Indian courts not refuge for foreign nationals evading legal orders abroad: HC

The Punjab and Haryana High Court has held that Indian courts cannot be reduced to “instruments of convenience” for foreign nationals seeking to bypass judicial proceedings in their own countries.

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The ruling came in a case where an Australian court permitted a father to bring his child to India for a limited period—from January 8 to February 2, 2025. But the father failed to return the child to Australia after the expiry of the specified period, effectively disregarding the authority of the Australian Family Court.

Justice Rajesh Bhardwaj made it clear that allowing such conduct—where a foreign national brought a child to India under a specific order from a foreign court and then refused to comply with the return orders—would amount to misusing the writ jurisdiction of Indian courts to evade legal obligations imposed by courts in their own country.

The ruling is significant as the high court has held that Indian courts cannot be misused as a refuge or safe haven for foreign nationals seeking to sidestep lawful directions of competent foreign courts.

The observation came as Justice Rajesh Bhardwaj allowed a habeas corpus petition seeking the return of a minor child to his mother in Australia. The Bench held that the father could not continue to retain the child’s custody in India after the expiry of a time-bound order passed by a competent foreign court.

“A perusal of the order passed by the Family Court at Australia would show that the respondent-father was allowed to take the child in India for a specific period. Once the period is over and without any further extension by the Family Court at Australia, the child’s custody thereafter with the father is without any authority of law…. the Court finds the custody, after expiry of the period which was granted by the learned Family Court at Australia, as prima facie illegal with the respondent-father,” Justice Bhardwaj ruled.

Justice Bhardwaj also took note of the submission on the mother’s behalf that the father had already remarried. “In view of the totality of the circumstances, this Court is of the considered opinion that the continued custody of the minor child with the respondent-father, who is remarried and residing with his second wife, is unjustified, contrary to the orders of a competent foreign Court, violative of the principles of comity of Courts, and not conducive to the welfare of the child.”

Referring to the need for sensitivity in custody cases, Justice Bhardwaj asserted: “A child, especially a child of tender years, requires the love, affection, company, protection of both parents. A child is not an inanimate object which can be tossed from one parent to the other. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding custody matters of a child.”

Before parting with the case, Justice Bhardwaj directed the father to hand over the minor child, along with his passport and all other travelling documents, to petitioner-mother forthwith.

“Failing compliance, the respondent-State is directed to restore the minor’s custody and documents without any delay….  The petitioner, being biological mother having full legal rights for his custody as per the various orders passed by the Family Court at Australia, would be at liberty to take the minor child to Australia, their native country,” the Bench concluded.