Delhi High Court Orders Return of Child to Canada, Rejects Six-Year India Residence as Defence Against Flouted Canadian Custody Order
The Division Bench held that roots built through deliberate non-compliance with a foreign court's order cannot defeat that order, directing repatriation of the minor child within six weeks.
A Division Bench of the Delhi High Court, comprising Justice Subramonium Prasad and Justice Harish Vaidyanathan Shankar, allowed a habeas corpus petition filed by a father seeking the return of his minor son from India to Canada. The child had been brought to India by his mother in October 2019 without the father's consent. The Superior Court of Justice, Ontario, Canada had, on 19 March 2020, directed the child's return and granted temporary sole custody to the father. The mother did not comply. She contested the present petition primarily on the ground that the child had, over six years of residence in India, become socially, educationally, and emotionally settled here. The bench rejected that argument, holding that a period of residence brought about through continued defiance of a subsisting judicial order cannot be used as a shield against that very order.
The Dispute Before the High Court
Karan Chopra, the petitioner, married Ashu Chopra on 24 December 2014. After living in California, the couple relocated in August 2018 to Mississauga, Ontario, Canada, where they had obtained permanent residency. Their son, Master “S” (identified in the Canadian order as Shivaansh Chopra), was born on 24 May 2016 in San Jose, United States of America, and holds US citizenship.
On 25 October 2019, the petitioner returned home to find that his wife had left the matrimonial residence in Canada along with the child and had travelled to India. He initiated proceedings before the Superior Court of Justice, Ontario, in December 2019. By an interim order dated 20 February 2020, that court granted the father daily video access of 20 minutes. The mother participated in the Canadian proceedings, filed her reply, and raised her own claims. On 19 March 2020, the Canadian court directed the mother to return the child to the Region of Peel, Ontario, granted temporary sole custody to the father, and restrained the mother from removing the child from Ontario without the father's written consent or a further court order.
The mother did not comply. The petitioner then filed W.P.(CRL) 1190/2020 before the Delhi High Court, seeking a writ in the nature of habeas corpus and, in the alternative, a direction to hand over custody to facilitate the child's repatriation in terms of the Canadian order. He was eventually constrained to approach the Supreme Court of India, which issued directions for expedited hearing. The petition was reserved on 13 March 2026 and decided on 2 July 2026.
The Legal Contest
The petitioner's counsel argued that the mother had unilaterally disturbed the child's habitual residence, that the father had acted with promptness in approaching both the Canadian court and the Delhi High Court, and that the Canadian order — passed after hearing both sides — continued to be operative and unchallenged before any appellate forum in Canada. Reliance was placed on the Supreme Court's decisions in Nithya Anand Raghavan v. State (NCT of Delhi), Lahari Sakhamuri v. Sobhan Kodali, Yashita Sahu v. State of Rajasthan, Nilanjan Bhattacharya v. State of Karnataka, and Sunaina Rao Kommineni v. Abhiram Balusu, for the proposition that where removal is wrongful and the aggrieved parent acts with expedition, summary return is ordinarily the appropriate course unless repatriation would expose the child to grave harm.
The mother's senior counsel raised three objections. First, the petition was in substance an attempt to enforce a foreign court's order under the guise of habeas corpus, which was impermissible, relying on Ghan Shyam Das Gupta & Anr. v. Anant Kumar Sinha & Ors. Second, the petitioner had not approached either court with clean hands, having failed to disclose before the Canadian court that the child was diagnosed with autism spectrum disorder and having omitted before the Delhi High Court the pendency of divorce proceedings in Canada. Third, the paramount consideration of the child's welfare required his continued stay in India, where he had been residing for over six years, was enrolled in school, and was supported by maternal family. Custody and guardianship proceedings were also already pending before Indian courts, making the extraordinary jurisdiction under Article 226 unnecessary.
On the financial dimension, the senior counsel contended that the petitioner's disclosed income was exceeded by his expenses, that properties said to be available for the mother and child were under mortgage, and that the father lacked the economic capacity to support the child in Canada.
How the Bench Reasoned
Justice Harish Vaidyanathan Shankar, who authored the judgment, first addressed maintainability. The bench accepted that Article 226 habeas corpus jurisdiction does not operate as an execution mechanism for foreign decrees — that route is separately governed by the Code of Civil Procedure, 1908. But the court drew a clear distinction between executing a foreign order and examining, under its constitutional jurisdiction, whether the continued detention of a child is lawful and whether the child's welfare warrants relief. That independent constitutional inquiry remained fully available.
The Canadian order of 19 March 2020 was, the bench found, not an ex parte determination. The mother had participated fully: she filed her reply, contested the father's claims, and advanced her own. Having submitted to that jurisdiction, she could not later treat the order as a non-binding “input.” The bench stated that a litigant cannot invoke a court's jurisdiction for relief and then refuse to acknowledge that court's authority when the outcome proves unfavourable.
The bench confronted the mother's central argument — six years of residence, schooling, and social integration in India — directly. It held that the child's continued stay in India was not the product of any lawful adjudication by an Indian court. It was the product of the mother's sustained non-compliance with a subsisting judicial order. The period of residence could not be severed from its cause. To treat that period as a neutral, organically evolved circumstance that now justifies denying the father relief would effectively reward deliberate judicial disobedience. The bench was explicit: “Courts cannot permit a litigant to derive legal advantage from deliberate disobedience of judicial orders.”
The bench acknowledged the settled principle that a child who has become genuinely settled in a new environment may warrant a more elaborate custody inquiry rather than summary return. But it held that this principle is not absolute and cannot be mechanically applied where the settlement itself flows from unlawful retention in breach of a court order. Accepting the contrary position would, the bench warned, create an incentive structure in which a parent could remove a child across borders, resist lawful orders, prolong proceedings, and then invoke the efflux of time as a complete answer to restoration.
The bench also addressed the petitioner's conduct and absolved him of any delay. He approached the Canadian court immediately after the removal. He filed the present petition promptly. Mediation and reconciliation attempts consumed time, and the petition was itself pending before the court for an extended period — circumstances over which the petitioner had limited control. He was constrained to approach the Supreme Court to secure expedited hearing. The delay, the bench found, could not be laid at his door.
On comity of courts, the bench held that the doctrine is not a matter of courtesy but an essential principle for orderly justice in transnational disputes. Permitting parties to contest foreign proceedings, suffer adverse orders, and then seek sanctuary in Indian courts by prolonging proceedings would encourage forum shopping and render international custody adjudications susceptible to strategic evasion.
On the financial objection, the bench examined the petitioner's income affidavit and supporting documents. It found that the petitioner was gainfully employed in Canada with a stable, consistent source of income and sufficient means to provide for the child's educational, medical, residential, and developmental needs. The submissions questioning his financial capacity were based on apprehensions rather than demonstrable evidence that return to Canada would be detrimental.
Crucially, the bench found no evidence that returning the child to Canada would expose him to physical danger, abuse, emotional trauma, or deprivation of healthcare or education. Canada's medical infrastructure, educational systems, and developmental support mechanisms were not shown to be inadequate. The petitioner had also stated on instructions during hearing that he was willing to provide accommodation for the mother and child at the former matrimonial home in Canada, to reside separately himself, and to bear the child's expenses as well as reasonable expenses for the mother if she chose to accompany the child.
Guided by Yashita Sahu and Nithya Anand Raghavan, the bench concluded that where a child has been removed in violation of a court's order and the aggrieved parent acts with expedition, questions of long-term custody are best comprehensively adjudicated by the court of the child's habitual residence — here, the Ontario court already seized of the matter.
Order
The bench allowed W.P.(CRL) 1190/2020 and issued the following directions:
Respondent No. 2 (the mother) shall return the minor child to the jurisdiction of the competent Canadian court within six weeks of the judgment by handing over temporary custody to the petitioner. The handover shall take place before the Registrar General of the Delhi High Court on a date mutually convenient to the parties.
The petitioner shall file an affidavit of undertaking within two weeks, confirming that he will provide the mother and child with accommodation at the former matrimonial home in Canada, that he will himself reside separately at another property owned by him during the pendency of proceedings, and that he has the means to bear the child's expenses and the mother's reasonable expenses if she accompanies the child.
The mother is at liberty to accompany the child to Canada or to join at a later date. If she chooses to travel, she must communicate her intention to the petitioner at least four weeks before the proposed travel date.
At the time of handover, the mother shall hand over the child's passport and all travel documents to the petitioner or his parents.
The mother shall take steps to withdraw the child from his present school in India. The petitioner shall ensure admission to an appropriate school in Canada with minimal disruption to the child's education.
If the mother fails to hand over custody in terms of these directions, the petitioner shall be entitled to seek police assistance. The SHO, Police Station Vikas Puri, Delhi, was directed to extend all necessary assistance to ensure compliance. The Registry was directed to communicate the order to the SHO and to the Registrar General.
No order as to costs was made. The petition and all pending applications stand disposed of.