Indian courts can decide NRI couples' matrimonial and guardianship rows: SC
Source - http://www.indiankanoon.org/doc/637664/
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICITION
CIVIL APPEAL NO. 4435 OF 2011
(Arising out of SLP (C) No.9220 of 2010)
Ruchi Majoo ...Appellant
Versus
Sanjeev Majoo ...Respondents
With
CRIMINAL APPEAL NO. 1184 OF 2011
(Arising out of SLP (Crl.) No.10362 of 2010)
JUDGMENT
T.S. THAKUR, J.
Leave granted.
Conflict of laws and jurisdictions in the realm of private
international law is a phenomenon that has assumed greater
dimensions with the spread of Indian diasporas across the globe. A
large number of our young and enterprising countrymen are today
looking for opportunities abroad. While intellectual content and
technical skills of these youngster find them lucrative jobs in
distant lands, complete assimilation with the culture, the ways of
life and the social values prevalent in such countries do not come
easy. The result is that in very many cases incompatibility of
temperament apart, diversity of backgrounds and inability to
accept the changed lifestyle often lead to matrimonial discord that
inevitably forces one or the other party to seek redress within the
legal system of the country which they have adopted in pursuit of
their dreams. Experience has also shown that in a large number of
cases one of the parties may return to the country of his or her
origin for family support, shelter and stability. Unresolved disputes
in such situations lead to legal proceedings in the country of origin
as well as in the adoptive country. Once that happens issues
touching the jurisdiction of the courts examining the same as also
comity of nations are thrown up for adjudication.
The present happens to be one such case where legal
proceedings have engaged the parties in a bitter battle for the
custody of their only child Kush, aged about 11 years born in
America hence a citizen of that country by birth. These proceedings
included an action filed by the father-respondent in this appeal,
before the American Court seeking divorce from the respondent-
wife and also custody of master Kush. An order passed by the
Superior court of California, County of Ventura in America
eventually led to the issue of a red corner notice based on
allegations of child abduction levelled against the mother who like
the father of the minor child is a person of Indian origin currently
living with her parents in Delhi. The mother took refuge under an
order dated 4th April, 2009 passed by the Addl. District Court at
Delhi in a petition filed under Sections 7, 8, 10, 11 of the Guardians
and Wards Act granting interim custody of the minor to her.
Aggrieved by the said order the father of the minor filed a petition
under Article 227 of the Constitution of India before the High Court
of Delhi. By the order impugned in this appeal the High Court
allowed that petition, set aside the order passed by the District
Court and dismissed the custody case filed by the mother primarily
on the ground that the Court at Delhi had no jurisdiction to
entertain the same as the minor was not ordinarily residing at Delhi
- a condition precedent for the Delhi Court to exercise jurisdiction.
The High Court further held that all issues relating to the custody of
child ought to be agitated and decided by the Court in America not
only because that Court had already passed an order to that effect
in favour of the father, but also because all the three parties
namely, the parents of the minor and the minor himself were
American citizens. The High Court buttressed its decision on the
principle of comity of courts and certain observations made by this
Court in some of the decided cases to which we shall presently
refer.
Three questions fall for determination in the above backdrop.
These are (i) Whether the High Court was justified in dismissing the
petition for custody of the minor on the ground that the court at
Delhi had no jurisdiction to entertain the same, (ii) Whether 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 to the mother of the minor calls for any
modification in terms of grant of visitation rights to the father
pending disposal of the petition by the trial court. We shall deal
with the questions ad seriatim:
Re: Question No.1
There is no gainsaying that any challenge to the jurisdiction of
the court will have to be seen in the context of the averments
made in the pleadings of the parties and the requirement of Section
9 of the Guardian and Wards Act, 1890. A closer look at the
pleadings of the parties is, therefore, necessary before we advert to
the legal requirement that must be satisfied for the Court to
exercise its powers under the Act mentioned above.
The appellant-mother had in her petition filed under the
Guardian and Wards Act, 1890 invoked the jurisdiction of the Court
at Delhi, on the assertion that the minor was, on the date of the
presentation of the petition for custody ordinarily residing at 73
Anand Lok, August Kranti Marg, New Delhi. The petition
enumerated at length the alleged acts of mental and physical
cruelty of the respondent- husband towards the appellant, including
his alleged addiction to pornographic films, internet sex and
adulterous behavior during the couple's stay in America. It traced
the sequence of events that brought them to India for a vacation
and the alleged misdemeanor of the respondent that led to the
appellant taking a decision to past company and to stay back in
India instead of returning to United States as originally planned. In
para (xxxviii) of the petition, the appellant said :
"That the petitioner in no certain terms told the respondent
that considering his past conduct which was cruel, inhuman and
insulting as well as humiliating, the petitioner has no plans to be
with the respondent and wanted to stay away from him. The
petitioner even proposed that since there was no (sic) possibility
for them to stay together as husband and wife and as a result of
which the petitioner has decided to settle in India for the time
being, therefore some interim arrangement could be worked out.
The arrangement which was proposed by the petitioner was that
the petitioner will stay with her son for the time being in India and
make best arrangements for his schooling. The petitioner had
also conveyed to the respondent that since he wanted to have
visitation rights, therefore, he must also contribute towards the
upbringing of the child in India. It was further suggested that
some cooling off period should be there so that the matrimonial
disputes could be sorted out subsequently."
The appellant further alleged that she had informed the
respondent about a petition under the Guardian and Wards Act
being ready for presentation before the Guardian Court at Delhi,
whereupon the respondent is alleged to have agreed to the
appellant staying back in Delhi to explore career options and to the
minor continuing to stay with her. The respondent eventually
returned to America around 20th July, 2008, whereafter he is
alleged to have started threatening the appellant that unless the
later returned to America with the minor, he would have the child
removed and put in the custody of the respondent's parents at
Udaipur. Apprehending that the respondent may involve the
appellant in some false litigation in America and asserting that she
was fit to be given the custody of the minor being his mother and
natural guardian, the appellant sought the intervention of this
Court and her appointment as sole guardian of the minor.
Shortly after the presentation of the main petition, an
application under Section 12 of the Guardian and Wards Act read
with Section 151 of the Civil Procedure Code was filed by the
appellant praying for an ex-parte interim order restraining the
respondent and/or any one on his behalf from taking away and/or
physically removing the minor from her custody and for an order
granting interim custody of the minor to the appellant till further
orders. The application set out the circumstances in brief that
compelled the appellant to seek urgent interim directions from the
court and referred to an e-mail received from the father of the
minor by the Delhi Public School (International) at R.K. Puram,
where the minor is studying, accusing the mother of abducting the
minor child and asking the school authorities to refuse admission to
him. The application also referred to an e-mail which the Principal
of the school had in turn sent to the appellant and the order which
the US Court had passed granting custody of minor child to the
respondent. The appellant alleged that the US Court had no
jurisdiction in the matter and that the order passed by that Court
was liable to be ignored. On the presentation of the above
application the Guardian Court passed an ex-parte interim order on
16th September, 2008 directing that the respondent shall not
interfere with the appellant's custody of the minor child till the next
date of hearing.
The respondent entered appearance in the above proceedings
and filed an application for dismissal of the petition on the ground
that the court at Delhi had no jurisdiction to entertain the same. In
the application the respondent denied all the allegations and
averments suggesting habitual internet sex, womanizing, dowry
demand and sexual or behavioural perversity alleged against him.
The respondent also alleged that the family had planned a
vacation-cum-family visit to India and booked return air tickets to
be in America on 20th July, 2008. The respondent's version was that
the appellant along with the respondent and their minor son, Kush
had stayed with the parents of the appellant at Delhi till 5th July,
2008. Thereafter, they were supposed to visit Udaipur but since
the appellant insisted that she would stay at Delhi and assured to
send Kush after sometime to Udaipur, the respondent left for
Udaipur where he received a legal notice on behalf of the appellant
making false and imaginary allegations. On receipt of the notice the
respondent returned to Delhi to sort out the matter. During the
mediation the respondent was allegedly subjected to enormous
cruelty, pressure and threat of proceedings under Section 498A IPC
so as to obstruct his departure scheduled on 20th July, 2008. The
respondent alleged that since any delay in his departure could cost
him a comfortable job in United States, he felt coerced to put in
writing a tentative arrangement on the ground of appellant trying
"career option of Dental medicine at Delhi" and master Kush being
allowed to study at Delhi for the year 2008. This letter was,
according to the respondent, written under deceit, pressure, threat
and coercion. At any rate the letter constituted his consent to an
arrangement, which according to him stood withdrawn because of
his subsequent conduct. It was alleged that neither the appellant
nor Kush could be ordinarily resident of Delhi so as to confer
jurisdiction upon the Delhi Court. Several other allegations were
also made in the application including the assertion that the interim
order of custody and summons issued by the Superior Court of
California, County of Ventura were served by e-mail on the
appellant as also on Advocate, Mr. Purbali Bora despite which the
appellant avoided personal service of the summon on the false
pretext that she did not stay at 73 Anand Lok, New Delhi.
It was, according to the respondent, curious that instead of
returning to USA to submit to the jurisdiction of competent court at
the place where both the petitioner and respondent have a house
to reside, jobs to work and social roots and where Kush also
normally resided, has friends and school, the appellant wife had
persisted to stay in India and approach and seek legal redress. It
was further stated that the proceedings initiated by the appellant
on or about 28th August, 2008, with allegations and averments that
were ex-facie false and exaggerated, were not maintainable in view
of the proceedings before the Court in America and the order
passed therein. It was also alleged that in terms of the protective
custody warrant order issued on 9th September, 2008, by the
Superior Court of California, County of Ventura, the appellant had
been directed to appear before the US Courts which the appellant
was evading to obey and that despite having information about the
proceedings in the US Court she had obtained an ex-parte order
without informing the respondent in advance.
The respondent also enumerated the circumstances which
according to him demonstrated that he is more suitable to get the
custody of Master Kush in comparison to the appellant-mother of
the child. The respondent husband accordingly prayed for
dismissal of the petition filed by the appellant-wife and vacation of
the ad-interim order dated 4th April, 2009 passed by the Guardian
Court at Delhi.
The Guardian and Wards Court upon consideration of the
matter dismissed the application filed by the respondent holding
that the material on record sufficiently showed that the
respondent-husband had consented to the arrangement whereby
the appellant-wife was to continue living in Delhi in order to explore
career options in dental medicine and that the minor was to remain
in the custody of his mother and was to be admitted to a School in
Delhi. The Court further held that since there were serious
allegations regarding the conduct of the respondent-husband and
his habits, the question whether the interest of minor would be
served better by his mother as a guardian had to be looked into. It
is in the light of the above averments that the question whether
the Courts at Delhi have the jurisdiction to entertain a petition for
custody of the minor shall have to be answered.
Section 9 of the Guardian and Wards Act, 1890 makes a specific
provision as regards the jurisdiction of the Court to entertain a
claim for grant of custody of a minor. While sub- Section (1) of
Section 9 identifies the court competent to pass an order for the
custody of the persons of the minor, sub-sections (2) & (3) thereof
deal with courts that can be approached for guardianship of the
property owned by the minor. Section 9(1) alone is, therefore,
relevant for our purpose. It says :
"9. Court having jurisdiction to entertain application (1)
If the application is with respect to the guardianship of the
person of the minor, it shall be made to the District Court having
Jurisdiction in the place where the minor ordinarily resides."
It is evident from a bare reading of the above that the solitary
test for determining the jurisdiction of the court under Section 9 of
the Act is the `ordinary residence' of the minor. The expression
used is "Where the minor ordinarily resides". Now whether the
minor is ordinarily residing at a given place is primarily a question
of intention which in turn is a question of fact. It may at best be a
mixed question of law and fact, but unless the jurisdictional facts
are admitted it can never be a pure question of law, capable of
being answered without an enquiry into the factual aspects of the
controversy. The factual aspects relevant to the question of
jurisdiction are not admitted in the instant case. There are serious
disputes on those aspects to which we shall presently refer. We
may before doing so examine the true purpose of the expression
`ordinarily resident' appearing in Section 9(1) (supra). This
expression has been used in different contexts and statutes and
has often come up for interpretation. Since liberal interpretation is
the first and the foremost rule of interpretation it would be useful
to understand the literal meaning of the two words that comprise
the expression. The word `ordinary' has been defined by the Black's
Law Dictionary as follows:
"Ordinary (Adj.) :Regular; usual; normal; common; often
recurring; according to established order; settled; customary;
reasonable; not characterized by peculiar or unusual circumstances;
belonging to, exercised by, or characteristic of, the normal or
average individual."
The word `reside' has been explained similarly as under:
"Reside: live, dwell, abide, sojourn, stay, remain, lodge. (Western-
Knapp Engineering Co. V. Gillbank, C.C.A. Cal., 129 F2d 135, 136.)
To settle oneself or a thing in a place, to be stationed, to remain or
stay, to dwell permanently or continuously, to have a settled abode
for a time, to have one's residence or domicile; specifically, to be in
residence, to have an abiding place, to be present as an element, to
inhere as quality, to be vested as a right. (State ex rel. Bowden v.
Jensen Mo., 359 S.W.2d 343, 349.)"
In Websters dictionary also the word `reside' finds a similar
meaning, which may be gainfully extracted:
"1. To dwell for a considerable time; to make one's home; live. 2. To
exist as an attribute or quality with in. 3. To be vested: with in"
In Mrs. Annie Besant v. Narayaniah AIR 1914 PC 41 the
infants had been residing in the district of Chingleput in the Madras
Presidency. They were given in custody of Mrs. Annie Besant for
the purpose of education and were getting their education in
England at the University of Oxford. A case was, however, filed in
the district Court of Chingleput for the custody where according to
the plaintiff the minors had permanently resided. Repeating the
plea that the Chingleput Court was competent to entertain the
application their Lordships of the Privy Council observed:
"The district court in which the suit was instituted had no jurisdiction
over the infants except such jurisdiction as was conferred by the
Guardians and Wards Act 1890. By the ninth Section of that Act the
jurisdiction of the court is confined to infants ordinarily residing in the
district.
It is in their Lordship's opinion impossible to hold that the infants who
had months previously left India with a view to being educated in
England and going to University had acquired their ordinary residence
in the district of Chingleput."
In Mst. Jagir Kaur and Anr. v. Jaswant Singh AIR 1963 SC
1521, this Court was dealing with a case under Section 488 Cr.P.C.
and the question of jurisdiction of the Court to entertain a petition
for maintenance. The Court noticed a near unanimity of opinion as
to what is meant by the use of the word "resides" appearing in the
provision and held that "resides" implied something more than a
flying visit to, or casual stay at a particular place. The legal position
was summed up in the following words:
".......Having regard to the object sought to be achieved, the meaning implicit
in the words used, and the construction placed by decided cases there on, we
would define the word "resides" thus: a person resides in a place if he through
choice makes it his abode permanently or even temporarily; whether a person
has chosen to make a particular place his abode depends upon the facts of
each case....."
In Kuldip Nayar & Ors. v. Union of India & Ors. 2006 (7)
SCC 1, the expression "ordinary residence" as used in the
Representation of People Act, 1950 fell for interpretation. This
Court observed:
"243. Lexicon refers to Cicutti v. Suffolk County Council (1980) 3 All ER 689
to denote that the word "ordinarily" is primarily directed not to duration but to
purpose. In this sense the question is not so much where the person is to be
found "ordinarily", in the sense of usually or habitually and with some degree
of continuity, but whether the quality of residence is "ordinary" and general,
rather than merely for some special or limited purpose.
244. The words "ordinarily" and "resident" have been used together in other
statutory provisions as well and as per Law Lexicon they have been construed
as not to require that the person should be one who is always resident or
carries on business in the particular place.
245. The expression coined by joining the two words has to be interpreted
with reference to the point of time requisite for the purposes of the provision,
in the case of Section 20 of the RP Act, 1950 it being the date on which a
person seeks to be registered as an elector in a particular constituency.
246. Thus, residence is a concept that may also be transitory. Even when
qualified by the word "ordinarily" the word "resident" would not result in a
construction having the effect of a requirement of the person using a particular
place for dwelling always or on permanent uninterrupted basis. Thus
understood, even the requirement of a person being "ordinarily resident" at a
particular place is incapable of ensuring nexus between him and the place in
question."
Reference may be made to Bhagyalakshmi and Anr. v. K.N.
Narayana Rao AIR 1983 Mad 9, Aparna Banerjee v. Tapan
Banerjee AIR 1986 P&H 113, Ram Sarup v. Chimman Lal and
Ors. AIR 1952 All 79, Smt. Vimla Devi v. Smt. Maya Devi &
Ors. AIR 1981 Raj. 211, and in re: Dr. Giovanni Marco Muzzu
and etc. etc. AIR 1983 Bom. 242, in which the High Courts have
dealt with the meaning and purport of the expressions like
`ordinary resident' and `ordinarily resides' and taken the view that
the question whether one is ordinarily residing at a given place
depends so much on the intention to make that place ones ordinary
abode.
Let us now in the light of the above, look at the rival versions of
the parties before us, to determine whether the Court at Delhi has
the jurisdiction to entertain the proceedings for custody of master
Kush. As seen earlier, the case of the appellant mother is that
Kush is ordinarily residing with her in Delhi. In support of that
assertion she has among other circumstances placed reliance upon
the letter which the respondent, father of the minor child wrote to
the appellant on 19th July, 2008. The letter is to the following
effect:
"Ruchi,
As you wish to stay in India with Kush and try career option of Dental
medicine at Delhi, I give my whole-hearted support and request you to
put Kush in an Indo-American school or equivalent at Delhi this year.
Please let me know the expenses involved for education of Kush and I
would like to bear completely.
Sd/- Sanjeev
July 19, 2008"
The appellant's case is that although the couple and their son
had initially planned to return to U.S.A. that decision was taken
with the mutual consent of the parties changed to allow the
appellant to stay back in India and to explore career options here.
Master Kush was also according to that decision of his parents, to
stay back and be admitted to a school in Delhi. The decision on
both counts, was free from any duress whatsoever, and had the
effect of shifting the "ordinary residence" of the appellant and her
son Kush from the place they were living in America to Delhi. Not
only this the respondent father of the minor, had upon his return to
America sent E-mails, reiterating the decision and offering his full
support to the appellant. This is according to the appellant clear
from the text of the E-mails exchanged between the parties and
which are self-explanatory as to the context in which they are sent.
The respondent's case on the contrary is that he was coerced to
put in writing a tentative arrangement on the ground of appellant
trying career options in dental medicine at Delhi and minor Kush
allowed to stay at Delhi for the year 2008. This letter was,
according to the respondent, obtained under deceit, pressure,
threat and coercion. In his application challenging the jurisdiction of
the Delhi Court the respondent further stated that even if it be
assumed that the appellant and Kush had stayed back in India with
the permission of the respondent, the same stood withdrawn. To
the same effect was the stand taken by the respondent in his
petition under Article 227 filed before this Court.
It is evident from the statement and the pleadings of the
parties that the question whether the decision to allow the
appellant and Kush to stay back in Delhi instead of returning to
America was a voluntary decision as claimed by the appellant or a
decision taken by the respondent under duress as alleged by him
was a seriously disputed question of facts, a satisfactory answer to
which could be given either by the District Court where the custody
case was filed or by the High Court only after the parties had been
given opportunity to adduce evidence in support of their respective
versions.
In the light of the above, we asked Mr. Pallav Shishodia,
learned senior counsel for the respondent whether the respondent
would adduce evidence to substantiate his charge of duress and
coercion as vitiating circumstances for the Court to exclude the
letter in question from consideration. Mr. Shishodia argued on
instructions that the respondent had no intention of leading any
evidence in support of his case that the letter was obtained under
duress. In fairness to him we must mention that he beseeched us
to decide the question regarding jurisdiction of the Court on the
available material without remanding the matter to the Trial Court
for recording of evidence from either party. Mr. Shishodia also give
us an impression as though any remand on the question of duress
and coercion would be futile because the respondent father was not
willing to go beyond what he has already done in pursuit of his
claim to the custody of the minor. In that view of the matter,
therefore, we are not remanding the case for recording of evidence
as we were at one stage of hearing thought of doing. We are
instead taking a final view on the question of jurisdiction of the
Delhi Court, to entertain the application on the basis of the
available material. This material comprises the letter dated 19th
July, 2008 written by the respondent and referred to by us earlier
and the e-mails exchanged between the parties. That the letter in
question was written by the respondent is not in dispute. What is
argued is that the letter was written under duress and coercion.
There is nothing before us to substantiate that allegation, and in
the face of Mr. Shishodia's categoric statement that the respondent
does not wish to adduce any evidence to prove his charge of
coercion and duress, we have no option except to hold that the said
charge remains unproved.
More importantly the E-mails exchanged between the parties,
copies whereof have been placed on record, completely disprove
the respondent's case of any coercion or duress. The first of these
E-mails is dated the 17th July, 2008 sent by the respondent to his
friend in America, pointing out that the appellant was staying back
in India with the minor for the present. The text of the E-mail is as
under:
"Hi Joanne,
Hope all is well.
I got your voicemail, actually we recently changed our service provider
for home phone, please see below our updated contact information.
Home-9187071716
Sanjay mobile 8054100872, this works in India
Ruchi's mobile remains the same, however it will not work since we are
currently in India. I will be back in LA on Jul 2-, however Ruchi wants to
stay in Delhi alongwith Kush for now.
Regards,
Sanjeev"
On 21st July, 2008 i.e. a day after the respondent reached
America the appellant sent him an e-mail which clearly indicates
that the minor was being admitted to a school in Delhi and by
which the respondent was asked to send American School's record
for that purpose. The e-mail is to the following effect.
"Sanjeev
Also please call up Red Oak elementary and inform them that Kush will
be starting American schooling in India for now and request personal
recommendation from Mrs. Merfield and Mrs. Johnson, they know Kush
v well..Also we need 2 yrs of official school records (one from sumac
and other from red oak) Please send $$ asap. I will find if they have a
direct deposit at school, to make it easy on u..thanks
Ruchi"
In response to the above, the respondent sent an E-mail which
does not in the least, give an impression that the decision to allow
master Kush to stay back in Delhi and to get admitted to a School
here was taken under any kind of duress or coercion as is now
claimed. The E-mail is to the following effect:
`Hi Ruchi,
I checked out website for both American and British schools, the fees
for these schools is extremely high between $ 20000 - $ 25000 per
annum, this will deduct from Kush's college fund which I have worked
hard to create. Also realize that if we take out $ 25,000 from his
college fund now, we loose the effect of compounding when he needs
$ for college 11 years from now. $ 25000 now will be worth $ 60000-
70000 11 yrs from now. I really and honestly feel that we should not
deplete Kush's college fund so much at grade 2m rather leave most of
it for higher education. Also I see a benefit for him to get into a
logical high equality English medium school, he can learn a bit of
Hindi. I would be happy to talk to Kush and make sure he is
comfortable. Let me know your thoughts."
Equally important is another E-mail which the respondent sent
to the appellant regarding surrender of the appellant's car and
payment of the outstanding lease money, a circumstance that
shows that the parties were ad-idem on the question of the
appellant winding up her affairs in America.
"Hi Ruchi,
I checked with Acura regarding breaking your lease, they said that
you can surrender the car to them for repossession and then they
will try to sell it in private action. You will then need to pay the
difference between money raised from private auction and pay off
amount. Also this repossession will damage your credit history.
Let me know your thoughts.
Hope you are feeling better.
Sanjeev"
Two more E-mails one dated 24.7.2008 and the other dated
19.8.2008 exchanged between the parties on the above subject
also bear relevance to the issue at hand and may be extracted:
"Hi Ruchi,
I did more digging for you on this.
See below information from a broker who may be able to help
transfer the lease to another buyer in exchange for the fees
mentioned. Let me know how you want to proceed.
Sanjeev"
"Hi Sanjeev
Please proceed with the plan, sell my acura with least damages...this
seems like a better option.
Thanks,
Ruchi"
It is difficult to appreciate how the respondent could in the light
of the above communications still argue that the decision to allow
the appellant and master Kush to stay back in India was taken
under any coercion or duress. It is also difficult to appreciate how
the respondent could change his mind so soon after the above E-
mails and rush to a Court in U.S. for custody of the minor accusing
the appellant of illegal abduction, a charge which is belied by his
letter dated 19th July, 2008 and the E-mails extracted above. The
fact remains that Kush was ordinarily residing with the appellant
his mother and has been admitted to a school, where he has been
studying for the past nearly three years. The unilateral reversal of
a decision by one of the two parents could not change the fact
situation as to the minor being an ordinary resident of Delhi, when
the decision was taken jointly by both the parents.
In the light of what we have stated above, the High Court was
not, in our opinion, right in holding that the respondent's version
regarding the letter in question having been obtained under threat
and coercion was acceptable. The High Court appeared to be of the
view that if the letter had not been written under duress and
coercion there was no reason for the respondent to move a
guardianship petition before U.S. Court. That reasoning has not
appealed to us. The question whether or not the letter was
obtained under duress and coercion could not be decided only on
the basis of the institution of proceedings by the respondent in the
U.S. Court. If the letter was under duress and coercion, there was
no reason why the respondent should not have repudiated the
same no sooner he landed in America and the alleged duress and
coercion had ceased. Far from doing so the respondent continued
to support that decision even when he was far away from any
duress and coercion alleged by him till the time he suddenly
changed his mind and started accusing the appellant of abduction.
The High Court failed to notice these aspects and fell in error in
accepting the version of the respondent and dismissing the
application filed by the appellant. In the circumstances we answer
question no.1 in the negative.
Re: Question No.2
Recognition of decrees and orders passed by foreign courts remains
an eternal dilemma in as much as whenever called upon to do so,
Courts in this country are bound to determine the validity of such
decrees and orders keeping in view the provisions of Section 13 of
the Code of Criminal Procedure 1908 as amended by the
Amendment Act of 1999 and 2002. The duty of a Court exercising
its Parens Patraie jurisdiction as in cases involving custody of minor
children is all the more onerous. Welfare of the minor in such cases
being the paramount consideration; the court has to approach the
issue regarding the validity and enforcement of a foreign decree or
order carefully. Simply because a foreign court has taken a
particular view on any aspect concerning the welfare of the minor is
not enough for the courts in this country to shut out an
independent consideration of the matter. Objectivity and not abject
surrender is the mantra in such cases. That does not, however,
mean that the order passed by a foreign court is not even a factor
to be kept in view. But it is one thing to consider the foreign
judgment to be conclusive and another to treat it as a factor or
consideration that would go into the making of a final decision.
Judicial pronouncements on the subject are not on virgin ground. A
long line of decisions of the court has settled the approach to be
adopted in such matters. The plentitude of pronouncements also
leaves cleavage in the opinions on certain aspects that need to be
settled authoritatively in an appropriate case.
A survey of law on the subject would, in that view, be
necessary and can start with a reference to the decision of this
Court in Smt. Satya V. Shri Teja Singh, (1975) 1 SCC 120. That
was a case in which the validity of a decree for divorce obtained by
the husband from a Court in the State of Naveda (USA) fell for
examination. This Court held that the answer to the question
depended upon the Rules of private International Law. Since no
system of Private International Law existed that could claim
universal recognition, the Indian Courts had to decide the issue
regarding the validity of the decree in accordance with the Indian
law. Rules of Private International Law followed by other countries
could not be adopted mechanically, especially when principles
underlying such rules varied greatly and were moulded by the
distinctive social, political and economic conditions obtaining in
different countries. This Court also traced the development of law
in America and England and concluded that while British Parliament
had found a solution to the vexed questions of recognition of
decrees granted by foreign courts by enacting "The recognition of
Divorces and Legal Separations Act, 1971" our Parliament had yet
to do so. In the facts and circumstances of that case the Court
held that the husband was not domiciled in Naveda and that his
brief stay in that State did not confer any jurisdiction upon the
Naveda Court to grant a decree dissolving the marriage, he being
no more than a bird of passage who had resorted to the
proceedings there solely to find jurisdiction and obtain a decree for
divorce by misrepresenting the facts as regards his domicile in that
State. This Court while refusing to recognize the decree observed:
"True that the concept of domicile is not uniform throughout the
world and just as long residence does not by itself establish domicile,
a brief residence may not negative it. But residence for a particular
purpose falls to answer the qualitative test for, the purpose being
accomplished the residence would cease. The residence must answer
"a qualitative as well as a quantitative test", that is, the two elements
of factum et animus must concur. The respondent went to Naveda
forum-hunting, found a convenient jurisdiction which would easily
purvey a divorce to him and left it even before the ink on his
domiciliary assertion was dry. Thus the decree of the Naveda Court
lacks jurisdiction. It can receive no recognition in our courts."
(emphasis ours)
In Dhanwanti Joshi v. Madhav Unde 1998(1) SCC 112, one
of the questions that fell for consideration was whether the bringing
away of a child to India by his mother contrary to an order of US
Court would have any bearing on the decision of the Courts in India
while deciding about the custody and the welfare of the child.
Relying upon McKee v. KcKee, 1951 AC 352: 1951(1) All ER 942
and J v. C 1970 AC 668:1969(1) All ER 788, this Court held that it
was the duty of the Courts in the country to which a child is
removed to consider the question of custody, having regard to the
welfare of the child. In doing so, the order passed by the foreign
court would yield to the welfare of the child and that Comity of
Courts simply demanded consideration of any such order issued by
foreign courts and not necessarily their enforcement. This court
further held that the conduct of a summary or elaborate inquiry on
the question of custody by the Court in the country to which the
child has been removed will depend upon the facts and
circumstance of each case. For instance summary jurisdiction is
exercised only if the court to which the child had been removed is
moved promptly and quickly, for in that event, the Judge may well
be persuaded to hold that it would be better for the child that the
merits of the case are investigated in a court in his native country,
on the expectation that an early decision in the native country
would be in the interests of the child before the child could develop
roots in the country to which he had been removed. So also the
conduct of an elaborate inquiry may depend upon the time that had
elapsed between the removal of the child and the institution of the
proceedings for custody. This would mean that longer the time
gap, the lesser the inclination of the Court to go for a summary
inquiry. The court rejected the prayer for returning the child to the
country from where he had been removed and observed:
"31. The facts of the case are that when the respondent moved the
courts in India and in the proceedings of 1986 for habeas corpus and
under Guardians and Wards Act, the courts in India thought it best in
the interests of the child to allow it to continue with the mother in
India, and those orders have also become final. The Indian courts in
1993 or 1997, when the child had lived with his mother for nearly 12
years, or more, would not exercise a summary jurisdiction to return
the child to USA on the ground that its removal from USA in 1984 was
contrary to orders of US courts."
We must at this stage refer to two other decisions of this Court,
reliance upon which was placed by the learned counsel for the
parties. In Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14 this
Court was dealing with an appeal arising out of a habeas corpus
petition filed before the High Court of Delhi in respect of two minor
children aged 3 years and 7 years respectively. It was alleged that
the children were in illegal custody of Sarita Sharma their mother.
The High Court had allowed the petition and directed the mother to
restore the custody of the children to Sushil Sharma who was in
turn permitted to take the children to U.S.A. without any
hindrance. One of the contentions that was urged before this Court
was that the removal of children from U.S.A. to India was against
the orders passed by the American Court, which orders had
granted to the father the custody of the minor children. Allowing
the appeal and setting aside the judgment of the High Court, this
Court held that the order passed by the U.S. courts constituted but
one of the factors which could not override the consideration of
welfare of the minor children. Considering the fact that the
husband was staying with his mother aged about 80 years and that
there was no one else in the family to lookafter the children, this
Court held that it was not in the interest of the children to be put in
the custody of the father who was addicted to excessive alcohol.
Even this case arose out of a writ petition and not a petition under
the Guardians and Wards Act.
In V. Ravi Chandran (Dr.) (2) v. Union of India and Ors.
(2010) 1 SCC 174 also this Court was dealing with a habeas corpus
petition filed directly before it under Article 32 of the Constitution.
This Court held that while dealing with a case of custody of children
removed by a parent from one country to another in contravention
of the orders of the court where the parties had set up their
matrimonial home, the court in the country to which the child has
been removed must first consider whether the court could conduct
an elaborate enquiry on the question of custody or deal with the
matter summarily and order the parent to return the custody of the
child to the country from which he/she was removed, leaving all
aspects relating to child's welfare to be investigated by Court in his
own country. This Court held that in case an elaborate enquiry was
considered appropriate, the order passed by a foreign court may be
given due weight depending upon the circumstances of each case
in which such an order had been passed. Having said so, this Court
directed the child to be sent back to U.S. and issued incidental
directions in that regard.
In Shilpa Aggarwal (Ms.) v. Aviral Mittal & Anr. (2010) 1
SCC 591 this Court followed the same line of reasoning. That was
also a case arising out of a habeas corpus petition before the High
Court of Delhi filed by the father of the child. The High Court had
directed the return of the child to England to join the proceedings
before the courts of England and Wales failing which the child had
to be handed over to the petitioner-father to be taken to England
as a measure of interim custody leaving it for the court in that
country to determine which parent would be best suited to have
the custody of the child. That direction was upheld by this Court
with the observation that since the question as to what is in the
interest of the minor had to be considered by the court in U.K. in
terms of the order passed by the High Court directing return of the
child to the jurisdiction of the said court did not call for any
interference.
We do not propose to burden this judgment by referring to a
long line of other decisions which have been delivered on the
subject, for they do not in our opinion state the law differently from
what has been stated in the decisions already referred to by us.
What, however, needs to be stated for the sake of a clear
understanding of the legal position is that the cases to which we
have drawn attention, as indeed any other case raising the
question of jurisdiction of the court to determine mutual rights and
obligation of the parties, including the question whether a court
otherwise competent to entertain the proceedings concerning the
custody of the minor, ought to hold a summary or a detailed
enquiry into the matter and whether it ought to decline jurisdiction
on the principle of comity of nations or the test of the closest
contact evolved by this Court in Smt. Surinder Kaur Sandhu v.
Harbax Singh Sandhu and Anr. (1984) 3 SCC 698 have arisen
either out of writ proceedings filed by the aggrieved party in the
High Court or this Court or out of proceedings under the Guardian
& Wards Act. Decisions rendered by this Court in Mrs. Elizabeth
Dinshaw v. Arvand M. Dinshaw and Anr. (1987) 1 SCC 42,
Sarita Sharma's case (supra), V. Ravi Chandran's case (supra),
Shilpa Aggarwal's case (supra) arose out of proceedings in the
nature of habeas corpus. The rest had their origin in custody
proceedings launched under the Guardian & Wards Act.
Proceedings in the nature of Habeas Corpus are summary in
nature, where the legality of the detention of the alleged detenue is
examined on the basis of affidavits placed by the parties. Even so,
nothing prevents the High Court from embarking upon a detailed
enquiry in cases where the welfare of a minor is in question, which
is the paramount consideration for the Court while exercising its
parens patriae jurisdiction. A High Court may, therefore, invoke its
extra ordinary jurisdiction to determine the validity of the
detention, in cases that fall within its jurisdiction and may also
issue orders as to custody of the minor depending upon how the
court views the rival claims, if any, to such custody. The Court may
also direct repatriation of the minor child for the country from
where he/she may have been removed by a parent or other
person; as was directed by this Court in Ravi Chandran's &
Shilpa Agarwal's cases (supra) or refuse to do so as was the
position in Sarita Sharma's case (supra). What is important is
that so long as the alleged detenue is within the jurisdiction of the
High Court no question of its competence to pass appropriate
orders arises. The writ court's jurisdiction to make appropriate
orders regarding custody arises no sooner it is found that the
alleged detenue is within its territorial jurisdiction.
In cases arising out of proceedings under the Guardian & Wards
Act, the jurisdiction of the Court is determined by whether the
minor ordinarily resides within the area on which the Court
exercises such jurisdiction. There is thus a significant difference
between the jurisdictional facts relevant to the exercise of powers
by a writ court on the one hand and a court under the Guardian &
Wards Act on the other. Having said that we must make it clear
that no matter a Court is exercising powers under the Guardian &
Wards Act it can choose to hold a summary enquiry into the matter
and pass appropriate orders provided it is otherwise competent to
entertain a petition for custody of the minor under Section 9(1) of
the Act. This is clear from the decision of this Court in Dhanwanti
Joshi v. Madhav Unde (1998) 1 SCC 112, which arose out of
proceedings under the Guardian & Wards Act. The following
passage is in this regard apposite:
"We may here state that this Court in Elizabeth Dinshaw v. Arvand M.
Dinshaw (1987) 1 SCC 42 while dealing with a child removed by the
father from USA contrary to the custody orders of the US Court directed
that the child be sent back to USA to the mother not only because of
the principle of comity but also because, on facts, -- which were
independently considered -- it was in the interests of the child to be
sent back to the native State. There the removal of the child by the
father and the mother's application in India were within six months. In
that context, this Court referred to H. (infants), Re (1966) 1 ALL ER
886 which case, as pointed out by us above has been explained in L. Re
(1974) 1 All ER 913, CA as a case where the Court thought it fit to
exercise its summary jurisdiction in the interests of the child. Be that as
it may, the general principles laid down in McKee v. McKee (1951) 1 All
ER 942 and J v. C (1969) 1 All ER 788 and the distinction between
summary and elaborate inquiries as stated in L. (infants), Re (1974) 1
All ER 913, CA are today well settled in UK, Canada, Australia and the
USA. The same principles apply in our country. Therefore nothing
precludes the Indian courts from considering the question on merits,
having regard to the delay from 1984 -- even assuming that the earlier
orders passed in India do not operate as constructive res judicata."
It does not require much persuasion for us to hold that the
issue whether the Court should hold a summary or a detailed
enquiry would arise only if the Court finds that it has the
jurisdiction to entertain the matter. If the answer to the question
touching jurisdiction is in the negative the logical result has to be
an order of dismissal of the proceedings or return of the application
for presentation before the Court competent to entertain the same.
A Court that has no jurisdiction to entertain a petition for custody
cannot pass any order or issue any direction for the return of the
child to the country from where he has been removed, no matter
such removal is found to be in violation of an order issued by a
Court in that country. The party aggrieved of such removal, may
seek any other remedy legally open to it. But no redress to such a
party will be permissible before the Court who finds that it has no
jurisdiction to entertain the proceedings.
We have while dealing with question No.1 above held that the
Court at Delhi was in the facts and circumstances of the case
competent to entertain the application filed by the appellant. What
needs to be examined is whether the High Court was right in
relying upon the principle of comity of courts and dismissing the
application. Our answer is in the negative. The reasons are not far
to seek. The first and foremost of them being that `comity of
courts' principle ensures that foreign judgments and orders are
unconditionally conclusive of the matter in controversy. This is all
the more so where the courts in this country deal with matters
concerning the interest and welfare of minors including their
custody. Interest and welfare of the minor being paramount, a
competent court in this country is entitled and indeed duty bound
to examine the matter independently, taking the foreign judgment,
if any, only as an input for its final adjudication. Decisions of this
Court in Dhanwanti Joshi, and Sarita Sharma's cases, (supra)
clearly support that proposition.
Secondly, the respondent's case that the minor was removed
from the jurisdiction of the American Courts in contravention of the
orders passed by them, is not factually correct. Unlike V. Ravi
Chandran's case (supra), where the minor was removed in
violation of an order passed by the American Court there were no
proceedings between the parties in any Court in America before
they came to India with the minor. Such proceedings were
instituted by the respondent only after he had agreed to leave the
appellant and the minor behind in India, for the former to explore
career options and the latter to get admitted to a school. The
charge of abduction contrary to a valid order granting custody is,
therefore, untenable.
Thirdly, because the minor has been living in India and
pursuing his studies in a reputed school in Delhi for nearly three
years now. In the course of the hearing of the case, we had an
occasion to interact with the minor in our chambers. He appears to
be happy with his studies and school and does not evince any
interest in returning to his school in America. His concern was more
related to the abduction charge and consequent harassment being
faced by his mother and maternal grandparents. We shall advert
to this aspect a little later, but for the present we only need to
mention that the minor appears to be settled in his environment
including his school studies and friends. He also holds the
respondent responsible for the troubles which his mother is
undergoing and is quite critical about the respondent getting
married to another woman.
Fourthly, because even the respondent does not grudge the
appellant getting custody of the minor, provided she returns to
America with the minor. Mr. Shishodia was asking to make a
solemn statement that the respondent would not, oppose the
appellant's prayer for the custody of the minor, before the
American Court. All that the respondent wants is that the minor is
brought up and educated in America, instead of India, as the minor
would benefit from the same.
The appellant was not willing to accept that proposal, for
according to her she has no intentions of returning to that country
in the foreseeable future especially after she has had a very
traumatic period on account of matrimonial discord with the
respondent. Besides, the offer was according to the appellant, only
meant to score a point more than giving any real benefit to the
minor.
In the light of all these circumstances, 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 this stage. Dismissal of the application for custody in disregard
of the attendant circumstances referred to above was not in our
view a proper exercise of discretion by the High Court. Interest of
the minor shall be better served if he continued in the custody of
his mother the appellant in this appeal, especially when the
respondent has contracted a second marriage and did not appear
to be keen for having actual custody of the minor. Question No.2 is
also for the above reasons answered in the negative.
Re. Question No.3
The order of the Delhi Court granting interim custody of the minor
to the appellant did not make any provision for visitation rights of
the respondent father of the child. In the ordinary course the court
ought to have done so not only because even an interim order of
custody in favour of the parent should not insulate the minor from
the parental touch and influence of the other parent which is so
very important for the healthy growth of the minor and the
development of his personality. It is noteworthy that even the
respondent did not claim such rights in his application or in the
proceedings before the High Court. Indeed Mr. Shishodia expressed
serious apprehensions about the safety of his client, if he were to
visit India in order to meet the child and associate with him. Some
of these apprehensions may not be entirely out of place but that
does not mean that the courts below could not grant redress
against the same. One of these apprehensions is that the
respondent may be involved in a false case under Section 498A &
406 of the IPC or provisions like the Prohibition of Dowry Act 1961.
A case FIR No.97 dated 7.7.2009 has, in fact, been registered
against the respondent, which has been quashed by the High Court
by its order dated 22nd September, 2010 passed in Crl. M.C.
No.3329 of 2009. We have by our order of even date dismissed an
appeal against the said order, which must effectively give a quietus
to that controversy, and allay the apprehension of the respondent.
Not only that we are inclined to issue further directions to ensure
that the respondent does not have any legal or other impediment
in exercising his visitation rights.
The question then is what should the visitation rights be and how
should the same be exercised. But before we examine that aspect,
we may advert to the need for the visitation rights of the father to
be recognised in the peculiar circumstances of this case. From
what we gathered in the course of an interactive session with the
minor, we concluded that the minor has been thoroughly
antagonized against the respondent father. He held him responsible
for his inability to travel to Malaysia, with his grandparents because
if he does so, both the mother and her parents will be arrested on
the charge of abduction of the minor. He also held the respondent
responsible for his grandparent's skin problems and other worries.
He wanted to stay only in India and wanted to be left alone by the
respondent. He was reluctantly agreeable to meeting and
associating with the respondent provided the respondent has the
red corner notice withdrawn so that he and his grandparents can
travel abroad.
For a boy so young in years, these and other expressions
suggesting a deep rooted dislike for the father could arise only
because of a constant hammering of negative feeling in him against
his father. This approach and attitude on the part of the appellant
or her parents can hardly be appreciated. What the appellant ought
to appreciate is that feeding the minor with such dislike and despire
for his father does not serve his interest or his growth as a normal
child. It is important that the minor has his father's care and
guidance, at this formative and impressionable stage of his life. Nor
can the role of the father in his upbringing and grooming to face
the realities of life be undermined. It is in that view important for
the child's healthy growth that we grant to the father visitation
rights; that will enable the two to stay in touch and share moments
of joy, learning and happiness with each other. Since the
respondent is living in another continent such contact cannot be for
obvious reasons as frequent as it may have been if they were in
the same city. But the forbidding distance that separates the two
would get reduced thanks to the modern technology in
telecommunications. The appellant has been according to the
respondent persistently preventing even telephonic contact
between the father and the son. May be the son has been so
poisoned against him that he does not evince any interest in the
father. Be that as it may telephonic contact shall not be prevented
by the appellant for any reason whatsoever and shall be
encouraged at all reasonable time. Video conferencing may also be
possible between the two which too shall not only be permitted but
encouraged by the appellant.
Besides, the father shall be free to visit the minor in India at any
time of the year and meet him for two hours on a daily basis,
unhindered by any impediment from the mother or her parents or
anyone else for that matter. The place where the meeting can take
place shall be indicated by the trial Court after verifying the
convenience of both the parties in this regard. The trial Court shall
pass necessary orders in this regard without delay and without
permitting any dilatory tactics in the matter.
For the vacations in summer, spring and winter the respondent
shall be allowed to take the minor with him for night stay for a
period of one week initially and for longer periods in later years,
subject to the respondent getting the itinerary in this regard
approved from the Guardian & Wards Court. The respondent shall
also be free to take the minor out of Delhi subject to the same
condition. The respondent shall for that purpose be given the
temporary custody of the minor in presence of the trial court, on
any working day on the application of the respondent. Return of
the minor to the appellant shall also be accordingly before the trial
court on a date to be fixed by the court for that purpose. The above
directions are subject to the condition that the respondent does not
remove the child from the jurisdiction of this Court pending final
disposal of the application for grant of custody by the Guardian and
Wards Court, Delhi. We make it clear that within the broad
parameters of the directions regarding visitation rights of the
respondent, the parties shall be free to seek further directions from
the Court seized of the guardianship proceedings; to take care of
any difficulties that may arise in the actual implementation of this
order.
CRIMINAL APPEAL NO. 1184 OF 2011
(Arising out of SLP (Crl.) No.10362 of 2010)
In this appeal the appellant has challenged the correctness of an
order dated 22nd September, 2010 passed by the High Court of
Delhi, quashing FIR No.97 of 2009 registered against respondent-
husband and three others in Police Station, Crime against Women
Cell, Nanakpura, New Delhi, for offences punishable under Sections
498A, 406 read with Section 34 IPC. The High Court has
recapitulated the relevant facts and found that the appellant-
complainant is a citizen of USA and had all along lived in USA with
her son and husband, away from her in laws. The High Court has,
on the basis of the statement made by the appellant in California
Court, further found that the alleged scene of occurrence was in
USA and that her in-laws had no say in the matrimonial life of the
couple. The appellant had further stated that all her jewelry was
lying in the couple's house in USA and no part of it was with her in-
laws as was subsequently stated to be the position in the FIR
lodged by the appellant. No locker number of the bank was
disclosed in the FIR nor any date of the opening of locker or the
jewelry items lying in it. The particulars of the bank in which the
alleged locker was taken by him were also not given in the FIR.
The High Court further held that the appellant had not lodged any
report although the appellant's parents in-laws were alleged to
have stated that the jewelry items were not commensurate with
the status of their family as early as in the year 1996. The High
Court in that view held that no offence under Section 498A and 406
IPC, was made out against her in-laws on the basis of the
allegations made by the appellant in the FIR.
Having heard learned counsel for the parties we are of the opinion
that in the light of the findings recorded by the High Court the
correctness whereof were not disputed before us, the High Court
was justified in quashing the FIR filed by the appellant. In fairness
to the learned counsel, we must mention that although a feeble
attempt was made during the course of hearing to assail the order
passed by the High Court, that pursuit was soon given up by him.
In that view of the matter we see no reason to interfere with the
orders passed by the High Court in Crl. M.C. No.3329 of 2009.
In the result
(i) Civil Appeal is allowed and order dated 8th March, 2010 passed
by the High Court hereby set aside. Consequently, proceedings in
G.P. No.361/2001 filed by the appellant shall go on and be
disposed of on the merits as expeditiously as possible.
(ii) Order granting interim custody of minor Kush with appellant is
resultantly affirmed subject to the grant of visitation right to the
father as indicated in body of the order.
(iii) The observations made in this order shall not prejudice the
cases of the parties before the trial Court and shall be understood
to have been made only for purposes of this appeal except in so far
as the question of jurisdiction of the trial Court is concerned which
aspect shall be taken to have been finally decided by this Court.
(iv)All authorities statutory or otherwise shall act in aid of the
directions given hereinabove.
(v) Criminal Appeal No. 1184 of 2011, (Arising out of SLP (Crl.)
No.10362 of 2010) is dismissed.
(vi)The parties are left to bear their own costs in this Court and the
Courts below.
...................................J.
(V.S. SIRPURKAR)
...................................J.
(T.S. THAKUR)
New Delhi
May 13, 2011
http://www.indiankanoon.org/doc/637664/
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ITEM No. 1A Court No. 8 SECTION XIV/II (For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO. 4435 OF 2011 @ SLP(C) No. 9220 of 2010
RUCHI MAJOO Appellant (s)
VERSUS
SANJEEV MAJOO Respondent (s)
with Crl. A. No. 1184/2011 @ SLP(Crl.) No. 10362 of 2010
Date : 13/05/2011 These Petitions were called on for judgment
today.
For Appellant (s) Ms. Anitha Shenoy, Adv.
For Respondent(s) Mr. Mukul Kumar, Adv.
Hon'ble Mr. Justice T. S. Thakur pronounced the
Judgment of the Bench comprising Hon'ble Mr. Justice V.S.
Sirpurkar and His Lordship
Civil Appeal No. 4435 of 2011
(arising out of SLP(C) No. 9220 of 2010:
Leave granted.
The appeal is allowed in terms of signed judgment.
: 2 :
Criminal Appeal No. 1184 of 2011
(arising out of SLP (Crl.) No. 10362 of 2010)
Leave granted.
The appeal is dismissed in terms of signed
judgment.
(Pardeep Kumar) (Shashi Bala Vij)
Court Master Assistant Registrar
Signed Reportable judgment is placed on the file.
***************************************
Media report
16 may 2011
New Delhi Indian courts have jurisdiction to deal with custodial disputes of minor children even if a foreign court has passed an order in favour of either of the parents, the Supreme Court has ruled in a matrimonial dispute of an NRI family.
A bench of justices V S Sirpurkar and T S Thakur said in a judgement said that simply because a foreign court has passed an order, Indian courts cannot "abjectly surrender" to it and shirk its duty of deciding the dispute.
"Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity, and not abject surrender, is the mantra in such cases," Justice Thakur, writing the judgement, said.
The apex court passed the judgement while upholding an appeal filed by Ruchi Majoo challenging a Delhi High Court judgement that Indian courts have no jurisdiction under the doctrine of "comity of courts" to entertain any petition if a decree or order has already been passed by any foreign court.
A superior court in California had issued a red corner notice against Ruchi in a suit filed by her estranged US-based husband Sanjeev Majoo who had alleged his wife had fled with their minor son to India despite a decree by the US court granting him custody of the child.
The couple were living with the kid in the US before she returned to India in 2008. A Delhi court had on Ruchi's application granted her custody of the child under the Guardians and Wards Act.
The Delhi High Court had, however, struck down the trial court's order and asked the couple to submit themselves to the Californian court as all the three possessed US citizenship.
Aggrieved, the wife appealed through her counsel Ashish Bhan in the apex court where she accused her husband of being involved in pornography and adulterous relationship. The husband, while denying the allegations, maintained that Indian courts had no jurisdiction since a decree had already been passed by the Californian court.
Rejecting the husband's arguments, the apex court said "recognition of decrees and orders passed by foreign courts remains an eternal dilemma in as much as whenever called upon to do so, courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 of the Code of Criminal Procedure 1908 as amended by the Amendment Act of 1999 and 2002.
"The duty of a court exercising its Parens Patraie (legal guardian) jurisdiction as in cases involving custody of minor children is all the more onerous. Welfare of the minor in such cases being the paramount consideration, the court has to approach the issue regarding the validity and enforcement of a foreign decree or order carefully.
The bench hastened to add that it does not, however, mean that the order passed by a foreign court need not be considered by Indian courts.
"But it is one thing to consider the foreign judgement to be conclusive and another to treat it as a factor or consideration that would go into the making of a final decision.
"We must make it clear that no matter a court is exercising powers under the Guardian & Wards Act, it can choose to hold a summary inquiry into the matter and pass appropriate orders provided it is otherwise competent to entertain a petition for custody of the minor under Section 9(1) of the Act.
The apex court reiterated that in matters dealing with custodial rights, the interest of the minor should be paramount.
The bench said the interest of the minor shall be better served if he continued in the custody of his mother, especially when the father has contracted a second marriage and did not appear to be keen for having actual custody of the minor.
The apex court, however, minced no words in expressing displeasure at the conduct of the wife and her parents in poisoning the mind of the kid against their father.
"For a boy so young in years, these and other expressions suggesting a deep-rooted dislike for the father could arise only because of a constant hammering of negative feeling in him against his father. This approach and attitude on the part of the appellant or her parents can hardly be appreciated.
"What the appellant ought to appreciate is that feeding the minor with such dislike and despise for his father does not serve his interest or his growth as a normal child. It is important that the minor has his father¿s care and guidance, at this formative and impressionable stage of his life," the bench said.
The apex court said the father should be allowed to talk through telephone or video conference, "which too shall not only be permitted but encouraged by the appellant," Justice Thakur added.
