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TMI Blog2015 (2) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintenance. The court emphasized the importance of the principle of comity of courts and the welfare of the child in making its decision. - Madan B. Lokur And Uday Umesh Lalit, JJ. For the Petitioner : Mr. Prabhjit Jauhar, Adv., Mr. S. S. Jauhar, AOR. For the Respondent : Mr. B. Karunakaran, Adv., Mr. S. Gowthaman, AOR. JUDGMENT MADAN B. LOKUR, J. 1. Leave granted. 2. The question before us relates to the refusal by the Madras High Court to issue a writ of habeas corpus for the production of the children of Surya Vadanan and Mayura Vadanan. The 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. 3. In our opinion, the High Court was in error in declining to issue the writ of habeas corpus. The facts 4. The appellant (hereafter referred to as Surya) and respondent No.3 (hereafter referred to as Mayura) were married in Chennai on 27th January, 2000. While both are of Indian origin, Surya is a resident and citizen of U.K. and at the time of marriage Mayura was a resident and citizen of India. 5. Soon after their marriage Mayura joine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to U.K. in the immediate future and perhaps with a view that their education should not be disrupted, the children were admitted to a school in Coimbatore with Surya s consent. 12. Since Surya and Mayura were unable to amicably (or otherwise) resolve their differences, Surya returned to U.K. on or about 6th September, 2012. About a month later, on 16th October, 2012 he received a summons dated 6th October, 2012 from the Family Court in Coimbatore in the divorce petition filed by Mayura requiring him to enter appearance and present his case on 29th October, 2012. We are told that the divorce proceedings are still pending in the Family Court in Coimbatore and no substantial or effective orders have been passed therein. Proceedings in the U.K. 13. Faced with this situation, Surya also seems to have decided to initiate legal action and on 8th November, 2012 he petitioned the High Court of Justice in U.K. (hereinafter referred to as the foreign court ) for making the children as wards of the court. It seems that along with this petition, he also annexed documents to indicate (i) that he had paid the fees of the children for a private school in U.K. with the intention that the children w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be held by him to the order of the court. 6. The solicitors for the Applicant shall have permission to serve these proceedings, together with this order, upon the Respondent mother outside of the jurisdiction of England and Wales, by facsimile or alternatively scanned and e-mailed copy if necessary. 7. The Applicant father shall have leave to disclose this order to: a. The Foreign and Commonwealth Office; b. The British High Commission, New Delhi; c. The Indian High Commission, London. Into any proceedings as the mother may have issued of India, including any divorce proceedings. 8. Costs reserved. AND THIS HON BLE COURT RESPECTFULLY REQUESTS THAT the administrative authorities of the British Government operating in the jurisdiction of India and the judicial and administrative authorities of India, including the Indian High Commission in England, assist in any way within their power and control in ascertaining the current whereabouts of the children herein, who have been made wards of court, and in assisting in repatriating them to England and Wales, the country of their habitual residence. 15. In response to the petition filed by Surya, a written statement was filed by Mayura on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary. 7. The Applicant father shall have leave to disclose this order to: a. The Foreign and Commonwealth Office; b. The British High Commission, New Delhi; c. The Indian High Commission, London; d. Into any proceedings as the mother may have issued in the jurisdiction of India, including any divorce proceedings. 8. The maternal grandparents Dr. Srinivasan Muralidharan and Mrs. Rajkumari Murlidharan shall be joined as Respondents to this application as the 2nd and 3rd Respondents respectively. 9. The mother shall make the children available for skype or alternatively telephone contact each Sunday and each Wednesday at 5.30 p.m. Indian time. 10. Liberty to the 1st Respondent mother, 2nd Respondent maternal Grandfather and 3rd Respondent maternal grandmother to apply to vary and/or discharge this order (or any part of it) upon reasonable notice to the Court and to the solicitors for the father. 11. Costs reserved. AND THIS HON BLE COURT RESPECTFULLY REQUESTS THAT the administrative authorities of the British Government operating in the jurisdiction of India and the judicial and administrative authorities of India, including the Indian High Commission in England, assist in any way w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oo v. Sanjeev Majoo [(2011) 6 SCC 479] , and (5) Arathi Bandi v. Bandi Jagadrakshaka Rao. [(2013) 15 SCC 790] These decisions were extensively read out to us and we propose to deal with them in seriatim. (1) Sarita Sharma v. Sushil Sharma 23. As a result of matrimonial differences between Sarita Sharma and her husband Sushil Sharma an order was passed by a District Court in Texas, USA regarding the care and custody of their children (both American citizens) and their respective visiting rights. A subsequent order placed the children in the care of Sushil Sharma and only visiting rights were given to Sarita Sharma. Without informing the foreign court, Sarita Sharma brought the children to India on or about 7th May, 1997. 24. Subsequently on 12th June, 1997 Sushil Sharma obtained a divorce decree from the foreign court and also an order that the sole custody of the children shall be with him. Armed with this, he moved the Delhi High Court on 9th September, 1997 for a writ of habeas corpus seeking custody of the children. The High Court allowed the writ petition and ordered that the passports of the children be handed over to Sushil Sharma and it was declared that he could take the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ petition filed by Sushil Sharma was dismissed. 28. We may note that significantly, this court did not make any reference at all to the principle of comity of courts nor give any importance (apart from its mention) to the passage quoted from Surinder Kaur Sandhu to the effect that: The modern theory of Conflict of Laws recognizes and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forumshopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. (2) Shilpa Aggarwal v. Aviral Mittal Anr. 29. Shilpa Aggarwal and her husband Aviral Mittal were both British citize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e child. The child was a foreign national; both parents had worked for gain in the U.K. and both had acquired permanent resident status in the U.K. Since the foreign court had the most intimate contact [Surinder Kaur Sandhu v. Harbax Singh Sandhu] with the child and the parents, the principle of comity of courts required that the foreign court would be the most appropriate court to decide which parent would be best suited to have custody of the child. (3) V. Ravi Chandran v. Union of India 33. The mother (Vijayasree Voora) had removed her minor child (a foreign national) from the U.S.A. in violation of a custody order dated 18th June, 2007 passed by the Family Court of the State of New York. The custody order was passed with her consent and with the consent of the child s father (Ravi Chandran, also a foreign national). 34. On 8th August, 2007, Ravi Chandran applied for modification of the custody order and was granted, the same day, temporary sole legal and physical custody of the minor child and Vijayasree Voora was directed to 13 Surinder Kaur Sandhu v. Harbax Singh Sandhu immediately turn over the minor child and his passport to Ravi Chandran and further, her custodial time wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be shown to be harmful to the child. In the event the domestic court conducts an elaborate inquiry, the court could go into the merits as to where the permanent welfare of the child lay and ignore the order of the foreign court or treat the fact of removal of the child from another country as only one of the circumstances. [L. (Minors), In re, (1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)] An order that the child should be returned forthwith to the country from which he or she has been removed in the expectation that any dispute about his or her custody will be satisfactorily resolved in the courts of that country may well be regarded as being in the best interests of the child. [L. (Minors), In re,] (7) The modern theory of conflict of laws recognizes and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. [Surinder Kaur Sandhu v. Harbax Singh Sandhu] 37. On the facts of the case, it was held that an elaborat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the High Court was right in declining exercise of jurisdiction on the principle of comity of courts; and (iii) Whether the order granting interim custody of the child to Ruchi Majoo calls for any modification in terms of grant of visitation rights to the father pending disposal of the petition by the trial court. 43. We are not concerned with the first and the third question. As far as the second question is concerned, this court was of the view that there were four reasons for answering the question in the negative. Be that as it may, the following principles were accepted and adopted by this court: (1) The welfare of the child is the paramount consideration. Simply because a foreign court has taken a particular view on any aspect concerning the welfare of a child is not enough for the courts in this country to shut out an independent consideration of the matter. The principle of comity of courts simply demands consideration of an order passed by a foreign court and not necessarily its enforcement. [Dhanwanti Joshi v. Madhav Unde] (2) One of the factors to be considered whether a domestic court should hold a summary inquiry or an elaborate inquiry for repatriating the child to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complicated and it is not necessary to advert to them in any detail. The sum and substance was that Arathi Bandi and her husband Bandi Rao were ordinarily residents of USA and they had a minor child. There were some matrimonial differences between the couple and proceedings in that regard were pending in a court in Seattle, USA. 46. In violation of an order passed by the foreign court, Arathi Bandi brought the child to India on 17th July, 2008. Since she did not return with the child to the jurisdiction of the foreign court bailable warrants were issued for her arrest by the foreign court. 47. On or about 20th November, 2009 Bandi Rao initiated proceedings in the Andhra Pradesh High Court for a writ of habeas corpus seeking production and custody of the child to enable him to take the child to USA. The Andhra Pradesh High Court passed quite a few material orders in the case but Arathi Bandi did not abide by some of them resulting in the High Court issuing non-bailable warrants on 25th January, 2011 for her arrest. This order and two earlier orders passed by the High Court were then challenged by her in this court. 48. This court observed that Arathi Bandi had come to India in defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 [Shilpa Aggarwal v. Aviral Mittal] 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. 53. What then are some of the key circumstances and factors to take into consideration for reaching this final goal or final objective? First, it must be appreciated that the most intimate contact doctrine and the closest concern doctrine of Surinder Kaur Sandhu are very much alive and cannot be ignored only because their application might be uncomfortable in certain situations. It is not appropriate that a domestic court having much less intimate contact with a child and having much less close concern with a child and his or her parents (as against a foreign court in a given case) should take upon itself the onerous task of determining the best interests and welfare of the child. A foreign court having the most intimate contact and the close ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ordinarily resident in another State and they reside with their child in a third State. In such a situation, the Family Court having the most intimate contact and the closest concern with the child (the court in the third State) may find its orders not being given due respect by a Family Court in the first or the second State. This would clearly be destructive of the equivalent of the principle of comity of courts even within the country and, what is worse, destructive of the rule of law. 56. What are the situations in which an interim or an interlocutory order of a foreign court may be ignored? There are very few such situations. It is of primary importance to determine, prima facie, that the foreign court has jurisdiction over the child whose custody is in dispute, based on the fact of the child being ordinarily resident in the territory over which the foreign court exercises jurisdiction. If the foreign court does have jurisdiction, the interim or interlocutory order of the foreign court should be given due weight and respect. If the jurisdiction of the foreign court is not in doubt, the first strike principle would be applicable. That is to say that due respect and weight mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quite often more than one Family Court has jurisdiction over the subject matter in issue. In such a situation, can a litigant say that he or she will obey the interim or interlocutory order of a particular Family Court and not that of another? Similarly, can one Family Court hold that an interim or an interlocutory order of another Family Court on the same subject matter may be ignored in the best interests and welfare of the child? We think not. An interim or an interlocutory is precisely what it is - interim or interlocutory and is always subject to modification or vacation by the court that passes that interim or interlocutory order. There is no finality attached to an interim or an interlocutory order. We may add a word of caution here merely because a parent has violated an order of a foreign court does not mean that that parent should be penalized for it. The conduct of the parent may certainly be taken into account for passing a final order, but that ought not to have a penalizing result. 59. Finally, this court has accepted the view [L. (Minors), In re,] that in a given case, it might be appropriate to have an elaborate inquiry to decide whether a child should be repatriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... system was different from the education system in India. [4] The mere fact that the children were admitted to a school in India, with the consent of Surya is not conclusive of his consent to the permanent or long term residence of the children in India. It is possible, as explained by his learned counsel, that he did not want any disruption in the education of his children and that is why he consented to the admission of the children in a school in India. This is a possible explanation and cannot be rejected outright. 62. Mayura has not taken any steps to give up her foreign citizenship and to acquire Indian citizenship. She has taken no such steps even with respect to her children. Clearly, she is desirous of retaining her foreign citizenship at the cost of her Indian citizenship and would also like her children to continue with their foreign citizenship, rather than take Indian citizenship. That being the position, there is no reason why the courts in India should not encourage her and the children to submit to the jurisdiction of the foreign court which has the most intimate contact with them and closest concern apart from being located in the country of their citizenship. The f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra and that they should be with her in India. The foreign court may also come to the conclusion that the best interests and welfare of the children requires that they may remain in the U.K. either under the custody of Surya or Mayura or their joint custody or as wards of the court during their minority. In other words, there are several options before the foreign court and we cannot jump the gun and conclude that the foreign court will not come to a just and equitable decision which would be in the best interests and welfare of the two children of the couple. 66. The orders passed by the foreign court are only interim and interlocutory and no finality is attached to them. Nothing prevents Mayura from contesting the correctness of the interim and interlocutory orders and to have them vacated or modified or even set aside. She has taken no such steps in this regard for over two years. Even the later order passed by the foreign court is not final and there is no reason to believe that the foreign court will not take all relevant factors and circumstances into consideration before taking a final view in the matter of the custody of the children. The foreign court may well be inclined, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his can more appropriately be decided by the foreign court after taking all factors into consideration. 70. It must be noted at this stage that efforts were made by this court to have the matter of custody settled in an amicable manner, including through mediation, as recorded in a couple of orders that have been passed by this court. Surya had also agreed to and did temporarily shift his residence to Coimbatore and apparently met the children. However, in spite of all efforts, it was not possible to amicably settle the issue and the mediation centre attached to this court gave a report that mediation between the parties had failed. This left us with no option but to hear the appeal on merits. 71. Given these facts and the efforts made so far, in our opinion, there is no reason to hold any elaborate inquiry as postulated in L. (Minors) - this elaborate inquiry is best left to be conducted by the foreign court which has the most intimate contact and the closest concern with the children. We have also noted that Surya did not waste any time in moving the foreign court for the custody of the children. He moved the foreign court as soon as he became aware (prior to the efforts made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a decree of divorce on the ground that the other party (i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or [rest of the provision is not relevant] [2] There is no paragraph 2(c) in the text of the order supplied to this court. [3] 13. When foreign judgment not conclusive. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except (a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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