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