Foreign Custody Orders Must Yield To Welfare Of Child: Delhi High Court Refuses To Enforce Canadian Return Order Through Habeas Corpus

“Orders Of Foreign Courts Are Only A Factor — Child’s Welfare Remains Paramount”, Delhi High Court has reiterated that foreign court orders directing return of a minor child cannot be mechanically enforced in India through habeas corpus proceedings, as the welfare and best interest of the child remain the paramount consideration for Indian courts.

On 11 March 2026, a Division Bench of Justice Navin Chawla and Justice Ravinder Dudeja decline a father’s request to enforce an interim custody order passed by the Ontario Superior Court of Justice, Canada. The High Court held that while foreign custody orders deserve due regard under the principle of comity of courts, they cannot override the obligation of Indian courts to independently evaluate the welfare of the child.

The Court emphasized that habeas corpus jurisdiction cannot be used as an executing mechanism for foreign custody orders, especially when the child is residing in India and the issue of custody requires a detailed examination of welfare considerations.

The Bench observed that the existence of a foreign custody order is only one relevant factor and does not bind Indian courts to automatically direct the return of the child to another country.

Background of the Case

The petitioner-father and Respondent No.2-mother were married in Delhi on 21 January 2013 and later moved abroad. The petitioner first relocated to the United States for employment and the respondent joined him there in 2017. Their son, Master ‘V’, was born in Chicago in November 2019.

In September 2020, the family shifted to Canada as permanent residents. According to the petitioner, the respondent travelled to India in October 2023 with the minor child for a brief vacation but subsequently cancelled the return tickets and chose to remain in India.

After arriving in India, the respondent initiated legal proceedings against the petitioner, including criminal complaints alleging cruelty and harassment and a guardianship petition before the Family Court in Delhi seeking custody of the child.

Meanwhile, the petitioner approached the Ontario Superior Court of Justice in Canada. On 7 March 2024, the Canadian court granted him interim sole parenting rights and directed that the child be immediately returned to Canada, observing that the child’s habitual residence was Canada.

Despite the order of the Canadian court, the child continued to reside with the mother in India. The petitioner thereafter approached the Delhi High Court seeking issuance of a writ of habeas corpus and enforcement of the Canadian return order.

Legal Issues And Court Observation On Foreign Custody Orders

The principal question before the High Court was whether the Canadian court’s custody order could be enforced through habeas corpus proceedings in India.

The Court observed that although the order of the foreign court may carry persuasive value, it cannot be treated as automatically binding on Indian courts in matters relating to child custody.

Referring to the Supreme Court judgment in Nithya Anand Raghavan v. State (NCT of Delhi), the High Court emphasized that Indian courts must independently determine whether enforcing such an order would serve the welfare of the child.

The Court reproduced the Supreme Court’s observation:

“The remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court.” (Para 24)

The Bench further observed that the principle of comity of courts cannot override the paramount consideration of the child’s welfare, which remains the guiding factor in all custody disputes.

The Court also referred to the Supreme Court’s clarification that in cases involving non-convention countries, the order of a foreign court is only one of the factors to be considered and cannot displace the independent duty of the domestic court to evaluate the best interests of the child.

The Supreme Court had observed:

“The order of the foreign Court must yield to the welfare of the child… The interests and welfare of the child are of paramount consideration.” (Para 25)

Application Of Principles To Present Case

Applying these principles to the present case, the Delhi High Court held that the Canadian court’s interim order directing the return of the child cannot be enforced automatically through habeas corpus.

The Bench observed that the child had been residing with his mother in Delhi for more than two years and was attending school there. In such circumstances, directing his sudden relocation to Canada without a detailed examination of his welfare would not be appropriate.

The Court observed:

“Uprooting him abruptly and directing his removal from the jurisdiction without a detailed inquiry into his welfare would not be appropriate.” (Para 33)

The Court also noted that guardianship proceedings regarding custody of the child were already pending before the Family Court in Delhi, which is the appropriate forum to conduct a detailed inquiry into the child’s welfare and determine the custody issue.

Conclusion

The Delhi High Court ultimately refused to enforce the Canadian return order through habeas corpus proceedings, holding that foreign custody orders cannot override the paramount consideration of the child’s welfare.

The Court dismissed the writ petition and directed the parties to pursue their remedies before the Family Court where guardianship proceedings are pending. The Family Court was also directed to decide the matter expeditiously on its own merits.

Date of Decision: 11 March 2026