SURYA VADANAN Vs. STATE OF TAMILNADU & ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 395 of 2015, Judgment Date: Feb 27, 2015
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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.
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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. -
From a review of the above decisions, it is quite clear that there is complete unanimity that the best interests and welfare of the child are of paramount importance. However, it should be clearly understood that this is the final goal or the final objective to be achieved - it is not the beginning of the exercise but the end. -
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"[32] 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. -
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 closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural milieu in which the child has been brought up rather than a domestic court. This is a factor that must be kept in mind.
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Second, there is no reason why the principle of "comity of courts" should be jettisoned, except for special and compelling reasons. This is more so in a case where only an interim or an interlocutory order has been passed by a foreign court (as in the present case). -
If the principle of comity of courts is accepted, and it has been so accepted by this court, we must give due respect even to such orders passed by a foreign court. The High Court misdirected itself by looking at the issue as a matter of legal rights of the parties. Actually, the issue is of the legal obligations of the parties, in the context of the order passed by the foreign court. -
If an interim or an interlocutory order passed by a foreign court has to be disregarded, there must be some special reason for doing so. No doubt we expect foreign courts to respect the orders passed by courts in India and so there is no justifiable reason why domestic courts should not reciprocate and respect orders passed by foreign courts. This issue may be looked at from another perspective. If the reluctance to grant respect to an interim or an interlocutory order is extrapolated into the domestic sphere, there may well be situations where a Family Court in one State declines to respect an interim or an interlocutory order of a Family Court in another State on the ground of best interests and welfare of the child. This may well happen in a case where a person ordinarily resident in one State gets married to another person 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.
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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 must be given to a substantive order prior in point of time to a substantive order passed by another court (foreign or domestic). -
There may be a case, as has happened in the present appeal, where one parent invokes the jurisdiction of a court but does not obtain any substantive order in his or her favour and the other parent invokes the jurisdiction of another court and obtains a substantive order in his or her favour before the first court. In such an event, due respect and weight ought to be given to the substantive order passed by the second court since that interim or interlocutory order was passed prior in point of time. As mentioned above, this situation has arisen in the present appeal -
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 395 OF 2015
(Arising out of S.L.P. (Crl.) No.3634 of 2014)
Surya Vadanan ...Appellant
Versus
State of Tamil Nadu & Ors. ...Respondents
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 joined her husband Surya in U.K.
sometime in March 2000. Later she acquired British citizenship and a
British passport sometime in February 2004. As such, both Surya and Mayura
are British citizens and were ordinarily resident in U.K. Both were also
working for gain in the U.K.
6. On 23rd September, 2004, a girl child Sneha Lakshmi Vadanan was born
to the couple in U.K. Sneha Lakshmi is a British citizen by birth. On
21st September, 2008 another girl child Kamini Lakshmi Vadanan was born to
the couple in U.K. and she too is a British citizen by birth. The elder
girl child is now a little over 10 years of age while the younger girl
child is now a little over 6 years of age.
7. It appears that the couple was having some matrimonial problems and
on 13th August, 2012 Mayura left U.K. and came to India along with her two
daughters. Before leaving, she had purchased return tickets for herself
and her two daughters for 2nd September, 2012. She says that the round-trip
tickets were cheaper than one-way tickets and that is why she had purchased
them. According to Surya, the reason for the purchase of round-trip
tickets was that the children's schools were reopening on 5th September,
2012 and she had intended to return to U.K. before the school reopening
date.
8. Be that as it may, on her arrival in India, Mayura and her daughters
went to her parents house in Coimbatore (Tamil Nadu) and have been staying
there ever since.
9. On 21st August, 2012 Mayura prepared and signed a petition under
Section 13(1)(i-a) of the Hindu Marriage Act, 1955[1] seeking a divorce
from Surya. The petition was filed in the Family Court in Coimbatore on
23rd August, 2012. We are told that an application for the custody of the
two daughters was also filed by Mayura but no orders seem to have been
passed on that application one way or the other.
10. On or about 23rd August, 2012 Surya came to know that Mayura was
intending to stay on in India along with their two daughters. Therefore, he
came to Coimbatore on or about 27th August, 2012 with a view to amicably
resolve all differences with Mayura. Interestingly while in Coimbatore,
Surya lived in the same house as Mayura and their two daughters, that is,
with Surya's in-laws. According to Surya, he was unaware that Mayura had
already filed a petition to divorce him.
11. Since it appeared that the two daughters of the couple were not likely
to return 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
would continue their studies in U.K. (ii) that the children had left the
school without information that perhaps they would not be returning to
continue their studies.
14. On 13th November, 2012 the High Court of Justice passed an order making
the children wards of the court "during their minority or until such time
as this provision of this order is varied or alternatively discharged by
the further order of the court" and requiring Mayura to return the children
to the jurisdiction of the foreign court. The relevant extract of the
order passed by the foreign court on 13th November, 2012 reads as under:-
"IT IS ORDERED THAT:
The children SNEHA LAKSHMI VADANAN AND KAMINI LAKSHMI VADANAN shall be and
remain wards of this Honourable Court during their minority or until such
time as this provision of this order is varied or alternatively discharged
by the further order of the court.
2. The Respondent mother shall :
By no later than 4 p.m. on 20th November 2012 inform the father, through
his solicitors (Messrs Dawson Cornwell, 15 Red Lion Square, London, WC1R
4QT. Tel: 0207 242 2556 Ref: SJ/AMH), of the current care arrangements for
the children;
By no later than 4 p.m. on 20th November 2012 inform the father, through
his said solicitors, of the arrangements that will be made for the
children's return pursuant to paragraph 2(c) herein;
Return the children to the jurisdiction of England and Wales by no later
than 11.59 p.m. on 27th November 2012;
d. Attend at the hearing listed pursuant to paragraph 3 herein, together
with solicitors and/or counsel if so instructed.
A penal notice is attached to this paragraph.
3. The matter shall be adjourned and relisted for further directions or
alternatively determination before a High Court Judge of the Family
Division sitting in chambers at the Royal Court of Justice, Strand, London
on 29th November 2012 at 2 p.m. with a time estimate of 30 minutes.
4. The mother shall have leave, if so advised, to file and serve a
statement in response to the statement of the Applicant father. Such
statement to be filed and served by no later than 12 noon on 29th November
2012.
5. Immediately upon her and the children's return to the jurisdiction of
England and Wales the mother shall lodge her and the children's passports
and any other travel documents with the Tipstaff (Tipstaff's Office, Royal
Courts of Justice, Strand, London) to 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
d. 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 20th November, 2012. A rejoinder was filed by Surya on
13th December, 2012.
16. Apparently, after taking into consideration the written statement, the
foreign court passed another order on 29th November, 2012 virtually
repeating its earlier order and renewing its request to the administrative
authorities of the British Government in India and the judicial and
administrative authorities in India for assistance for repatriation of the
wards of the court to England and Wales, the country of their habitual
residence. The relevant extract of the order dated 29th November, 2012
reads as under:-
"IT IS ORDERED THAT :
The children SNEHA LAKSHMI VADANAN AND KAMINI VADANAN shall be and remain
wards of this Hon'ble Court during their minority and until such time as
this provision of this Order is varied or alternatively discharged by the
further Order of the Court.
The 1st Respondent mother, 2nd Respondent maternal Grandfather and 3rd
Respondent maternal Grandmother shall:
Forthwith upon serve of this Order upon them inform the father, through his
said solicitors, of the arrangements that will be made for the children's
return pursuant to paragraph 2(c) herein;[2]
Return the children to the jurisdiction of England and Wales forthwith upon
service of this Order upon them;
A penal notice is attached to this paragraph.
The matter shall be adjourned and relisted for further directions or
alternatively determination before a High Court Judge of the Family
Division sitting in chambers at the Royal Court of Justice, Strand, London
within 72 hours of the return of the children or alternatively upon
application to the Court for a further hearing.
The father shall have leave, if so advised, to file and serve a statement
of the mother. Such statement to be filed and served by no later than 12
noon on 13th December 2012.
Immediately upon her and the children's return to the jurisdiction of
England and Wales the mother shall lodge her and the children's passports
and any other travel documents with the Tipstaff (Tipstaff's Office, Royal
Courts of Justice, Strand, London) to be held by him to the Order of the
Court.
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.
The Applicant father shall have leave to disclose this order to:
The Foreign and Commonwealth Office;
The British High Commission, New Delhi;
The Indian High Commission, London;
Into any proceedings as the mother may have issued in the jurisdiction of
India, including any divorce proceedings.
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.
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.
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.
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."
17. We are told that no further effective or substantial orders have been
passed by the foreign court thereafter.
Proceedings in the High Court
18. Since Mayura was not complying with the orders passed by the foreign
court, Surya filed a writ petition in the Madras High Court in February
2013 (being HCP No.522 of 2013) for a writ of habeas corpus on the ground,
inter alia, that Mayura had illegal custody of the two daughters of the
couple that is Sneha Lakshmi Vadanan and Kamini Lakshmi Vadanan and that
they may be produced in court and appropriate orders may be passed
thereafter.
19. After completion of pleadings, the petition filed by Surya was heard by
the Madras High Court and by a judgment and order dated 4th November, 2013
the writ petition was effectively dismissed.
20. The Madras High Court, in its decision, took the view that the welfare
of the children (and not the legal right of either of the parties) was of
paramount importance. On facts, the High Court was of opinion that since
the children were in the custody of Mayura and she was their legal
guardian, it could not be said that the custody was illegal in any manner.
It was also noted that Surya was permitted to take custody of the children
every Friday, Saturday and Sunday during the pendency of the proceedings in
the Madras High Court; that the order passed by the foreign court had been
duly complied with and that Surya had also returned to the U.K. On these
facts and in view of the law, the Madras High Court "closed" the petition
filed by Surya seeking a writ of habeas corpus.
21. Feeling aggrieved, Surya has preferred the present appeal on or about
9th April, 2014.
Important decisions of this court
22. There are five comparatively recent and significant judgments delivered
by this court on the issue of child custody where a foreign country or
foreign court is concerned on the one hand and India or an Indian court (or
domestic court) is concerned on the other. These decisions are: (1) Sarita
Sharma v. Sushil Sharma[3], (2) Shilpa Aggarwal v. Aviral Mittal & Anr.[4],
(3) V. Ravi Chandran v. Union of India[5], (4) Ruchi Majoo v. Sanjeev
Majoo[6], and (5) Arathi Bandi v. Bandi Jagadrakshaka Rao.[7] 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 children to USA without any hindrance.
Feeling aggrieved, Sarita Sharma preferred an appeal in this court.
25. This court noted that Sushil Sharma was an alcoholic and had used
violence against Sarita Sharma. It also noted that Sarita Sharma's conduct
was not "very satisfactory" but that before she came to India, she was in
lawful custody of the children but "she had committed a breach of the order
of the American Court directing her not to remove the children from the
jurisdiction of that Court without its permission."
26. This court noted the following principles regarding custody of the
minor children of the couple:
The modern theory of the conflict of laws recognizes or at least prefers
the jurisdiction of the State which has the most intimate contact with the
issues arising in the case.[8]
Even though Section 6 of the Hindu Minority and Guardianship Act, 1956
constitutes the father as the natural guardian of a minor son, that
provision cannot supersede the paramount consideration as to what is
conducive to the welfare of the minor.[9]
The domestic court will consider the welfare of the child as of paramount
importance and the order of a foreign court is only a factor to be taken
into consideration.[10]
On the merits of the case, this Court observed:
"Considering all the aspects relating to the welfare of the children, we
are of the opinion that in spite of the order passed by the Court in U.S.A.
it was not [pic]proper for the High Court to have allowed the habeas corpus
writ petition and directed the appellant to hand over custody of the
children to the respondent and permit him to take them away to U.S.A. What
would be in the interest of the children requires a full and thorough
inquiry and, therefore, the High Court should have directed the respondent
to initiate appropriate proceedings in which such an inquiry can be held."
27. Notwithstanding this, neither was the matter remanded to the High Court
for issuing such a direction to Sushil Sharma to approach the appropriate
court for conducting a "full and thorough" inquiry nor was such a direction
issued by this court. The order of the Delhi High Court was simply set
aside and the 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 forum-shopping.
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
citizens of Indian origin. They had a minor child (also a foreign national)
from their marriage. They had matrimonial differences and as a result,
Shilpa Aggarwal came to India from the U.K. with their minor child. She
was expected to return to the U.K. but cancelled their return tickets and
chose to stay on in India. Aviral Mittal thereupon initiated proceedings
before the High Court of Justice, Family Division, U.K. and on 26th
November, 2008 the foreign court directed Shilpa Aggarwal, inter alia, to
return the minor child to the jurisdiction of that foreign court.
Incidentally, the order passed by the foreign court is strikingly similar
to the order passed by the foreign court subject matter of the present
appeal.
30. Soon thereafter, Shilpa Aggarwal's father filed a writ petition in the
Delhi High Court seeking protection of the child and for a direction that
the custody of the child be handed over to him. The High Court effectively
dismissed the writ petition and granted time to Shilpa Aggarwal to take the
child on her own to the U.K. and participate in the proceedings in the
foreign court failing which the child be handed over to Aviral Mittal to be
taken to the U.K. as a measure of interim custody, leaving it for the
foreign court to determine which parent would be best suited to have the
custody of the child.
31. Feeling aggrieved, Shilpa Aggarwal preferred an appeal before this
court which noted and observed that the following principles were
applicable for deciding a case of this nature:
There are two contrasting principles of law, namely, comity of courts and
welfare of the child.
In matters of custody of minor children, the sole and predominant
criterion is the interest and welfare of the minor child.[11] Domestic
courts cannot be guided entirely by the fact that one of the parents
violated an order passed by a foreign court.[12]
32. On these facts and applying the principles mentioned above, this court
agreed with the view of the High Court that the order dated 26th November,
2008 passed by the foreign court did not intend to separate the child from
Shilpa Aggarwal until a final decision was taken with regard to the custody
of the 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[13] 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
immediately turn over the minor child and his passport to Ravi Chandran and
further, her custodial time with the child was suspended. The foreign court
also ordered that the issue of custody of the child shall be heard by the
jurisdictional Family Court in the USA.
35. On these broad facts, Ravi Chandran moved a petition for a writ of
habeas corpus in this court for the production of the child and for his
custody. The child was produced in this court and the question for
consideration was: "What should be the order in the facts and circumstances
keeping in mind the interest of the child and the orders of the courts of
the country of which the child is a national."
36. This court referred to a large number of decisions and accepted the
following observations, conclusions and principles:
The comity of nations does not require a court to blindly follow an order
made by a foreign court.[14]
Due weight should be given to the views formed by the courts of a foreign
country of which the child is a national. The comity of courts demands not
the enforcement of an order of a foreign court but its grave
consideration.[15] The weight and persuasive effect of a foreign judgment
must depend on the facts and circumstances of each case.[16]
The welfare of the child is the first and paramount consideration,[17]
whatever orders may have been passed by the foreign court.[18]
The domestic court is bound to consider what is in the best interests of
the child. Although the order of a foreign court will be attended to as one
of the circumstances to be taken into account, it is not conclusive, one
way or the other.[19]
One of the considerations that a domestic court must keep in mind is that
there is no danger to the moral or physical health of the child in
repatriating him or her to the jurisdiction of the foreign country.[20]
While considering whether a child should be removed to the jurisdiction of
the foreign court or not, the domestic court may either conduct a summary
inquiry or an elaborate inquiry in this regard. In the event the domestic
court conducts a summary inquiry, it would return the custody of the child
to the country from which the child was removed unless such return could 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.[21] 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.[22]
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.[23]
37. On the facts of the case, it was held that an elaborate inquiry was not
required to be conducted. It was also observed that there was nothing on
record which could remotely suggest that it would be harmful for the child
to return to his native country. Consequently, this court directed the
repatriation of the child to the jurisdiction of the foreign court subject
to certain directions given in the judgment.
38. This court also quoted a passage from Sarita Sharma to the effect that
a decree passed by a foreign court cannot override the consideration of
welfare of a child.
(4) Ruchi Majoo v. Sanjeev Majoo
39. Ruchi Majoo (wife) had come to India with her child consequent to
matrimonial differences between her and her husband (Sanjeev Majoo). All
three that is Ruchi Majoo, Sanjeev Majoo and their child were foreign
nationals.
40. Soon after Ruchi Majoo came to India, Sanjeev Majoo approached the
Superior Court of California, County of Ventura in the USA seeking a
divorce from Ruchi Majoo and obtained a protective custody warrant order on
9th September, 2008 which required Ruchi Majoo to appear before the foreign
court. She did not obey the order of the foreign court perhaps because she
had initiated proceedings before the Guardian Court at Delhi on 28th
August, 2008. In any event, the Guardian Court passed an ex-parte ad
interim order on 16th September, 2008 (after the protective custody warrant
order passed by the foreign court) to the effect that Sanjeev Majoo shall
not interfere with the custody of her minor child till the next date of
hearing.
41. Aggrieved by this order, Rajiv Majoo challenged it through a petition
under Article 227 of the Constitution filed in the Delhi High Court. The
order of 16th September, 2008 was set aside by the High Court on the ground
that the Guardian Court had no jurisdiction to entertain the proceedings
since the child was not ordinarily resident in Delhi. It was also held that
the issue of the child's custody ought to be decided by the foreign court
for the reason that it had already passed the protective custody warrant
order and also because the child and his parents were American citizens.
42. On these broad facts, this court framed three questions for
determination. These questions are as follows:-
(i) Whether the High Court was justified in dismissing the petition for
custody of the child on the ground that the court at Delhi had no
jurisdiction to entertain it; (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 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:
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.[24]
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 the
jurisdiction of the foreign court is the time gap in moving the domestic
court for repatriation. The longer the time gap, the lesser the inclination
of the domestic courts to go in for a summary inquiry.[25]
An order of a foreign court is one of the factors to be considered for the
repatriation of a child to the jurisdiction of the foreign court. But that
will not override the consideration of welfare of the child. Therefore,
even where the removal of a child from the jurisdiction of the foreign
court goes against the orders of that foreign court, giving custody of the
child to the parent who approached the foreign court would not be warranted
if it were not in the welfare of the child.[26]
Where a child has been removed from the jurisdiction of a foreign court in
contravention of an order passed by that foreign court where the parties
had set up their matrimonial home, the domestic court must consider whether
to conduct an elaborate or summary inquiry on the question of custody of
the child. If an elaborate inquiry is to be held, the domestic court may
give due weight to the order of the foreign court depending upon the facts
and circumstances in which such an order has been passed.[27]
A constitutional court exercising summary jurisdiction for the issuance
of a writ of habeas corpus may conduct an elaborate inquiry into the
welfare of the child whose custody is claimed and a Guardian Court (if it
has jurisdiction) may conduct a summary inquiry into the welfare of the
child, depending upon the facts of the case.[28]
Since the interest and welfare of the child is paramount, a domestic court
"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."
44. 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]."
(5) Arathi Bandi v. Bandi Jagadrakshaka Rao
45. The facts in this case are a little 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 defiance of
the orders passed by the foreign court and that she also ignored the orders
passed by the High Court. Consequently, this court was of the view that
given her conduct, no relief could be granted to Arathi Bandi.
49. This court took into consideration various principles laid down from
time to time in different decisions rendered by this court with regard to
the custody of a minor child. It was held that:
It is the duty of courts in all countries to see that a parent doing wrong
by removing a child out of the country does not gain any advantage of his
or her wrong doing.[29]
In a given case relating to the custody of a child, it may be necessary to
have an elaborate inquiry with regard to the welfare of the child or a
summary inquiry without investigating the merits of the dispute relating to
the care of the child on the ground that such an order is in the best
interests of the child.[30]
Merely because a child has been brought to India from a foreign country
does not necessarily mean that the domestic court should decide the custody
issue. It would be in accord with the principle of comity of courts to
return the child to the jurisdiction of the foreign court from which he or
she has been removed.[31]
Discussion of the law
50. 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.
51. From a review of the above decisions, it is quite clear that there is
complete unanimity that the best interests and welfare of the child are of
paramount importance. However, it should be clearly understood that this is
the final goal or the final objective to be achieved - it is not the
beginning of the exercise but the end.
52. 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"[32] 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 closest concern with the child would be better equipped and perhaps
best suited to appreciate the social and cultural milieu in which the child
has been brought up rather than a domestic court. This is a factor that
must be kept in mind.
54. Second, there is no reason why the principle of "comity of courts"
should be jettisoned, except for special and compelling reasons. This is
more so in a case where only an interim or an interlocutory order has been
passed by a foreign court (as in the present case). In McKee which has been
referred to in several decisions of this court, the Judicial Committee of
the Privy Council was not dealing with an interim or an interlocutory order
but a final adjudication. The applicable principles are entirely different
in such cases. In this appeal, we are not concerned with a final
adjudication by a foreign court - the principles for dealing with a foreign
judgment are laid down in Section 13 of the Code of Civil Procedure.[33] In
passing an interim or an interlocutory order, a foreign court is as capable
of making a prima facie fair adjudication as any domestic court and there
is no reason to undermine its competence or capability. If the principle of
comity of courts is accepted, and it has been so accepted by this court, we
must give due respect even to such orders passed by a foreign court. The
High Court misdirected itself by looking at the issue as a matter of legal
rights of the parties. Actually, the issue is of the legal obligations of
the parties, in the context of the order passed by the foreign court.
55. If an interim or an interlocutory order passed by a foreign court has
to be disregarded, there must be some special reason for doing so. No doubt
we expect foreign courts to respect the orders passed by courts in India
and so there is no justifiable reason why domestic courts should not
reciprocate and respect orders passed by foreign courts. This issue may be
looked at from another perspective. If the reluctance to grant respect to
an interim or an interlocutory order is extrapolated into the domestic
sphere, there may well be situations where a Family Court in one State
declines to respect an interim or an interlocutory order of a Family Court
in another State on the ground of best interests and welfare of the child.
This may well happen in a case where a person ordinarily resident in one
State gets married to another person 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 must be given to a substantive
order prior in point of time to a substantive order passed by another court
(foreign or domestic).
57. There may be a case, as has happened in the present appeal, where one
parent invokes the jurisdiction of a court but does not obtain any
substantive order in his or her favour and the other parent invokes the
jurisdiction of another court and obtains a substantive order in his or her
favour before the first court. In such an event, due respect and weight
ought to be given to the substantive order passed by the second court since
that interim or interlocutory order was passed prior in point of time. As
mentioned above, this situation has arisen in the present appeal - Mayura
had initiated divorce proceedings in India before the custody proceedings
were initiated by Surya in the U.K. but the foreign court passed a
substantive order on the custody issue before the domestic court. This
situation also arose in Ruchi Majoo where Ruchi Majoo had invoked the
jurisdiction of the domestic court before Rajiv Majoo but in fact Rajiv
Majoo obtained a substantive order from the foreign court before the
domestic court. While the substantive order of the foreign court in Ruchi
Majoo was accorded due respect and weight but for reasons not related to
the principle of comity of courts and on merits, custody of the child was
handed over to Ruchi Majoo, notwithstanding the first strike principle.
58. As has been held in Arathi Bandi a violation of an interim or an
interlocutory order passed by a court of competent jurisdiction ought to be
viewed strictly if the rule of law is to be maintained. No litigant can be
permitted to defy or decline adherence to an interim or an interlocutory
order of a court merely because he or she is of the opinion that that order
is incorrect - that has to be judged by a superior court or by another
court having jurisdiction to do so. It is in this context that the
observations of this court in Sarita Sharma and Ruchi Majoo have to be
appreciated. If as a general principle, the violation of an interim or an
interlocutory order is not viewed seriously, it will have widespread
deleterious effects on the authority of courts to implement their interim
or interlocutory orders or compel their adherence. Extrapolating this to
the courts in our country, it is common knowledge that in cases of
matrimonial differences in our country, 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[34] that in a given case, it
might be appropriate to have an elaborate inquiry to decide whether a child
should be repatriated to the foreign country and to the jurisdiction of the
foreign court or in a given case to have a summary inquiry without going
into the merits of the dispute relating to the best interests and welfare
of the child and repatriating the child to the foreign country and to the
jurisdiction of the foreign court.
60. However, if there is a pre-existing order of a foreign court of
competent jurisdiction and the domestic court decides to conduct an
elaborate inquiry (as against a summary inquiry), it must have special
reasons to do so. An elaborate inquiry should not be ordered as a matter
of course. While deciding whether a summary or an elaborate inquiry should
be conducted, the domestic court must take into consideration:
(a) The nature and effect of the interim or interlocutory order passed by
the foreign court.
(b) The existence of special reasons for repatriating or not repatriating
the child to the jurisdiction of the foreign court.
(c) The repatriation of the child does not cause any moral or physical or
social or cultural or psychological harm to the child, nor should it cause
any legal harm to the parent with whom the child is in India. There are
instances where the order of the foreign court may result in the arrest of
the parent on his or her return to the foreign country.[35] In such cases,
the domestic court is also obliged to ensure the physical safety of the
parent.
(d) The alacrity with which the parent moves the concerned foreign court or
the concerned domestic court is also relevant. If the time gap is unusually
large and is not reasonably explainable and the child has developed firm
roots in India, the domestic court may be well advised to conduct an
elaborate inquiry.
Discussion on facts
61. The facts in this appeal reveal that Surya and Mayura are citizens of
the U.K. and their children are also citizens of the U.K.; they (the
parents) have been residents of the U.K. for several years and worked for
gain over there; they also own immovable property (jointly) in the U.K.;
their children were born and brought up in the U.K. in a social and
cultural milieu different from that of India and they have grown up in that
different milieu; their elder daughter was studying in a school in the U.K.
until she was brought to India and the younger daughter had also joined a
school in the U.K. meaning thereby that their exposure to the education
system was different from the education system in India.[36] 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 fact that Mayura is of Indian origin cannot be an
overwhelming factor.
63. Though Mayura filed proceedings for divorce in India way back in August
2012, she made no serious effort to obtain any interim order in her favour
regarding the custody of the children, nor did she persuade the trial court
for more than two years to pass an interim order for the custody of the
children. On the other hand, the foreign court acted promptly on the
asking of Surya and passed an interim order regarding the custody of the
children, thereby making the first strike principle applicable.
64. It would have been another matter altogether if the Family Court had
passed an effective or substantial order or direction prior to 13th
November, 2012 then, in our view, the foreign court would have had to
consider exercising self-restraint and abstaining from disregarding the
direction or order of the Family Court by applying the principle of comity
of courts. However, since the first effective order or direction was passed
by the foreign court, in our opinion, principle of comity of courts would
tilt the balance in favour of that court rather than the Family Court. We
are assuming that the Family Court was a court of competent jurisdiction
although we must mention that according to Surya, the Family Court has no
jurisdiction over the matter of the custody of the two children of the
couple since they are both British citizens and are ordinarily residents of
the U.K. However, it is not necessary for us to go into this issue to
decide this because even on first principles, we are of the view that the
orders or directions passed by the foreign court must have primacy on the
facts of the case, over the Family Court in Coimbatore. No specific or
meaningful reason has been given to us to ignore or bypass the direction or
order of the foreign court.
65. We have gone through the orders and directions passed by the foreign
court and find that there is no final determination on the issue of custody
and what the foreign court has required is for Mayura to present herself
before it along with the two children who are wards of the foreign court
and to make her submissions. The foreign court has not taken any final
decision on the custody of the children. It is quite possible that the
foreign court may come to a conclusion, after hearing both parties that the
custody of the children should be with Mayura 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, if the facts so
warrant, to pass an order that the custody of the children should be with
Mayura in India.
67. There is also nothing on the record to indicate that any prejudice will
be caused to the children of Mayura and Surya if they are taken to the U.K.
and subjected to the jurisdiction of the foreign court. There is nothing
to suggest that they will be prejudiced in any manner either morally or
physically or socially or culturally or psychologically if they continue as
wards of the court until a final order is passed by the foreign court.
There is nothing to suggest that the foreign court is either incompetent or
incapable of taking a reasonable, just and fair decision in the best
interests of the children and entirely for their welfare.
68. There is no doubt that the foreign court has the most intimate contact
with Mayura and her children and also the closest concern with the well
being of Mayura, Surya and their children. That being the position even
though Mayura did not violate any order of the foreign court when she
brought her children to India, her continued refusal to abide by the
interim and interlocutory order of the foreign court is not justified and
it would be certainly in the best interests and welfare of the children if
the foreign court, in view of the above, takes a final decision on the
custody of the children at the earliest. The foreign court undoubtedly has
the capacity to do so.
69. 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.
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 this court) that no
amicable solution was
possible with regard to the custody of the children.
72. 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.
73. Accordingly, we direct as follows:-
Since the children Sneha Lakshmi Vadanan and Kamini Lakshmi Vadanan are
presently studying in a school in Coimbatore and their summer vacations
commence (we are told) in May, 2015 Mayura Vadanan will take the children
to the U.K. during the summer vacations of the children and comply with the
order dated 29th November, 2012 and participate (if she so wishes) in the
proceedings pending in the High Court of Justice. Surya Vadanan will bear
the cost of litigation expenses of Mayura Vadanan.
Surya Vadanan will pay the air fare or purchase the tickets for the travel
of Mayura Vadanan and the children to the U.K. and later, if necessary, for
their return to India. He shall also make all arrangements for their
comfortable stay in their matrimonial home, subject to further orders of
the High Court of Justice.
Surya Vadanan will pay maintenance to Mayura Vadanan and the children at a
reasonable figure to be decided by the High Court of Justice or any other
court having jurisdiction to take a decision in the matter. Until then, and
to meet immediate out of pocket expenses, Surya Vadanan will give to Mayura
Vadanan prior to her departure from India an amount equivalent to 1000
(Pounds one thousand only).
Surya Vadanan shall ensure that all coercive processes that may result in
penal consequences against Mayura Vadanan are dropped or are not pursued by
him.
In the event Mayura Vadanan does not comply with the directions given by
us, Surya Vadanan will be entitled to take the children with him to the
U.K. for further proceedings in the High Court of Justice. To enable this,
Mayura Vadanan will deliver to Surya Vadanan the passports of the children
Sneha Lakshmi Vadanan and Kamini Lakshmi Vadanan.
74. The appeal is disposed of on the above terms.
................................J
(Madan B. Lokur)
................................J
(Uday Umesh Lalit)
New Delhi;
February 27, 2015
-----------------------
[1] 13. Divorce.-(1) Any marriage solemnized, whether before or after the
commencement of this Act, may, on a petition presented by either the
husband or the wife, be dissolved by 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] (2000) 3 SCC 14
[4] (2010) 1 SCC 591
[5] (2010) 1 SCC 174
[6] (2011) 6 SCC 479
[7] (2013) 15 SCC 790
[8] Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698
[9] Surinder Kaur Sandhu v. Harbax Singh Sandhu
[10] Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112 which in turn
referred to McKee v. McKee, 1951 AC 352: (1951) 1 All ER 942 (PC)
[11] Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42. Even
though this court used the word "sole", it is clear that it did not reject
or intend to reject the principle of comity of courts.
[12] Sarita Sharma v. Sushil Sharma
[13] Surinder Kaur Sandhu v. Harbax Singh Sandhu
[14] B's Settlement, In re. B. v. B.,1940 Ch 54: (1951) 1 All ER 949 and
McKee v. McKee
[15] McKee v. McKee
[16] McKee v. McKee
[17] McKee v. McKee
[18] B's Settlement, In re
[19] Kernot v. Kernot, 1965 Ch 217: (1964) 3 WLR 1210: (1964) 3 All ER
339
[20] H. (Infants) , In re, (1966) 1 WLR 381 (Ch & CA) : (1966) 1 All ER
886 (CA)
[21] L. (Minors), In re, (1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)
[22] L. (Minors), In re,
[23] Surinder Kaur Sandhu v. Harbax Singh Sandhu
[24] Dhanwanti Joshi v. Madhav Unde
[25] Dhanwanti Joshi v. Madhav Unde
[26] Sarita Sharma v. Sushil Sharma
[27] V. Ravi Chandran and Aviral Mittal
[28] Dhanwanti Joshi referring to Elizabeth Dinshaw v. Arvand M. Dinshaw
[29] Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw
[30] V. Ravi Chandran v. Union of India
[31] V. Ravi Chandran v. Union of India
[32] Shilpa Aggarwal v. Aviral Mittal
[33] 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 to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force
in India.
[34] L. (Minors), In re,
[35] Arathi Bandi
[36] In our order dated 9th July, 2014 we have noted that according to
Mayura the children are attending some extra classes. This is perhaps to
enable them to adjust to the education system and curriculum in India.