2015 (2) TMI 1408 - SC - Indian Laws

Seeking custody of the child - Jurisdiction of the Delhi High Court in child custody matters - Application of the principle of comity of courts - Interim custody and visitation rights - Appellant sought their production to enable him to take the children with him to the U.K. since they were wards of the court in the U.K. to enable the foreign court to decide the issue of their custody - High Court set aside the petition on the ground that the Guardian Court had no jurisdiction to entertain the proceedings since the child was not ordinarily resident in Delhi. HELD THAT - The court framed the following principles 1. The welfare of the child is the paramount consideration. The principle of comity of courts demands consideration of an order passed by a foreign court but not necessarily its enforcement. 2. The time gap in moving the domestic court for repatriation affects whether a summary or elaborate inquiry should be held. 3. An order of a foreign court is a factor for repatriation but does not override the welfare of the child. 4. The domestic court must consider whether to conduct an elaborate or summary inquiry on the question of custody if a child is removed from the jurisdiction of a foreign court. 5. A constitutional court may conduct an elaborate inquiry into the welfare of the child in a habeas corpus petition. 6. The domestic court is duty-bound to examine the matter independently, taking the foreign judgment only as an input. On the facts of the case, this court held that repatriation of the minor to the United States, on the principle of comity of courts does not appear to us to be an acceptable option worthy of being exercised at that stage. Accordingly, it was held that the Interest of the minor shall be better served if he continued to be in the custody of his mother Ruchi Majoo . Discussion of the law - The principle of the comity of courts is essentially a principle of self-restraint, applicable when a foreign court is seized of the issue of the custody of a child prior to the domestic court. There may be a situation where the foreign court though seized of the issue does not pass any effective or substantial order or direction. In that event, if the domestic court were to pass an effective or substantial order or direction prior in point of time then the foreign court ought to exercise self-restraint and respect the direction or order of the domestic court (or vice versa), unless there are very good reasons not to do so. Therefore, we are concerned with two principles in a case such as the present. They are (i) The principle of comity of courts and (ii) The principle of the best interests and the welfare of the child. These principles have been referred to contrasting principles of law but they are not contrasting in the sense of one being the opposite of the other but they are contrasting in the sense of being different principles that need to be applied in the facts of a given case. Discussion on facts - We have considered the fact that the children have been in Coimbatore since August 2012 for over two years. The question that arose in our minds was whether the children had adjusted to life in India and had taken root in India and whether, under the circumstances, it would be appropriate to direct their repatriation to the U.K. instead of conducting an elaborate inquiry in India. It is always difficult to say whether any person has taken any root in a country other than that of his or her nationality and in a country other than where he or she was born and brought up. From the material on record, it cannot be said that life has changed so much for the children that it would be better for them to remain in India than to be repatriated to the U.K. The facts in this case do not suggest that because of their stay in India over the last two years the children are not capable of continuing with their life in the U.K. should that become necessary. However, this can more appropriately be decided by the foreign court after taking all factors into consideration. We are conscious that it will not be financially easy for Mayura to contest the claim of her husband Surya for the custody of the children. Therefore, we are of the opinion that some directions need to be given in favour of Mayura to enable her to present an effective case before the foreign court. The appeal was disposed of with specific directions for the mother to take the children to the U.K. during their summer vacations, with the father bearing the cost of litigation expenses, air fare, and maintenance. The court emphasized the importance of the principle of comity of courts and the welfare of the child in making its decision.

Summary

Issues Involved:
1. Refusal to issue a writ of habeas corpus by the Madras High Court.
2. Welfare of the children and the principle of comity of courts.
3. Jurisdiction and competence of foreign courts in child custody matters.

Summary:

1. Refusal to issue a writ of habeas corpus by the Madras High Court:
The Supreme Court found that the Madras High Court erred in declining to issue the writ of habeas corpus for the production of the children of Surya Vadanan and Mayura Vadanan. The appellant sought the production of the children to enable him to take them to the U.K., where they were wards of the court to decide their custody.

2. Welfare of the children and the principle of comity of courts:
The Supreme Court emphasized that the welfare of the children is of paramount importance but also highlighted the principle of comity of courts. The judgment reviewed significant cases, including Sarita Sharma v. Sushil Sharma, Shilpa Aggarwal v. Aviral Mittal, and V. Ravi Chandran v. Union of India, which established that while the welfare of the child is the final goal, the principle of comity of courts should not be ignored unless there are special and compelling reasons.

3. Jurisdiction and competence of foreign courts in child custody matters:
The Supreme Court noted that the foreign court had the most intimate contact and closest concern with the children and parents. The foreign court's interim orders required Mayura to return the children to the U.K. for a final decision on custody. The domestic court should respect interim or interlocutory orders of a foreign court unless there are special reasons not to do so. The Court directed Mayura to comply with the foreign court's order and participate in the proceedings in the U.K., with Surya bearing the litigation expenses and ensuring no coercive actions against Mayura.

Directions:
1. Mayura must take the children to the U.K. during their summer vacations and comply with the foreign court's order.
2. Surya will bear the cost of litigation expenses, air fare, and ensure comfortable stay arrangements.
3. Surya will pay immediate out-of-pocket expenses equivalent to £1000 to Mayura.
4. Surya shall ensure that all coercive processes against Mayura are dropped.
5. If Mayura does not comply, Surya is entitled to take the children to the U.K. for further proceedings.

The appeal was disposed of on these terms.