SURYA VADANAN Vs STATE OF TAMILNADU
Bench: MADAN B. LOKUR,UDAY UMESH LALIT
Case number: Crl.A. No.-000395-000395 / 2015
Diary number: 12116 / 2014
Advocates: S. S. JAUHAR Vs
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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
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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.
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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,
19551 seeking a divorce from Surya. The petition was filed
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]
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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
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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
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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:
1. 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 : a. 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;
b. 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;
c. 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.
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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
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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 :
1. 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.
2. The 1st Respondent mother, 2nd Respondent maternal Grandfather and 3rd Respondent maternal Grandmother shall:
a. 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
b. 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.
3. The matter shall be adjourned and relisted for further
2. There is no paragraph 2(c) in the text of the order supplied to this court.
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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.
4. 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.
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 in
the jurisdiction of India, including any divorce proceedings.
8. The maternal grandparents Dr. Srinivasan Muralidharan and Mrs. Rajkumari Murlidharan shall be joined as Respondents to this application as the 2nd and 3rd Respondents respectively.
9. The mother shall make the children available for skype or alternatively telephone contact each Sunday and each Wednesday at 5.30 p.m. Indian time.
10. Liberty to the 1st Respondent mother, 2nd Respondent maternal Grandfather and 3rd Respondent maternal grandmother to apply to vary and/or discharge this order (or any part of it) upon reasonable notice to the Court and to the solicitors for the father.
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11. Costs reserved.
AND THIS HON’BLE COURT RESPECTFULLY REQUESTS THAT the administrative authorities of the British Government operating in the jurisdiction of India and the judicial and administrative authorities of India, including the Indian High Commission in England, assist in any way 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
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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
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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 Sharma3, (2)
Shilpa Aggarwal v. Aviral Mittal & Anr.4, (3) V. Ravi
Chandran v. Union of India5, (4) Ruchi Majoo v.
Sanjeev Majoo6, 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
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
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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:
(1) The modern theory of the conflict of laws recognizes
or at least prefers the jurisdiction of the State which
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has the most intimate contact with the issues arising
in the case.8
(2) 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
(3) 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 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
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)
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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
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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
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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:
(1) There are two contrasting principles of law, namely,
comity of courts and welfare of the child.
(2) 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 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
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contact13 with the child and the parents, the principle of
“comity of courts” required that the foreign court would be
the most appropriate court to decide which parent would
be best suited to have custody of the child.
(3) V. Ravi Chandran v. Union of India
33. The mother (Vijayasree Voora) had removed her
minor child (a foreign national) from the U.S.A. in violation
of a custody order dated 18th June, 2007 passed by the
Family Court of the State of New York. The custody order
was passed with her consent and with the consent of the
child’s father (Ravi Chandran, also a foreign national).
34. On 8th August, 2007, Ravi Chandran applied for
modification of the custody order and was granted, the
same day, temporary sole legal and physical custody of
the minor child and Vijayasree Voora was directed to
13 Surinder Kaur Sandhu v. Harbax Singh Sandhu
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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:
(1) The comity of nations does not require a court to
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blindly follow an order made by a foreign court.14
(2) 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
(3) The welfare of the child is the first and paramount
consideration,17 whatever orders may have been
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
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passed by the foreign court.18
(4) 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
(5) 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
(6) While considering whether a child should be
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)
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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
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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
(7) The modern theory of conflict of laws recognizes
and, in any event, prefers the jurisdiction of the State
which has the most intimate contact with the issues
21 L. (Minors), In re, (1974) 1 WLR 250 : (1974) 1 All ER 913 (CA) 22 L. (Minors), In re,
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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
23 Surinder Kaur Sandhu v. Harbax Singh Sandhu
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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
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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
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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
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answering the question in the negative. Be that as it may,
the following principles were accepted and adopted by this
court:
(1) The welfare of the child is the paramount
consideration. Simply because a foreign court has
taken a particular view on any aspect concerning the
welfare of a child is not enough for the courts in this
country to shut out an independent consideration of
the matter. The principle of comity of courts simply
demands consideration of an order passed by a
foreign court and not necessarily its enforcement.24
(2) One of the factors to be considered whether a
24 Dhanwanti Joshi v. Madhav Unde
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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
(3) 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
25 Dhanwanti Joshi v. Madhav Unde
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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
(4) 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
26 Sarita Sharma v. Sushil Sharma
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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
(5) 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,
27 V. Ravi Chandran and Aviral Mittal
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depending upon the facts of the case.28
(6) 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
28 Dhanwanti Joshi referring to Elizabeth Dinshaw v. Arvand M. Dinshaw
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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
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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:
(1) 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
(2) 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
(3) 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
29 Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw 30 V. Ravi Chandran v. Union of India
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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 –
31 V. Ravi Chandran v. Union of India
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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
32 Shilpa Aggarwal v. Aviral Mittal
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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
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;
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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
(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.
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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
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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
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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
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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.
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59. Finally, this court has accepted the view34 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
34 L. (Minors), In re,
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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
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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
35 Arathi Bandi
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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 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.
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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.
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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
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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
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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
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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
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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
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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:-
(1) Since the children Sneha Lakshmi Vadanan and
Kamini Lakshmi Vadanan are presently studying in a
school in Coimbatore and their summer vacations
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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.
(2) 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.
(3) 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).
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(4) 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.
(5) 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
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