‘Displacing child from Canada to India traumatic’: Gujarat High Court directs father to hand over 5-year-old to mother

The bench pointed out that the father is in unlawful custody of the minor son and is directed to hand over custody to the mother. (Image is enhanced using AI)

The high court noted that the father defied the orders of the Canadian court and fled with the child without informing the mother in December 2025.

‘Best interest of the child, his education’

• A young child would primarily need a secure and serene atmosphere to have a wholesome life, which would be absent if he were in the midst of a marital discord that his parents are engaged in.
• Since the child was born in Canada and has been virtually brought up there his entire life, it would not be in the interest of the child if this normalcy is disrupted and he is made to face an alien culture and a completely new atmosphere.
• If a child is brought up in a particular educational system, such as Canada in this case, moving the child to another educational system would be disruptive and would affect the child’s educational upbringing. 
• The best interests of the child would be for him to return to Canada and be with his mother.
• The secure atmosphere that the child enjoyed would be transformed into a new and alien atmosphere where he would be forced to adapt to come to terms with people who are strangers to him.
• The father is in unlawful custody of the minor son and is directed to hand over custody of the child to either the mother or the grandfather. 
• The mother or the grandfather would be at liberty to collect the passport and the OCI card of the minor.

‘Canadian court’s order supersede’

• The high court noted that the Canadian Court, whose jurisdiction the father has acceded to, has passed an order directing the return of the child to Canada, and it would not be appropriate to hold that the custody of the father is a lawful custody.
• The couple, being educated professionals, chose to get married consciously under the Canadian laws, and as a consequence, their rights and obligations under that marriage would have to necessarily be governed by the Canadian laws and not by the Indian laws.
• The Indian laws recognise that the child should be in the custody of the mother until the age of 5 years, even though the father is a natural guardian.

• It was placed on record that the mother was in sole custody of the minor son, with the consent of the father, and it is not open for the father to contend before this court that he was entitled to have custody of the child exclusively and at a place of his choice. 

‘Marriage under Canadian law, marital dispute’

• The couple got married in Toronto in 2018 and later had a son, who is now about 5 years old and is a Canadian citizen. 
• The son was issued an Overseas Citizen of India Card (OCI card) in 2021 and hence has a lifelong visa to enter India.
• The father of the child, due to his marital differences with his wife, chose to return to India in September 2024, and then, he voluntarily gave up sole custody of the son to the mother, who admittedly raised the child all by herself from September 2024 till April, 2025. 
• The mother in August 2025 initiated proceedings before the Ontario Court of Justice seeking support for herself, for her son, decision-making responsibility for the son, parenting time with the son and spousal support. 
• The Ontario Court passed an order in December 2025 directing that the son should be immediately returned to Canada, fundamentally because he was a habitually resident of Canada.
• This order was passed by the Ontario Court ex parte, without notice to the father. 
• The father has not pleaded at any point in time that he should be given exclusive custody of the son before the Canadian Courts. 

‘Detrimental to welfare of son’

• Appearing for the mother, senior advocate D C Dave, submitted that the parents of the minor have been admittedly married under Canadian laws.
• He emphasised that the father had brought the minor son out of Canada without the permission of the mother and had thereafter gone on to disobey the order of the court.
• He pointed out that it was obvious that the custody over the minor son was unlawful, and his custody would have to be returned to the mother.
• He argued that the breach of an informal arrangement by transporting the son out of the country without his mother’s consent and disrupting his entire life would clearly be detrimental to the welfare of the son.

‘Trauma for Hindu child’

• Appearing for the father, senior advocate Anil Malhotra argued that the minor son, being a Hindu, would be traumatised by the act of his mother staying in an adulterous relationship, and this would therefore not be in the best interests of the child.

• The son was living in a secure environment, in a joint family in India, and the best interests of the son would be for him to continue to stay in India.  
• The maternal grandfather had been given access to the minor son, and the wife was also given unrestricted video conferencing access to the son; therefore, no prejudice would be caused to the mother if the son continued to stay in India.

This international custody battle highlighted the growing judicial focus on habitual residence and the psychological impact of parental abduction.