Madhya Pradesh High Court news: Blending modern legal principles with “civilizational norms” from the Ramayana and Mahabharat, the Madhya Pradesh High Court recently refused to direct the repatriation of a minor child to Canada, despite a foreign custody order.Justices Vijay Kumar Shukla and Binod Kumar Dwivedi, while dismissing a man’s plea to repatriate the 9-year-old child to Canada, pointed out that the mother is portrayed as the “first home, first teacher, and first protector”, making the child’s right to stay with her a “civilizational norm”, not merely a “modern legal construct”.The Madhya Pradesh High Court further held that Indian courts are not bound to “mechanically enforce” foreign custody orders if such enforcement would be contrary to the child’s welfare. “In Ramayan and Mahabharat period, if we see the role of a mother and her rights for a child in Ramayana: Mother is the first refuge of the child,” it said.Also Read | ‘Fluent in English’: Kerala High Court finds 6-year-old ‘confined’, out of school, sends him back to UKFurther highlighting that motherhood is not extinguished by separation, the Madhya Pradesh High Court referred to Mahabharat. “Karna is born to Kunti and raised by another woman (Radha), but Kunti remains the moral mother throughout his life..,” the April 20 order read. “जननी जÛमभिूमƱ èवगा[दǒप गरȣयसी (Mother and motherland are greater than heaven),” it added, quoting Valmiki Ramayan, Ayodhya Kanda, Sarga 20.The court also pointed out that the principles provided in Ramayan and Mahabharat resonate with modern law, such as the Hindu Minority and Guardianship Act, 1956 and United Nations Convention on the Rights of the Child (UNCRC). “The Ramayan and Mahabharat do not frame custody as a dispute between parents, but as a duty owed to the child,” it added. Justices Vijay Kumar Shukla and Binod Kumar Dwivedi highlighted that motherhood is not extinguished by separation. (AI-enhanced image)‘Sita raised Luv, Kush’The Madhya Pradesh High Court pointed out that while mothers were venerated in Hindu philosophy with concepts like “matru devo bhava (mother is divine)”, this spiritual reverence did not translate into legal rights.The mother’s role was confined to nurturing and early childhood care, but without any legal recognition.The court mentioned that after Mata Sita was separated from Shri Ram, their sons Luv and Kush were raised exclusively by their mother, in the hermitage of Maharishi Valmiki.Despite Shri Ram being their father and the king of Ayodhya, the children remain with the mother, emphasising emotional security, moral upbringing and maternal guardianship.The Madhya Pradesh High Court pointed out that evolution of Hindu mothers’ custody rights in India represents one of the most significant transformations in Indian family law.‘No mechanical enforcing of foreign order’The court clarified that the Supreme Court has consistently held that comity of courts is important but not absolute, and welfare of the child is the paramount consideration.In matters relating to the custody of a minor child, the paramount consideration is the “welfare” and “best interest” of the child and not the legal rights of the parents.Concerning the impact of an order of a foreign court relating to interest, the high court clarified that the same is relevant, but not conclusive.The Madhya Pradesh High Court pointed out that an Indian court is not bound to mechanically enforce a foreign interest order, if such enforcement would be contrary to the child’s welfare.Also Read | US-born child’s ‘deep roots’ in India outweigh American court orders, Delhi High Court rules in bitter custody battle‘Custody with mother’The court noted that the child was produced before it and found that the child, though of tender age, has expressed comfort and emotional attachment towards her mother.The child has been residing in India for the last four years and at present she is studying in a good school.The child appears well settled in the present environment, the Madhya Pradesh High Court found.Considering the age of the child, the need of maternal care at her formatting stage, the emotional and educational stability of the child and the overall circumstances placed on record, the court held that the child’s custody cannot be directed to be handed over to the petitioner solely on the basis of a foreign decree.A foreign decree would not subserve the welfare of the minor as it has been found that it is not in the interest of the child to return to the foreign country and the custody of the father, the Madhya Pradesh High Court stated.Marriage, divorce and custody battleThe couple got married in January 2014 in Mumbai. It was placed on record that prior to the marriage, the husband was residing abroad since 2006, initially in the United Kingdom and thereafter in the USA, having shifted to Chicago in 2011.It was added that after marriage, the wife joined the petitioner in Chicago in March 2014, and the parties commenced their matrimonial life there. Their daughter was born in August 2016 in Chicago and acquired US citizenship by birth. The family eventually moved to Canada and became permanent residents there in 2018.Story continues below this adThey allegedly settled in Toronto, where the child was enrolled in school, and living in what the father claimed was her “habitual residence.”It was further added that in January 2022, the mother travelled to India with the child, initially with return tickets for April 2022. The father also allegedly visited India briefly but returned to Canada. However, it was alleged that the mother later refused to return to Canada with the child and instead enrolled her at a school in Indore, effectively retaining custody in India.Also Read | Why Andhra Pradesh HC rejected a UK court order in a child custody battleThis triggered marital disputes between the parties. Subsequently, the father approached the Ontario Superior Court of Justice seeking custody of her minor daughter. The Canadian court, in its March 2024 order, held that the child was a habitual resident of Canada and passed multiple orders directing her return to that country, while granting sole custody to the father.On the other hand, the mother also filed for divorce and custody before the family court, Indore. Thereafter, the father filed a habeas corpus petition before the Madhya Pradesh High Court, seeking the return of the child to Canada, and enforcement of the foreign court’s orders.Story continues below this adEarlier, the Madhya Pradesh High Court dismissed a writ petition and review in this connection. Aggrieved, the father then approached the Supreme Court, which noted that a final custody order from Canada was not considered earlier and allowed him to approach the high court again.ArgumentsAppearing for the petitioner, advocate Prabhijeet Jauhar argued before the Madhya Pradesh High Court that the writ of habeas corpus for custody of a minor child is maintainable.It was further argued that in the ‘welfare of the child’ and in her ‘best interest’, the order of return of the child to Canada should be passed by giving custody to the father. He added that the child is a habitual resident of Canada and foreign court orders deserve due respect.The retention of the child in India amounts to “illegal removal” whereas the child’s education, social environment, and emotional stability are integrally connected with Canada, he said.Story continues below this adRepresenting the state, deputy advocate general Sudeep Bhargava submitted before the Madhya Pradesh High Court that the welfare of the child is paramount and mere existence of a foreign decree is not conclusive and the same cannot be sought to be executed. It was added that the child has settled in India and is presently studying here and her summary return would be detrimental to her well-being.