MP HC refuses to send girl to Canada-based father, foreign court order not binding
Stating that a child’s welfare and not a foreign court’s order is paramount, and citing the Ramayana story of Luv-Kush, the Madhya Pradesh High Court has refused to send a 10-year-old girl to Canada to join her father.
Dismissing a habeas corpus petition filed by the father, Justices Vijay Kumar Shukla and Binod Kumar Dwivedi of the Indore bench quoted the Sanskrit verse which says that mother and motherland are greater than heaven. The petitioner sought an order to send the girl to Canada and hand over her custody to him as per an order passed by the Family Court of the Superior Court of Justice of Ontario.
But the High Court, in the order passed on April 20, held that in matters related to custody, the paramount consideration is the “welfare” and “best interest” of the child and not the legal rights of the parents.
“In relation to the impact of an order of a Foreign Court... it is well settled that the same is a relevant factor, however, the same is not conclusive. The doctrine of comity of Courts cannot overwrite the paramount consideration of the welfare of the child. The Indian Court is not bound to mechanically enforce a foreign interest order, if such enforcement would be contrary to the child’s welfare,” the division bench said.
Citing the Valmiki Ramayana, the judges said, “After Mata Sita is separated from Shri Ram, Luv and Kush are raised exclusively by their mother, in the hermitage of Maharishi Valmiki. Despite Shri Ram being the king of Ayodhya and their father, the children remain with the mother, emphasising: Emotional security Moral upbringing Maternal guardianship.”
The judgement also cited the famous Sanskrit verse “Janani Janmabhoomi’s Swargadapi Gariyasi” (Mother and motherland are greater than heaven).
As per the petition, the girl’s parents were married in Maharashtra in 2014 and subsequently moved to the United States. The daughter was born in Chicago in 2016 and received the US citizenship by birth before they moved to Toronto, Canada.
The woman came to India with her daughter in January 2022, and instead of returning, enrolled the child in a school in Indore. This led to a dispute between the couple, with the husband demanding that the child be sent back to Canada.
He also moved the High Court for this. The High Court, citing Supreme Court decisions, stated, “The existence of a foreign court order is only one of the factors. The welfare of the child remains the paramount consideration.”
The girl was produced before the court and the judges spoke with her in their chambers, during which she expressed emotional attachment to her mother, the judgement noted.
“We have also taken into consideration the age of the child, the need of maternal care at her formative stage, the emotional and educational stability of the child and the overall circumstances placed on record...,” the High Court said.
