In a significant ruling on an international child custody dispute, the Delhi High Court has directed that a minor child be returned to Canada within six weeks, holding that the child's long-term welfare would be best served by allowing the competent Canadian court to decide permanent custody issues.
A Division Bench observed that while the welfare of the child remains the highest consideration, a parent cannot gain an advantage by continuing to retain a child in another country despite an existing judicial order passed by a competent foreign court.
Background of the Case
The dispute arose after the child's mother travelled from Canada to India with the minor in October 2019. The father subsequently approached the Superior Court of Justice in Ontario, Canada, seeking custody.
In March 2020, the Canadian court granted temporary sole custody to the father and directed that the child be returned to Canada. Alleging that the order had not been complied with, the father later filed a habeas corpus petition before the Delhi High Court seeking the child's return.
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The mother opposed the plea, arguing that the child had now lived in India for nearly six years, was well settled socially and educationally, and that relocating him would adversely affect his welfare.
Court's Observations
The High Court said that child custody disputes cannot be decided solely by looking at how much time has passed. It noted that the child's continued stay in India was not the result of any custody order passed by an Indian court but had continued despite the Canadian court's subsisting directions.
The Bench observed,
"The welfare of the child is not merely a relevant consideration; it is the paramount consideration."
The Court further stated that a party who voluntarily participates in proceedings before a foreign court cannot later ignore an unfavourable decision simply because it does not suit them.
It also rejected the argument that the child had become permanently settled in India merely because several years had elapsed during the pendency of litigation.
"The law cannot permit a party to derive legal advantage from her own wrong," the Bench remarked while discussing the effect of prolonged non-compliance with the Canadian court's order.
The judges also examined whether returning the child to Canada would expose him to physical, emotional or psychological harm. After reviewing the material placed before it, the Court found no convincing evidence that such risks existed.
The Bench noted that the father had demonstrated financial stability and willingness to provide suitable accommodation for both the child and the mother if she chose to accompany the child to Canada. It also observed that questions relating to permanent custody, parenting arrangements and visitation could be appropriately decided by the Canadian court, which had already assumed jurisdiction over the dispute.
Decision
Allowing the writ petition, the Delhi High Court directed the mother to hand over temporary custody of the minor child to the father within six weeks for the child's return to Canada.
The Court ordered the father to file an undertaking regarding accommodation and financial arrangements. It also permitted the mother to accompany the child to Canada, either immediately or at a later stage, if she wished.
Further, the Court directed that the child's passport and travel documents be handed over at the time of transfer of custody and stated that police assistance could be sought if the directions were not complied with.
The Court clarified that issues relating to permanent custody, visitation rights and parenting arrangements would remain open for adjudication before the competent Canadian court.
Case Details
Case Title: K. C. v. State & Anr.
Case Number: W.P.(CRL) 1190/2020
Judge: Justice Subramonium Prasad and Justice Harish Vaidhyanathan Shankar
Decision Date: 2 July 2026
