2009 Supreme(SC) 1822

2009(8) Supreme 430
SUPREME COURT OF INDIA
Altamas Kabir, Cyriac Joseph, JJ.
Mrs. Shilpa Aggarwal — Appellant
versus
Mr. Aviral Mittal & Anr. — Respondents
Criminal Appeal No. 2357 of 2009
(Arising out of S. L. P. (Crl.) NO. 5995 of 2009)
Decided on : 09-12-2009

Headnote:Custody of minor child – Whether a 3 and 1/2 year old girl child who was born in England of Indian Parents and was a British citizen by birth can be kept in the custody of the mother who is now currently residing in India despite an order passed on 26.11.08, by the High Court of Justice, Family Division, U. K., directing that ,child be returned to the jurisdiction of the Courts of England and Wales – Writ Petition was filed by grandfather of minor child allegedly on the strength of a Special Power of Attorney executed by the Respondent No.1father of minor child in his favour, seeking protection of the minor child before the Delhi High Court and for a direction that custody of the minor child be handed over to him – High Court disposed of writ petition filed by father of Respondent No.1 by passing order that a period of 14 days be granted to petitioner to take the child of her own to England and join proceedings before the Courts of England and Wales, failing which the child be handed over to the petitioner to be taken to England as a measure of interim custody and thereafter it was for the courts of England and Wales to determine which parent would be best suited to have the custody of the child – Appeal – High Court had placed greater reliance upon the theory of Comity of Nations and Comity of Judgments of the Courts of two different countries in deciding the matter -Having held that the High Court of Justice, Family Division, U.K., was already in seisin of the matter and had passed an interim order of restraint and having further regard to the fact that the interests of a 31/2 year old minor girl child was involved, the Delhi High Court directed that the custody of the child be made over to the father in England and in the alternative to the grand – parents in India who would return the child to the jurisdiction of the U.K. Courts – Even while considering the interests of the minor child, the High Court felt that due respect had to be given to the orders of the U.K. Court as the U.K. Court was closest to the issue involving the custody of the m1nor child who was a British citizen- High Court had noticed the fact that both appellant wife and respondent husband had set up their matrimonial home In Scotland and thereafter in England Since 2003 – Both the parents had been working for gain in the U.K. and while the minor child was holding a. British Passport, the parents had acquired permanent resident status in the U.K. – High Court did not commit any error in relying on the doctrine of Comity of Courts - Since the question of what was in the interest of the m1nor still had to be considered by the U.K. Court and the interim order passed in the proceedings initiated by the Respondent No,1 was only of an interim nature with a view to return the child to the jurisdiction of the said Court,No reason to interfere with the order of the High Court – Appeal dismissed. (Paras 23 to 31)

       Facts of the Case :

        Issue in consideration in present appeal was whether a 3and 1/2 year old girl child who was born in England of Indian Parents and is a British citizen by birth can be kept in the custody of the another who was now currently residing in India despite an order passed on 26.11.08, by the High Court of Justice, Family Division, U. K., directing that the ,child be returned to the jurisdiction of the Courts of England and Wales.

       Findings of the Court :

        Writ Petition was filed by grandfather of minor child allegedly on the strength of a Special Power of Attorney executed by the Respondent No.1father of minor child in his favour, seeking protection of the minor child before the Delhi High Court and for a direction that custody of the minor child be handed over to him.High Court disposed of writ petition filed by father of Respondent No.1 by passing order that a period of 14 days be granted to petitioner to take the child of her own to England and join proceedings before -the Courts of England and Wales, failing which the child be handed over to the petitioner to be taken to England as a measure of interim custody and thereafter it was for the courts of England and Wales to determine which parent would be best suited to have the custody of the child. Held High Court had placed greater reliance upon the theory of Comity of Nations and Comity of Judgments of the Courts of two different countries in deciding the matter .Having held that the High Court of Justice, Family Division, U.K., was already in seisin of the matter and had passed an interim order of restraint and having further regard to the fact that the interests of a 31/2 year old minor girl child was involved, the Delhi High Court directed that the custody of the child be made over to the father in England and in the alternative to the grand-parents in India who would return the child to the jurisdiction of the U.K. Courts. Even while considering the interests of the minor child, the High Court felt that due respect had to be given to the orders of the U.K. Court as the U.K. Court was closest to the issue involving the custody of the m1nor child who was a British citizen. There was yet another aspect of the matter on which the High Court had stressed. High Court had noticed the fact that both appellant wife and respondent husband had set up their matrimonial home In Scotland and thereafter in England Since 2003. Both the parents had been working for gain in the U.K. and while the minor child was holding a. British Passport, the parents had acquired permanent resident status in the U.K. High Court did not commit any error in relying on the doctrine of Comity of Courts . Since the question of what was in the interest of the m1nor still had to be considered by the U.K. Court and the interim order passed in the proceedings initiated by the Respondent No,1 was only of an interim nature with a view to return the child to the jurisdiction of the said Court. No reason was found to interfere with the order of the High Court . Appeal was dismissed.