Back
In the High Court of Bombay at Goa
U.V. BAKRE, J.
Maria Beatriz De Souza Daughter of late Arnaldo de Souza
Versus
Agnelo John Bosco Savio Fernandes Son of late Joao Fernandes
Writ Petition No. 383 of 2012
Decided on: 17-07-2014
CUSTODY OF CHILD - JURISDICTION - DOMICILE - WELFARE OF CHILD - COMITY OF COURTS - FOREIGN JUDGMENT - INTEREST OF MINOR - GUARDIANS AND WARDS ACT, 1890 - PORTUGUESE CIVIL PROCEDURE CODE - DEPORTATION ORDER - WRIT PETITION - ARTICLE 227 OF THE CONSTITUTION OF INDIA - MIXED QUESTION OF LAW AND FACTS - PRELIMINARY OBJECTIONS - INTERIM CUSTODY - ARTICLE 1458 OF THE PORTUGUESE CIVIL PROCEDURE CODE - CAUSE OF ACTION - ARTICLE 5 OF THE PORTUGUESE LAW OF DIVORCE - SOLE PARAGRAPH OF ARTICLE 6 OF THE PORTUGUESE LAW OF DIVORCE - ARTICLE 1452 OF THE PORTUGUESE CIVIL PROCEDURE CODE - ARTICLE 1453 OF THE PORTUGUESE CIVIL PROCEDURE CODE - ARTICLE 1454 OF THE PORTUGUESE CIVIL PROCEDURE CODE - ARTICLE 1455 OF THE PORTUGUESE CIVIL PROCEDURE CODE - ARTICLE 1456 OF THE PORTUGUESE CIVIL PROCEDURE CODE - ARTICLE 1457 OF THE PORTUGUESE CIVIL PROCEDURE CODE - SECTION 9 OF THE GUARDIANS AND WARDS ACT, 1890 - SECTION 13 OF THE CODE OF CIVIL PROCEDURE, 1908 - ORDER 14 RULE 2 OF C.P.C. - ARTICLE 32 OF THE CONSTITUTION OF INDIA - ORDER 39, RULE 2-A OF C.P.C.
Fact of the Case:
The petitioner, an Indian national, and the respondent, a British national, were married in Goa in 2007. They had a daughter, Graca, who was born in Goa in 2008. The couple separated in 2009, and the petitioner filed an application for custody of Graca in the Trial Court in Goa. The respondent raised preliminary objections to the jurisdiction of the Trial Court, arguing that the court lacked jurisdiction because the respondent and Graca were British nationals and the petitioner was a non-resident Indian. The Trial Court dismissed the preliminary objections and held that it had jurisdiction to entertain the application. The respondent appealed the Trial Court's decision to the Appellate Court, which quashed the Trial Court's order and held that the Trial Court lacked jurisdiction. The petitioner filed a writ petition in the High Court of Bombay, challenging the Appellate Court's decision.
Finding of the Court:
The High Court held that the question of jurisdiction of the Trial Court was a mixed question of law and facts that required an elaborate enquiry. The court noted that the petitioner was an Indian national and Graca was born in Goa, and that the marriage of the parties was registered in Goa under the Portuguese law. The court also noted that the respondent had booked return tickets only for himself and Graca to return to the United Kingdom, and that the respondent had filed an application for visitation rights for Graca in the Trial Court. The court held that these factors, among others, indicated that the Trial Court had jurisdiction to entertain the application for custody of Graca. The court also held that the Appellate Court had erred in not considering the paramount consideration of the interest and welfare of Graca. The court quashed the Appellate Court's order and remanded the matter to the Trial Court for a decision on the merits.
Issues: 1. Whether the Trial Court had jurisdiction to entertain the application for custody of Graca. 2. Whether the Appellate Court erred in quashing the Trial Court's order. 3. Whether the paramount consideration of the interest and welfare of Graca was properly considered by the courts below.
Ratio Decidendi: 1. The question of jurisdiction of the Trial Court was a mixed question of law and facts that required an elaborate enquiry. 2. The Appellate Court erred in not considering the paramount consideration of the interest and welfare of Graca. 3. The Trial Court had jurisdiction to entertain the application for custody of Graca.
Final Decision: The High Court quashed the Appellate Court's order and remanded the matter to the Trial Court for a decision on the merits.
Key Points: - The court held that the question of jurisdiction of the Trial Court was a mixed question of law and facts requiring elaborate enquiry (!) . - The Appellate Court erred by not considering the paramount welfare of the child Graca and by not adequately evaluating the mixed questions of domicile, residence, and jurisdiction (!) (!) . - The Trial Court’s jurisdiction and the custody decision must be decided after due enquiry; if found lacking, proceedings must be dismissed or returned to a competent court (!) (!) . - Foreign judgments and comity of courts may be factors but do not override the welfare of the child; the welfare of the minor is the paramount consideration (!) (!) . - Interim custody orders and preservation of custody until final disposal were recognized, pending merits and proper jurisdictional determination (!) (!) . - The Court directed that custody and jurisdiction issues be decided together after due evidence, with the possibility of a detailed enquiry rather than thresh-hold dismissal (!) (!) .
1. Heard Mr. Lobo, learned Counsel appearing on behalf of the petitioner and Mr. Diniz, learned Counsel appearing on behalf of the respondent.
2. By this petition, the petitioner has challenged the Judgment and Order dated 07/04/2012 passed by the learned Principal District Judge, North Goa at Panaji (Appellate Court) in Miscellaneous Civil Appeal No.66 of 2011 and has prayed to quash and set aside the same and to restore the order dated 30/04/2011 passed by the learned Civil Judge, Senior Division at Panaji (Trial Court) in Civil Miscellaneous Application No.80/2009/A.
3. By order dated 13/06/2012, Rule was issued in the matter and it was directed that interim custody of the child which was already with the petitioner would continue to remain with her until the final disposal of the petition.
4. The petitioner and respondent were married in Goa on 08/05/2007 and the marriage was registered before the Civil Registrar of Ilhas under Registration No.424/2007. Out of the said wedding, a female child named Graca Beatriz Fernandes was born on 13th June, 2008 at Vintage Hospital, Panaji-Goa, and the birth of the child has been registered with the Registrar of Births and Deaths, Corporation of the City of Panaji, Goa.
5. The petitioner had filed an application for custody of the said minor child Graca in terms of Article 1458 of the Portuguese Civil Procedure Code, before the Trial Court, which came to be registered as Civil Miscellaneous Application No.80/2009. The respondent had raised preliminary objections to the said application on following grounds:
(a). The Trial Court had no jurisdiction to entertain and dispose of the application since the respondent and the minor daughter were Citizens of England and Wales and the petitioner was a Non Resident Indian, having a permanent residence in United Kingdom (U.K.) and as such the only Courts having jurisdiction were the Courts in the United Kingdom.
(b). The petitioner suppressed and did not disclose in the application material facts that the daughter was a Citizen of England and Wales; that the petitioner was Non Resident Indian and domicile of U.K. having a permanent address at 14 Alexandra Crescent, Bromley, Kent, BR1, 4EU, UK; and that the respondent and the daughter were also permanent residents of U.K. and were domicile of U.K.. On this ground also the application was not maintainable for lack of jurisdiction of the Trial Court.
(c) The respondent was gainfully employed in London; the daughter was a Citizen of England and Wales; the petitioner had applied for and obtained a National Insurance Number, to take employment in U.K., and the petitioner had come to London to settle permanently and had given three month's mandatory notice to the ex-employer in Goa, India, and applied for 2 years leave because she could not resign in the mid-term and as such had come to London. On these grounds also, it was only the Court in U.K. that had jurisdiction in the case.
(d). The petitioner arrived in London after marriage on or about 30/12/2007, left London for delivery to Goa on 30th March, 2008 and returned back to U.K. on 2nd September, 2008, and all along resided permanently at the petitioner's permanent residence in U.K. till 20/10/2009. The respondent, petitioner and the daughter traveled together to India because the petitioner's mother was said to be seriously ill. The petitioner renewed her visa on 27/07/2009 for further period of 2 years with the intention to return back, and the daughter had a return ticket to go back along with the Respondent on 31st October, 2009. On this ground also, the Trial Court had no jurisdiction to entertain the application and only the Court in U.K. had jurisdiction in the facts of the case.
6. The petitioner filed her reply to the preliminary objections raised by the respondent. She claimed that the objections were not tenable in law. According to her, she and the respondent were married in Goa under the Portuguese law and the minor child was
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
