The Supreme Court, recently, issued notice to the Ministry of External Affairs and Ministry of Home Affairs indicating it to explore possibilities of entering into mutual agreements with the USA as the number of custody matters, wherein one of the parents living in the USA is flouting the orders of Apex Court to return the child to the other parent residing in India, is on the rise.

"We also feel that even though India may not be a party to the Hague Convention, there may be the possibility of entering into mutual agreements with the USA as a number of such cases are increasing on account of Indian residents staying in the USA. We issue notice to the Union of India, Ministry of External Affairs, and Ministry of Home Affairs for the said purpose returnable on 6th February 2023", the Court observed. In such a child custody matter, a Bench comprising Justice S.K. Kaul and Justice A.S. Oka held an NRI father guilty of civil contempt as he had wilfully disobeyed to stick to the timeline recorded by the Supreme Court in returning the child to the mother, who is residing in India. The father would be heard on the question of sentencing on the next date of hearing, i.e., 6.2.2023."

The contempt petitioner got married to the contemnor father and the child was born in 2007. Son was a citizen of the USA. Later they were sent to Canada. Father filed for custody in the court in Canada and it passed ex-parte custody order granting custody to the father. 

Later Hbeaus Corpus petition was filed by the father before the Rajasthan High Court and a settlement was arrived at during the pendency and they agreed to live together.

Later respondent filed a contempt petition for breach of the terms of the settlement. Petitioner was convicted by the High Court. On appeal Supreme Court set aside. During various hearings, the Supreme court permitted the father to take the son to the USA from 01.06.2021 to 30.06.2021 and he was directed to come back on 30.06.2021.

In May 2022 the parties again entered into a settlement and agreed to pray to the court in Canada to set aside the ex-parte order. The Supreme Court recorded the settlement. The order was mirrored by the court to Canada.

The father flouted the terms of the order of the Supreme Court and did not show up to pick up his minor son on the agreed-upon date. he came a week later and took the son to Canada on 07.06.2022 and he has not been returned to his mother till date. It was contended by the father that the son was sexually abused by the members of the family members. A complaint in this regard has also been filed with the FBI and it was submitted that until the forensic interview is complete, the son would not be permitted to leave the USA. Passport of the son has also expired and same would not be renewed unless the forensic interview is over.

The Supreme Court also noted that the father has neither applied for an extension of time nor before the passport authority. The Supreme Court noted that the intention of the father was not to bring the child back to India. The court observed that t each stage he had defied the orders of the Supreme Court and committed breaches of his undertakings. In light of the same, the Court held that undoubtedly there was wilful disobedience on the part of the father.