Recently, the Gujarat High Court held that a father who removes a child from the lawful custody of the mother in defiance of a foreign court order would be deemed to be in unlawful custody. The Court directed restoration of custody to the mother, emphatically observing that displacing a young child from the care of the primary caregiver and familiar environment would be “traumatic” and contrary to the child’s best interests.
Brief facts:
The case stemmed from a habeas corpus petition filed by the mother seeking custody of her minor child, arising out of a cross-border matrimonial dispute. The parties, married under foreign law, were already engaged in custody proceedings before a competent foreign court under the Children’s Law Reform Act. During the pendency of those proceedings, and despite having participated in them, the father removed the child from the mother’s custody and brought him to India without her consent or the court’s permission. The foreign court subsequently directed the return of the child to its jurisdiction. Aggrieved by the unilateral removal and continued retention of the child in India, the mother approached the High Court seeking restoration of custody.
Contentions of the Applicant:
The Counsel for the mother contended that the parties, having married under Canadian law and subjected themselves to the jurisdiction of Canadian courts, were bound by orders passed therein. The Applicant argued that the father had expressly conceded custody to the mother and had unlawfully removed the child from Canada during the pendency of proceedings, in violation of both parental consent and judicial process. She emphasised that the child, being of tender age, had been in her continuous care and that removal from such custody disrupted his stability and welfare. The Counsel further submitted that mere visitation arrangements could not be equated with joint custody.
Contentions of the Respondent:
The father, on the other hand, argued that no restraining order prohibited him from bringing the child to India and therefore his conduct could not be termed unlawful. He contended that as the natural guardian under the Hindu Minority and Guardianship Act, he was entitled to custody. The Counsel further argued that the child was now residing in a stable joint family environment in India and that his best interests would be served by remaining there. Allegations were also raised regarding the mother’s personal life, asserting that the child’s welfare would be compromised in her custody.
Observation of the Court:
The Court held that the parties, having consciously married under Canadian law, were bound by the legal regime governing that marriage, and could not selectively invoke Indian law to defeat foreign court orders. The Bench observed that the father had not only participated in proceedings before the Ontario Court but had also failed to raise any objection to its jurisdiction, thereby binding himself to its orders. It stated that a litigant cannot defy orders of a competent foreign court and simultaneously seek protection from an Indian court to legitimise such defiance.
The Bench emphasised that the father’s own conduct belied his claim, noting that he had earlier acknowledged the mother’s custody and the legal position that a child of tender age ought to remain with the mother. The Court held that removal of the child without the mother’s consent and during the pendency of custody proceedings amounted to unlawful custody, observing that “the custody of the child was lawfully with the mother… the father’s custody would have to be declared as unlawful.”
The Court emphasised that the “best interests of the child” remain the paramount consideration. It observed that the child, having been born and raised in Canada, was accustomed to a particular environment and primary caregiving by the mother. The Bench noted that forcibly relocating such a young child to a different country and separating him from his mother would be “traumatic,” as it would deprive him of a secure and familiar environment. The Court further rejected the father’s arguments regarding cultural upbringing and alleged conduct of the mother, holding that such claims could not override the child’s immediate emotional and developmental needs.
The Court also recognised that shifting the child from one educational and social system to another would disrupt his upbringing and stability. It reiterated that while the father’s role is significant, it cannot substitute the “care and warmth that a child would secure from his natural mother,” particularly at a tender age.
The decision of the Court:
In light of the foregoing discussion, the Court allowed the writ petition and directed the father to hand over custody of the minor child to the mother (or her authorised representative), along with the child’s passport and travel documents. It further clarified that the father is at liberty to pursue appropriate remedies before the competent Canadian court for visitation or custody rights.
Case Title: Tillana Shripal Shah Vs. State Of Gujarat & Anr.
Case No.: Criminal Misc. Application (Direction) No. 1 of 2026
Coram: Hob’ble Mr. Justice N.S.Sanjay Gowda, Hob’ble Mr. Justice D. M. Vyas
Advocate for the Petitioner: Adv. Harsh N Parekh, Adv. Manan K Paneri
Advocate for the Respondent: ADDL Monali Bhatt
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