2015 Supreme(SC) 198

SUPREME COURT OF INDIA
MADAN B. LOKUR, UDAY UMESH LALIT, JJ.
SURYA VADANAN – APPELLANT
VS.
STATE OF TAMIL NADU & ORS. – RESPONDENTS
[Criminal Appeal No. 395 of 2015 arising out of S.L.P. (CRL.) No.3634 of 2014]
Decided On : 27-02-2015

IMPORTANT POINTS
Orders, including interim or interlocutory, of foreign court should be respected by a domestic court and vice-versa applying first strike principle.
Doctrine of ‘comity of courts’, ‘best interests of the child’, ‘most intimate contact’ with and ‘closest concern’ for the children explained and applied.

Headnote:(a) Administration of Justice – Comity of courts – Essentially a principle of self-restraint – Substantial order passed by either the foreign or domestic court earlier in point of time shall be respected by the other court – Can be deviated for good reasons. (Para 50, 57)

       (b) Matrimonial law – Custody of child – Best interests and welfare of the child are of paramount importance – Doctrine of ‘most intimate contact’ and the ‘closest concern’ with the child. (Para 51, 55)

       (1984) 3 SCC 698 – Relied upon

       (2000) 3 SCC 14; (2010) 1 SCC 591; (2010) 1 SCC 174; (2011) 6 SCC 479; (2013) 15 SCC 790; (1998) 1 SCC 112; 1951 AC 352: (1951) 1 All ER 942 (PC); (1987) 1 SCC 42; 1965 Ch 217: (1964) 3 WLR 1210: (1964) 3 All ER 339; (1966) 1 WLR 381 (Ch & CA) : (1966) 1 All ER 886 (CA); (1974) 1 WLR 250 : (1974) 1 All ER 913 (CA) – Referred

       (c) Matrimonial law – Custody of child – Two principles of law – Comity of courts and best interests of the child – "Contrasting principles of law" – a (Para 52)

       (2010) 1 SCC 591 – Referred

       (d) Code of Civil Procedure, 1908 – Section 13 – Comity of courts – Orders passed by foreign courts – Final as well as interim orders should be respected. (Para 54)

       (e) Matrimonial law – Custody of child – High Court looking at the issue as a matter of legal rights of the parties – In fact it is the issue of legal obligations of the parties rather than their rights. (Para 54)

       (f) Matrimonial law – Custody of children – Code of Civil Procedure, 1908 – Section 13 – Husband and wife both of Indian origin – Both now British citizen – Their children British citizen by birth – Wife coming to India with children but not taking any steps to rescind British citizenship and acquire Indian citizenship – No reason why they should not submit to jurisdiction of British court – In fact Indian courts should encourage such course of action because such court has the most intimate contact with and closest concern for them. (Para 62)

       (g) Code of Civil Procedure, 1908 – Section 13 – Wife filing divorce petition and petition for custody of children way back in 2012 – No order, even interim order, passed – Foreign court, on the other hand, promptly passing and interim order – First strike principle applies. (Para 63)

       (h) Code of Civil Procedure, 1908 – Section 13 – Order of foreign court only interim or interlocutory asking the wife to be present with the children – Wife could contest the same – Foreign court may well decide in favour of the wife – Wife will not be prejudiced by appearing before foreign court. (Para 66, 67)

       Facts of the case:

       The appellant (Surya) and respondent No.3 (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.

       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.

       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.

       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.

       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.

       Mayura filed a petition for divorce on 23rd August, 2012. An application for the custody of tiled he two daughters was also filed by Mayura but no orders seem to have been passed on that application one way or the other.

       Surya returned to U.K. on or about 6th September, 2012. About a month later, on 16th October, 2012 he received a summons dated 6th October, 2012 from the Family Court in Coimbatore in the divorce petition filed by Mayura requiring him to enter appearance and present his case on 29th October, 2012. The divorce proceedings are still pending

       On 8th November, 2012 he petitioned the High Court of Justice in U.K. for making the children as wards of the court which was allowed.

       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 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.

       The High Court dismissed the writ petition.

       Finding of the Court:

       If an interim or an interlocutory order passed by a foreign court has to be disregarded, there must be some special reason for doing so. The foreign court shall be best suited to decide the issues.

       Result: Appeal disposed of.