HC prioritises child welfare over foreign custody, dismisses father’s plea

Indore: The Indore bench of Madhya Pradesh high court on Monday dismissed a writ petition filed by a father seeking return of his minor daughter to Canada, holding that the child's welfare and best interest outweigh the enforcement of a foreign court's custody decree.The division bench of Justice Vijay Kumar Shukla and Justice Binod Kumar Dwivedi pronounced the order in a petition filed by the father, who had sought custody of his nine-year old daughter and her repatriation to Canada in compliance with multiple orders passed by the Superior Court of Justice, Family Court, Ontario.The couple, who married in Jan 2014, had settled in Canada as permanent residents. They had their daughter born in Chicago in August 2016. The child was enrolled in a Toronto school and had been attending classes since Sept 2021.During the COVID-19 pandemic, the child travelled to India with her mother and was subsequently retained here. The mother refused to return to Canada in April 2022 and enrolled the child in a school in Indore.The Ontario court, after hearing both parties, passed a series of orders between 2022 and 2024 directing the child's return to Canada and ultimately granted sole custody and primary parenting rights to the father in March 2024.Following dismissal of an earlier writ petition and the Supreme Court granting liberty to seek implementation of the Canadian order through appropriate courts, the father filed the present petition.The court, after reviewing an extensive body of Supreme Court precedent, reaffirmed that while foreign court orders deserve respect under the principle of comity of courts, they are not conclusive and cannot override the paramount consideration of a child's welfare.Crucially, the judges interacted with the child in chambers. They noted that she expressed emotional comfort and attachment toward her mother, had been residing in India for four years, and was studying in a good school — appearing well settled in her present environment.The court clarified that it had not adjudicated the question of permanent custody and confined its ruling solely to the child's welfare and best interest. The petition was dismissed with no order as to costs.
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