IMPORTANT POINT
In cases under Guardian and Wards Act, foreign decree may be a factor but it cannot override the welfare of the minor child.

Headnote:(a) Guardian and Wards Act, 1890 – Section 9 – Mother of the child invoking jurisdiction of Delhi Court asserting that he as ordinarily residing at Delhi – Appellant and the child residing in Delhi with consent of the respondent – The child studying in Delhi for last three years – Shows intention of settling at Delhi – Delhi Court having jurisdiction. (Paras 31 and 32)
        AIR 1914 PC 41; AIR 1963 SC 1521; (2006) 7 SCC 1 – Relied upon
        AIR 1983 Mad 9; AIR 1986 P&H 113; AIR 1952 All 79; AIR 1981 Raj. 211; AIR 1983 Bom. 242 – Cited with approval
        (b) Code of Civil Procedure, 1908 – Section 13 – Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter – Since no system of Private International Law has universal recognition, the Indian Courts had to decide the validity of the foreign decree in accordance with the Indian law – Rules of Private International Law followed by other countries could not be adopted mechanically – Comity of Courts simply demanded consideration of any such order issued by foreign courts and not necessarily their enforcement – Foreign decree may be an important factor but it cannot override the welfare of the children concerned. (Paras 33, 34, 35, 39)
        (1975) 1 SCC 120; (1998) 1 SCC 112; 1951 AC 352: 1951(1) All ER 942; 1970 AC 668 : 1969(1) All ER 788; (2000) 3 SCC 14; (2010) 1 SCC 174; (2010) 1 SCC 591; (1984) 3 SCC 698; (1987) 1 SCC 42 – Relied upon
        (c) Guardian and Wards Act, 1890 – Section 9(1) – Court is competent to hold a summary enquiry and pass appropriate orders. (Para 40)
        (1998) 1 SCC 112 – Relied upon
        (d) Judicial Review – Comity of courts – The ‘minor’ concerned appearing well settled with his school, friends and maternal grand parents in Delhi – Wants to live with his mother – He is also sore at his father giving trouble to his mother – ‘Comity of courts’ cannot override welfare of the child – High Court erred in passing the impugned order. (Para 47)
        (e) Visitation rights – Respondent father not seeking visitation rights for fear of false criminal cases and the like – One such case quashed by the High Court and appeal thereagainst dismissed by Supreme Court – Supreme Court willing to issue directions to ensure that the respondent does not have any legal or other impediment in exercising his visitation rights – Father’s care and guardianship being very important for child’s healthy growth, and in the face of the child’s mind having been thoroughly polluted by the appellant against his father, directions issued for corrections and providing visitation rights to the father. (Paras 48 to 52)
        (f) Indian Penal Code, 1860 – Sections 498A and 406 – No prima facie case having been made out, High Court quashing the FIR – No reason to interfere. (Para 54)
       Facts of the case:
        1. This is a 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.
        2. 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.
        3. The mother took refuge under an order passed by the Addl. District Court at Delhi granting interim custody of the minor to her.
        4. The father of the minor filed a petition before the High Court which was allowed.
       Finding of the Court:
        High Court erred in invoking the doctrine of ‘Comity of courts’.
       Result : Civil Appeal allowed; Criminal Appeal dismissed.

JUDGMENT

T.S. Thakur, J. —

Leave granted.

2. Conflict of laws and jurisdictions in the realm of private international law is a phenomenon that has assumed greater dimensions with the spread of Indian diasporas across the globe. A large number of our young and enterprising countrymen are today looking for opportunities abroad. While intellectual content and technical skills of these youngster find them lucrative jobs in distant lands, complete assimilation with the culture, the ways of life and the social values prevalent in such countries do not come easy. The result is that in very many cases incompatibility of temperament apart, diversity of backgrounds and inability to accept the changed lifestyle often lead to matrimonial discord that inevitably forces one or the other party to seek redress within the legal system of the country which they have adopted in pursuit of their dreams. Experience has also shown that in a large number of cases one of the parties may return to the country of his or her origin for family support, shelter and stability. Unresolved disputes in such situations lead to legal proceedings in the country of origin as well as in the adoptive country. Once that happens issues touching the jurisdiction of the courts examining the same as also comity of nations are thrown up for adjudication.

3. The present happens to be one such case where legal proceedings have engaged the parties in a bitter battle for the custody of their only child Kush, aged about 11 years born in America hence a citizen of that country by birth. These proceedings included an action filed by the father-respondent in this appeal, before the American Court seeking divorce from the respondent-wife and also custody of master Kush. An order passed by the Superior court of California, County of Ventura in America eventually led to the issue of a red corner notice based on allegations of child abduction levelled against the mother who like the father of the minor child is a person of Indian origin currently living with her parents in Delhi. The mother took refuge under an order dated 4th April, 2009 passed by the Addl. District Court at Delhi in a petition filed under Sections 7, 8, 10, 11 of the Guardians and Wards Act granting interim custody of the minor to her. Aggrieved by the said order the father of the minor filed a petition under Article 227 of the Constitution of India before the High Court of Delhi. By the order impugned in this appeal the High Court allowed that petition, set aside the order passed by the District Court and dismissed the custody case filed by the mother primarily on the ground that the Court at Delhi had no jurisdiction to entertain the same as the minor was not ordinarily residing at Delhi - a condition precedent for the Delhi Court to exercise jurisdiction. The High Court further held that all issues relating to the custody of child ought to be agitated and decided by the Court in America not only because that Court had already passed an order to that effect in favour of the father, but also because all the three parties namely, the parents of the minor and the minor himself were American citizens. The High Court buttressed its decision on the principle of comity of courts and certain observations made by this Court in some of the decided cases to which we shall presently refer.

4. 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

5. The

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2011 Supreme(SC) 529

IMPORTANT POINT In cases under Guardian and Wards Act, foreign decree may be a factor but it cannot override the welfare of the minor child.

Cases Referred (16)

IMPORTANT POINT
In cases under Guardian and Wards Act, foreign decree may be a factor but it cannot override the welfare of the minor child.