male child
was brought from the USA to India by the mother in
contravention of an order passed by a Court in the
USA and the Father sought custody of male child by
filing a writ petition of habeas corpus, wherein, the
Hon'ble Supreme Court has held as under:
“40. The courts have taken cognizance of growing practice
of children being removed from one country to another just
to put pressure/influence the legal proceedings that are
usually pending in these cases, in relation to the
irretrievable breakdown of marriage. In H. (Infants), In re¹,
Willmer, L.J., as long back as 1961, observed as follows:
(WLR p. 389B)
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“… The sudden and unauthorised removal of
children from one country to another is far too
frequent nowadays, and, as it seems to me, it is
the duty of all courts in all countries to do all they
can to ensure that the wrongdoer does not gain an
advantage by his wrongdoing.””
I)In the case of Surya Vadanan v. State of Tamil
Nadu (2015), 10 year old and 6 year old female
children was brought from the UK to India by the
mother in contravention of an order passed by a
Court in the USA and the father sought custody of
2 female child by filing a writ petition of habeas
corpus, wherein, the Hon'ble Supreme Court has
held as under:
“56. However, if there is a pre-existing order of a foreign
court of competent jurisdiction and the domestic court
decides to conduct an elaborate inquiry (as against a
summary inquiry), it must have special reasons to do so. An
elaborate inquiry should not be ordered as a matter of
course. While deciding whether a summary or an elaborate
inquiry should be conducted, the domestic court must take
into consideration:
(a) The nature and effect of the interim or interlocutory order
passed by the foreign court.
(b) The existence of special reasons for repatriating or not
repatriating the child to the jurisdiction of the foreign court.
(c) The repatriation of the child does not cause any moral or
physical or social or cultural or psychological harm to the
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child, nor should it cause any legal harm to the parent with
whom the child is in India. There are instances where the
order of the foreign court may result in the arrest of the
parent on his or her return to the foreign country. In such
cases, the domestic court is also obliged to ensure the
physical safety of the parent.
(d) The alacrity with which the parent moves the foreign
court concerned or the domestic court concerned, is also
relevant. If the time gap is unusually large and is not
reasonably explainable and the child has developed firm
roots in India, the domestic court may be well advised to
conduct an elaborate inquiry.”
J)In the case of Lahari Sakhamuri v. Sobhan Kodali
(2019), a 6 Year old male child and 4 year old
female child was brought from the USA to India by
the mother in contravention of an order passed by a
Court in the USA and the father sought custody of
children by filing a writ petition of habeas corpus,
wherein, the Hon'ble Supreme Court has held as
under:
“41. The essence of the judgment in Nithya Anand
Raghavan case is that the doctrines of comity of courts,
intimate connect, orders passed by foreign courts having
jurisdiction in the matter regarding custody of the minor
child, citizenship of the parents and the child, etc. cannot
override the consideration of the best interest and the
welfare of the child and that the direction to return the child
to the foreign jurisdiction must not result in any physical,
mental, psychological, or other harm to the child.
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43. The expression “best interest of child” which is
always kept to be of paramount consideration is
indeed wide in its connotation and it cannot
remain the love and care of the primary care giver
i.e. the mother in case of the infant or the child who
is only a few years old. The definition of “best
interest of the child” is envisaged in Section 2(9) of
the Juvenile Justice (Care & Protection) Act, 2015,
as to mean “the basis for any decision taken
regarding the child, to ensure fulfilment of his
basic rights and needs, identity, social well-being
and physical, emotional and intellectual
development”.”
K)In the case of Yasita Sahu v. State of Rajasthan
(2020), 3 year old female child was brought from
the USA to India by the mother in contravention of
an order passed by a court in the USA and father
sought custody of child by filing a writ petition of
habeas corpus, wherein, the Hon'ble Supreme
Court has held as under:
“10. It is too late in the day to urge that a writ of habeas
corpus is not maintainable if the child is in the custody of
another parent. The law in this regard has developed a lot
over a period of time but now it is a settled position that the
court can invoke its extraordinary writ jurisdiction for the
best interest of the child. This has been done in Elizabeth
Dinshaw v. Arvand M. Dinshaw, Nithya Anand Raghavan
v. State (NCT of Delhi) and Lahari Sakhamuri v. Sobhan
Kodali among others. In all these cases, the writ petitions
were entertained. Therefore, we reject the contention of the
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appellant wife that the writ petition before the High Court of
Rajasthan was not maintainable.
19. We are of the considered view that the doctrine of
comity of courts is a very healthy doctrine. If courts in
different jurisdictions do not respect the orders passed by
each other it will lead to contradictory orders being passed
in different jurisdictions. No hard-and-fast guidelines can
be laid down in this regard and each case has to be
decided on its own facts. We may, however, again reiterate
that the welfare of the child will always remain the
paramount consideration.
20. It is well settled law by a catena of judgments that
while deciding matters of custody of a child, primary and
paramount consideration is welfare of the child. If welfare
of the child so demands then technical objections cannot
come in the way. However, while deciding the welfare of
the child, it is not the view of one spouse alone which has
to be taken into consideration. The courts should decide the
issue of custody only on the basis of what is in the best
interest of the child.
21. The child is the victim in custody battles. In this fight of
egos and increasing acrimonious battles and litigations
between two spouses, our experience shows that more
often than not, the parents who otherwise love their child,
present a picture as if the other spouse is a villain and he
or she alone is entitled to the custody of the child. The court
must therefore be very wary of what is said by each of the
spouses.
22. A child, especially a child of tender years
requires the love, affection, company, protection of
both parents. This is not only the requirement of
the child but is his/her basic human right. Just
because the parents are at war with each other,
does not mean that the child should be denied the
care, affection, love or protection of any one of the
two parents. A child is not an inanimate object
which can be tossed from one parent to the other.
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Every separation, every reunion may have a
traumatic and psychosomatic impact on the child.
Therefore, it is to be ensured that the court weighs
each and every circumstance very carefully before
deciding how and in what manner the custody of
the child should be shared between both the
parents. Even if the custody is given to one parent,
the other parent must have sufficient visitation
rights to ensure that the child keeps in touch with
the other parent and does not lose social, physical
and psychological contact with any one of the two
parents. It is only in extreme circumstances that
one parent should be denied contact with the child.
Reasons must be assigned if one parent is to be
denied any visitation rights or contact with the
child. Courts dealing with the custody matters
must while deciding issues of custody clearly
define the nature, manner and specifics of the
visitation rights.”
L)In the case of Nilanjan Bhattacharya v. State of
Karnataka (2020), 3 and half year old child was
brought from the USA to India by the mother in
contravention of an order passed by a Court in the
USA and father sought custody of child by filing a
writ petition of habeas corpus, wherein, the Hon'ble
Supreme Court has held as under:
“11. Where a child has been removed from their native
country to India, this Court has held that it would be in the
best interests of the child to return to their native country if
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the child has not developed roots in India and no harm
would be caused to the child on such return. In V. Ravi
Chandran (2) v. Union of India, this Court observed: (SCC
pp. 196-97, paras 32 & 35-37)
“32. Admittedly, Adithya is an American citizen, born and
brought up in the United States of America. He has spent
his initial years there. The natural habitat of Adithya is in
the United States of America. As a matter of fact, keeping in
view the welfare and happiness of the child and in his best
interests, the parties have obtained a series of consent
orders concerning his custody/parenting rights,
maintenance, etc. from the competent courts of jurisdiction
in America. …
“35. There is nothing on record which may even remotely
suggest that it would be harmful for the child to be returned
to his native country.
“36. It is true that the child Adithya has been in India for
almost two years since he was removed by the mother—
Respondent 6—contrary to the custody orders of the US
court passed by the consent of the parties. It is also true
that one of the factors to be kept in mind in exercise of the
summary jurisdiction in the interests of the child is that
application for custody/return of the child is made promptly
and quickly after the child has been removed. This is so
because any delay may result in the child developing roots
in the country to which he has been removed. From the
counter-affidavit that has been filed by Respondent 6, it is
apparent that in the last two years Adithya did not have
education at one place. He has moved from one school to
another. He was admitted in a school at Dehradun by
Respondent 6 but then removed within a few months. In
the month of June 2009 the child has been admitted in
some school in Chennai.
“37. In these circumstances, there has been no occasion for
the child developing roots in this country.”
12. The respondent arrived in India with the child in March
2019. The appellant filed for custody and for return of the
minor child before the Superior Court of New Jersey,
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Hudson County, Chancery Division-Family Part on 16-4-
2019, which awarded him temporary custody on 21-5-
2019. On 10-7-2019, the appellant filed a petition under
Article 32 of the Constitution seeking a writ of habeas
corpus before this Court. This Court granted the appellant
liberty to move the appropriate forum. Thereafter, the
appellant filed a habeas corpus petition before the High
Court of Karnataka on 13-8-2019. The above sequence of
events makes it evident that the appellant has acted
promptly to secure the custody of the child. In such an
event, this Court is only required to conduct a summary
inquiry to ascertain whether there is any harm if the child
returns to the US, where he was born and has been
brought up. The Court is required to engage in an elaborate
inquiry on the merits of the case only if a considerable time
has passed since the child has been removed and if the
child has developed roots in India. In either event, the
primary consideration of this Court is to ascertain the
welfare of the child.”
M)In the case of Rohith Thammana Gowda v. State
of Karnataka (2022), 9 year old female child was
brought from the USA to India by mother in
contravention of an order passed by a Court in the
USA and father sought custody of child by filing a
writ petition of habeas corpus, wherein, the Hon'ble
Supreme Court has held as under:
“11. At the outset we may state that in a matter involving
the question of custody of a child it has to be borne in mind
that the question “what is the wish/desire of the child” is
different and distinct from the question “what would be in
the best interest of the child”. Certainly, the wish/desire of
the child can be ascertained through interaction but then,
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the question as to “what would be in the best interest of the
child” is a matter to be decided by the court taking into
account all the relevant circumstances.
12. When couples are at loggerheads and wanted to part
their ways, as Parthian shot they may level extreme
allegations against each other so as to depict the other
unworthy to have the custody of the child. In the
circumstances, we are of the view that for considering the
claim for custody of a minor child, unless very serious,
proven conduct which should make one of them unworthy
to claim for custody of the child concerned, the question can
and shall be decided solely looking into the question as to,
“what would be the best interest of the child concerned”. In
other words, welfare of the child should be the paramount
consideration. In that view of the matter we think it
absolutely unnecessary to discuss and deal with all the
contentions and allegations in their respective pleadings
and affidavits.”
N)The Gujarat High Court in case of Sejalben Arpit
Shah v. State of Gujarat (2019), a 1 year 2 month
old female child was in unlawful custody of
respondent no.3 according to petitioner. Mother
sought custody of child by filing a writ petition of
habeas corpus, wherein, the Hon'ble High Court
has held as under:
“38. It is well settled that in an application seeking a writ of
habeas corpus for custody of minor child, the principal
consideration for the court is to ascertain whether the
custody of the child can be said to be lawful or illegal and
whether the welfare of the child requires that the present
custody should be changed and the child should be left in
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the care and custody of someone else. It is equally well
settled that in case of dispute between the mother and
father regarding the custody of their child, the paramount
consideration is welfare of the child and not the legal right
of either of the parties. [See : Dr. (Mrs.) Veena Kapoor v.
Shri Varinder Kumar Kapoor, (1981) 3 SCC 92 and Syed
Saleemuddin v. Dr. Rukhsana, (2001) 5 SCC 247]. It is,
therefore, to be examined what is in the best interest of the
child Priyanshi and whether her welfare would be better
looked after if she is given in the custody of the appellant,
who is her father.
40. Thus, the Court should avoid a technical and legalistic
view; it should adopt a pragmatic and realistic view in such
a case. Moreover, the Court acts less as a Court of law, and
more as a Court of equity. For it deals less with legal
issues, and more with a human problem of the parents and
the children. According to the Apex Court, “To repeat,
issues relating to custody of minors and tender aged
children have to be handled with love, affection, sentiments
and by applying human touch to the problem.” Ref. to Nil
Ratan Kundu, (2008) 9 SCC 413 : AIR 2009 SC (Supp) 732
(supra).”
68. In all the aforementioned decisions, the Apex Court
has laid down the proposition, time and again, that
when it comes to the question of custody of a minor in
the background of a marital dispute and especially in
cases where the couple were residing outside India
and the minors were in India either voluntarily or
against the wishes of either of the spouses, the
overriding concern of the Courts would always be to
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look at the best interest of the child and pass
appropriate orders.
69. The Apex Court, in fact, in the case of Somprabha
Rana and ors vs State of State of MP reported in
2024 (9) SCC 382, after considering all the decisions
rendered by the Apex Court earlier (including the
decisions cited above) has summarized the
proposition of law as follows:
“6. After having perused various decisions of this
Court, the broad propositions of settled law on the
point can be summarised as follows:
a. Writ of Habeas corpus is a prerogative writ.
It is an extraordinary remedy. It is a
discretionary remedy;
b. The High Court always has the discretion
not to exercise the writ jurisdiction depending
upon the facts of the case. It all depends on
the facts of individual cases;
c. Even if the High Court, in a petition of
Habeas Corpus, finds that custody of the child
by the respondents was illegal, in a given
case, the High Court can decline to exercise
jurisdiction under Article 226 of the
Constitution of India if the High Court is of the
view that at the stage at which the Habeas
Corpus was sought, it will not be in the
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welfare and interests of the minor to disturb
his/her custody; and
d. As far as the decision regarding custody of
the minor children is concerned, the only
paramount consideration is the welfare of the
minor. The parties' rights cannot be allowed to
override the child's welfare. This principle also
applies to a petition seeking Habeas Corpus
concerning a minor.”
XI. APPLICATION OF THE PROPOSITION OF LAW
TO THE FACTS OF THIS CASE:
70. In light of the elucidation of the legal position, it
would be important for us to examine whether the
best interests of the son would be served by restoring
his custody to the mother and directing the son’s
return to Canada or by permitting the son to stay in
India along with his father.
71. The son, as of now, is about 5 years old and is a
Canadian citizen. The father of the child, due to his
marital differences with his wife, chose to return to
India in September, 2024 and at that point in time, he
had voluntarily given up sole custody of the son to the
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mother. The mother, as a consequence, has
admittedly raised the child all by herself from
September, 2024 till April, 2025.
72. It is obvious that a child who was born in Canada
and was aged just 4 years, when the father returned
to India, would be used to an atmosphere where he
was being taken care of only by his mother.
Displacing such a child to a country like India and
forcing the child to stay away from the mother would,
in our view, be traumatic to the child. The secure
atmosphere that the child enjoyed would be
transformed into a new and alien atmosphere where
he would be forced to adopt to come to terms with
people who are fundamentally strangers to hi. We are
conscious of the fact that the children of a tender age
can get adjusted to new atmospheres, especially when
his grandparents are involved in the child’s
upbringing, but that cannot be a substitute to the
care and warmth that a child would secure from his
natural mother.
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73. Indian laws, in fact, recognize this aspect and state
that until the age of 5 years, it would be appropriate
for the mother to be in the custody of the child even
though the father is a natural guardian.
74. Arguments were, however, sought to be advanced
that the mother was in an adulterous relationship
and this would be against the interest of the child. A
reading of the e-mail of September, 2024 would
indicate that even at that point of time the complaint
of the father was that his wife was living an
adulterous life and yet he chose to give up custody of
the child in favour of his wife. In fact, he
acknowledged in the e-mail that the custody of the
child under the relevant laws would always be
referred to the mother. In this situation, the argument
that is now sought to be advanced that the son would
be traumatized by his mother's alleged adulterous
relationship cannot be accepted.
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75. It is also to be noticed that, admittedly, the son had
been enrolled into a school in Canada and was
pursuing his studies there. Judicial notice can be
taken of the fact that if a child is brought up in a
particular educational system, moving the child to
another educational system would be disruptive and
would affect the child's educational upbringing.
76. It cannot also be in dispute that the standard of living
in Canada, to which the child was accustomed, would
obviously be better than the standard of living that
the father can provide in India. Since the child has
been born in Canada and has been virtually brought
up there his entire life, it would not be in the interest
of the child, if this normalcy is disrupted and he is
made to face an alien culture and a completely new
atmosphere.
77. A young child, would primarily, need a secure and
serene atmosphere to have a wholesome life, which,
unfortunately, would be absent if he is in the midst of
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a marital discord his parents are engaged in. Given
the fact that the son was living with his mother since
September 2024 and was being looked after
exclusively by her till the father returned in April
2025 and was only having an informal parenting
arrangement in the backdrop of legal proceedings, in
our view, that life which the son had would have to be
restored and thereby give him the limited serenity
that he enjoyed.
78. We, are therefore, of the view that the best interests
of the child would also be for him to return to Canada
and be with his mother.
79. Question [B} is accordingly answered.
XII. CONCLUSION:
80. As a result of our answers to question (A) and (B),
which are in favour of the mother, we hold as follows:
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a)The father is in unlawful custody of the minor son
Shriyan and he is therefore directed to hand over
custody of the child to either the mother or the
grandfather (through whom this petition is filed
forthwith).
b)The mother/the grandfather would be at liberty to
collect the passport and the OCI card of the minor
son from the Registry of this Court and to transport
him to Canada.
c)It would be open for the father to approach the
Canadian Court before whom the proceedings are
pending for resolution of his disputes including his
right to secure visitation/custody of the child.
81. The present writ petition is accordingly allowed. As a
sequel, Criminal Misc. Application for direction is
dismissed.
(N.S.SANJAY GOWDA,J)
(D. M. VYAS, J)
Mehul Desai
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Further order:
1. That the respondent seeks a stay of this order to enable
him to approach the Hon’ble Supreme Court, since the
custody of the minor child is ordered to be handed over
forthwith.
2.We deem it proper that the order shall remain in
abeyance for a period of two weeks.
3. Learned Counsel for the respondent undertakes that the
earlier order regarding grant of access to the mother and the
grandfather of the child shall continue till then.
(N.S.SANJAY GOWDA,J)
(D. M. VYAS, J)
Mehul Desai
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