Another decision of an Indian court underscores the continuing refusal of the Indian courts to return children who have been abducted to India by a parent.

The author has repeatedly warned of this problem and has provided expert testimony on this on several occasions.

The latest such case is Malpani v. State of Madhya Pradesh, High Ct. of Madhya Pradesh, 2026: MPHC – IND: 10638, in which the final decision, refusing to enforce a ruling of the Superior Court in Ontario, Canada dated July 13, 2022, was issued on April 20, 2026.

The Canadian case established that the mother had taken the parties’ child from the family’s home in Canada to India for an agreed visit and that the mother had then improperly kept the child in India in April 2022. The father had then promptly commenced a custody case in Canada and the Canadian court, acting expeditiously, had ordered the mother in July 2022 to return the child within 30 days. Malpani v. Malpani, 2022 ONSC 4123.

The father brought a case in India in June 2022 for habeas corpus.

The Canadian case found that the parties were Indian citizens and the parents of one child; that the family had moved to Canada from Illinois; that the parents agreed that the mother would take the child to India for a visit from January 2022 to April 2022; and that the mother had then retained the child in India despite the father’s objection.

The father initiated a case for custody of the child promptly after the abduction in June 2022, followed promptly by a petition in the High Court in India.

The Indian courts moved slowly. As often occurs in such cases in India, a cascade of litigation then erupted.

The mother filed a case in a Family Court in India for interim custody, which was dismissed. She then applied for an anti-suit injunction in the same Family Court, seeking to order the father to drop the Canadian case, but that was also dismissed. She appealed that order, again unsuccessfully. The Division Bench of the Madhya Pradesh High Court then dismissed the father’s habeas corpus case. The father then filed a “review petition,” but again without success. The father then applied for relief to the Supreme Court of India, which in July 2024 (two years after the abduction) ruled that it would not hear the case because the lower court had failed to review the Canadian order (!). Accordingly, the father then promptly refiled his entire case.

A few days ago, the High Court issued its final ruling. It refused to enforce the Canadian order, citing the long line of Indian cases holding that, since India has not adopted the Hague Abduction Convention, Indian courts must not enforce any foreign child custody return order unless a new and full examination of the best interests of the child by the Indian court establishes that returning the child would be in the best interest of the child.

The High Court’s review of the child’s best interests was based primarily on the fact that the child had by now been in India for four years, was comfortable with and emotionally attached to her mother, was studying in a good school and appeared to have become settled in her environment in India.

It is important to note that, even if the High Court had issued an order favorable to the father, that would most likely not have ended the case. In most such cases, time-consuming appeals to the Supreme Court of India follow, and remands to the lower courts are entirely likely. 

The Malpani case is a reminder that it is generally impossible to return children who are taken to India for a visit by one parent and are then retained there. It means that clients should be alert to the danger, that lawyers should provide and seek advice and expert input concerning the danger, and that courts outside India must be provided with admissible evidence of the nature and extent of the problem in order to protect parents and children.

The case is remarkable for another reason. The High Court stated that, “Before adverting to law relating to the custody of a child, it would be apt to consider the role of a mother in Indian mythology and society.” The court then described at length the story of Mata Sita in the Srimad Valmiki Ramayana, an epic Hindu poem which discusses the evolution of Hindu mothers’ rights of custody in India, leading to the current “enlightened” period which recognizes mothers’ equal rights but “with strong preference for maternal custody of young children.”

In any event, this author has described the issue of India’s status as a safe haven for international child abduction on many occasions. The latest case is one more illustration of the issue.[1]