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GUJARAT HIGH COURT
S.G. Shah, J.
Swati Abhishek Binaykia —Petitioner
versus
Abhishek Madanlal Binaykia —Respondent
Special Civil Application No.20027 of 2015
Decided on 8.3.2016
(B) Guardian and Wards Act, 1890—Sections 9 and 25—Family Courts Act, 1984—Section 7(1)(g)—Custody of minor child—In matters of custody of a minor child, paramount consideration is welfare of minor and not rights of parents or relatives under a statute which is in force—Father is natural guardian of a minor and it is only in his absence when mother becomes a natural guardian—So far as guardianship of Hindu minor is concerned, father is natural guardian and his custody can never be considered as illegal or otherwise except in a case where minor has not completed age of five years in which case custody should ordinarily be with mother since mother may be in a better position to keep custody and take care of such kid as a minor child—Whereas, controlling condition governing custody of children is welfare of child and not right of parents. (Paras 17, 19 and 20)
(C) Guardian and Wards Act, 1890—Sections 9 and 25—Family Courts Act, 1984—Section 7(1)(g)—Custody of minor child—Territorial jurisdiction of Courts in India—Parties to suit are otherwise residents of United States of America and plaintiff has brought the child to India—Jurisdiction is prescribed for application with respect to guardianship of a person of a minor and not for custody simplicitor—Section 9 would be applicable only when application is for appointment of a guardian of a ward and not for custody simplicitor—Even terminology “ordinarily resides”, is not much material in present case when present suit is not for appointment of a guardian but it is for restraining defendant from disturbing custody of minor from his natural and legal guardian. (Para 24.7)
(D) Guardian and Wards Act, 1890—Sections 9 and 25—Family Courts Act, 1984—Section 7(1)(g)—Custody of minor child—Territorial jurisdiction of Courts in India—Parties to suit are otherwise residents of United States of America and plaintiff has brought the child to India— American Court has not considered the minor as its ward and in absence of evidence and even pleading by defendant– wife who is non-earning, to the effect that how she or American Government is going to take care of welfare of child, custody of child with the father who is certainly well-equipped and legal guardian, cannot be disturbed only because of wish and desire of wife—Principle of Comity of Courts cannot apply stricto senso so as to throw away plaint summarily for want of jurisdiction of Indian Court—Petition dismissed. (Paras 28, 53 and 54)
Result: Review Application allowed.
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
S.G. Shah, J.—The petitioner herein is original defendant; whereas respondent is original plaintiff before the Family Court at Ahmedabad in Family Suit No.1546 of 2015. They are referred in the same capacity herein also.
2. The petitioner – defendant has challenged the order dated 21.10.2015 by the Family Court, Ahmedabad below Exh.5 in such Family Suit No.1546 of 2015. The plaintiff has filed the suit on 28.8.2015 for declaration, permanent injunction and other reliefs under the provisions of Section 7(1)(g) of the Family Courts Act, 1984 read with Sections 9 and 25 of the Guardian and Wards Act, 1890 praying following reliefs in paragraph 35 of the suit:—
(a) The Honourable Court be pleased to declare that the plaintiff, being the natural guardian of the minor Vihaan Binaykia, is entitled to, and has the legal right, power and authority, to retain the custody of the minor Vihaan Binaykia and that the respondent is not entitled to remove minor Vihaan Binaykia from the custody of the plaintiff.
(b) The Honourable Court be pleased to grant a permanent injunction restraining the defendant from interfering with, or removing minor Vihaan Binaykia from the custody of the plaintiff.
(c) The Honourable Court be pleased to grant a mandatory injunction that the defendant do sign the necessary applications/papers/documents for renewal of the passport of minor Vihaan Binaykia and for submitting and processing the application of minor Vihaan Binaykia for acquiring OCI Card (Overseas Citizen of India Card) to the competent authorities.
(d) Such other and further reliefs as may be deemed fit and appropriate be granted.
(e) Costs of the suit be awarded.”
3. In such suit, plaintiff has also preferred an application for interim relief at Exh.5, order below which is under challenge at present, wherein plaintiff has prayed as under:—
(a) During the pendency and final disposal of the family suit, the Honourable Court be pleased to direct the defendant to refrain from interfering with, or removing minor Vihaan Binaykia from, the custody of the plaintiff.
(b) During the pendency and final disposal of the family suit, the Honourable Court be pleased to grant a manadatory injunction that the defendant do sign the necessary applications/papers/documents for renewal of the passport of minor Vihaan Binaykia and for submitting and processing the application of minor Vihaan Binaykia for acquiring OCI Card (Overseas Citizen of India Card) to the competent authorities.
(c) Such other and further reliefs as may be deemed fit and appropriate be granted.
(d) Costs of the suit be awarded.”
4. The chronology of events amongst the parties and dispute between them is very well averred in the pleadings, both before the trial Court as well as before this Court as well as in the synopsis with the petition and therefore, except to recollect necessary information at relevant time, I do not wish to discuss or reproduce all such factual details at present for the simple reason that present petition is against the interim order and main challenge by the defendant – plaintiff is regarding jurisdiction of the Courts of India. Therefore, relevant details would be recalled while discussing the issue of jurisdiction. Similarly, the development from the date of filing the suit i.e. 28.8.2015 till date will be taken care of with the relevant discussion only.
5. The basic grievance of the defendant is pertaining to the territorial jurisdiction of the Courts in India considering the fact that parties to the suit are otherwise residents of United States of America (U.S.A.) and that plaintiff has brought the child to India only in the month of August, 2015, and immediately filed such suit and thereby, it is alleged that this is nothing, but forum shopping to select the jurisdiction of Indian Court and therefore, when parties were residing in U.S.A. for long time and when minor is citizen of U.S.A., it is submitted that the Courts in India should not have exercised thei
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