Hc Rules Divorce Under Hindu Act, If Married Under Hindu Act, Even if No Longer Citizens

8/11/2019 Hc Rules Divorce Under Hindu Act, If Married Under Hindu Act, Even if No Longer Citizens.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 164 OF 2013WITH

CAM NO. 11 OF 2014WITH

CAM NO. 241 OF 2013WITH

CAM NO. 142 OF 2014

Dr. Madhusudan alias Amod Dalvi ]Residing at 42, Mill Court, Ashford, ]Kent TN 248 DN, K, ]And also at !"#, Mar$h%ood ]Cres$ent, &aling, '(2D), K ]And also residing at C*o ]Dr. Mangesh Dalvi, !2+, #*", ]-unglee Mahara Road, /une 4!!++4 ]..A00ellant*

1ri. Res0ondent]

3s.

Dr. Ralami 'alaval5ar ]/resentl6 residing at !4+!, &*! ]76de /ar5 Residen$6, hod9under ]Road, Thane : 4++ !+ ]..Res0ondent*

1ri. /etitioner]

;.

Mr /ra9hait -auhar along %ith Mrs. Mrunalini Deshmu5h andMr. Atman Mehta i*9 7aresh Mehta and Co. Advo$ate for theA00ellantMr. ue Na$han and Rashda Aina0ure i*9 -udi$are ?a%Asso$iates Advo$ate for the Res0ondent

....

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CORAM : SMT.V..TAHILRAMANI AND SHRI. V.L.ACHLIYA! JJ.

RESERVED ON : MAY 02! 2014PRONOUNCED ON : JULY 2"! 2014

JUDGMENT: #PER SMT. V..TAHILRAMANI! J.$

! This a00eal is dire$ted against the orders dated

2.!.!" and !@[email protected]+!" 0assed 96 the amil6 Court, #andra,

Mum9ai in /etition No. AB! of 2+!". /etition No. AB! of 2+!"

%as filed 96 res0ondent %ife for divor$e and for $ustod6 of

minor daughter Mihi5a. #6 order dated 2.!.2+!" the amil6

Court as a sto0 ga0 arrangement, de$lared that the mother is

the legal guardian and $ustodian of minor girl Mihi5a. The said

order %as 0assed 9elo% nterim A00li$ation No. 2 of 2+!" E&h.

F in /etition No. AB! of 2+!". #6 order dated !@[email protected]+!" the

amil6 Court ree$ted the A00li$ation No. (+ of 2+!" E&h. !8F

0referred 96 the 0resent a00ellant for setting

aside*modifi$ation of the order dated 2.!.2+!" 0assed 96 the

amil6 Court granting interim de$laration >ua the minor girl

Mihi5a in favour of the 0etitionerB%ife and for return of 0etition

for a00ointment of uardian of the minor girl for %ant of

urisdi$tion of the amil6 Court, Mum9ai. The 0ra6ers made in

the said A00li$ation No. (+ of 2+!" are as underG

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HEaF modif6*set aside the order dated 2.!.!"

granting interim de$laration to the effe$t that the

0etitioner mother is legal guardian and $ustodian of

the minor daughter Mihi5aI

E9F ree$t the 0etition filed under =e$tion @EgF

of the amil6 Courts A$t, !84 to the effe$t that the

0etitioner 9e de$lared the sole guardian and

$ustodian of the minor daughter Mihi5a for %ant of

urisdi$tion of this 7onoura9le CourtI

E $ F 0ass su$h other order or orders as this

7onJ9le Court ma6 deem fit and 0ro0er in the fa$ts

and $ir$umstan$es of the $aseI

2 A fe% fa$ts %ould 9e ne$essar6 to a00re$iate the

$ontrovers6 involvedG

EiF t is an admitted fa$t that 9oth the a00ellant and the

res0ondent are 7indus. riginall6 9oth of them %ere ndian

$itiLens. #oth of them got married in Mum9ai on [email protected]++ as

0er 7indu 3edi$ rites. Thereafter, 9oth of them %ent to nited

Kingdom E.K.F. The a00ellantBhus9and a$>uired .K.

CitiLenshi0 in 2++ and the res0ondentB%ife a$>uired .K.

CitiLenshi0 on 24.(.2+!!. Daughter Mihi5a %as 9orn in .K. on

([email protected]+!+. =he is also a #ritish $itiLen. #oth the a00ellant

res0ondent are residing se0aratel6 sin$e =e0tem9er, 2+!!.

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Thereafter, the res0ondentB%ife $ame to ndia on !.!2.2+!2

along %ith her daughter Mihi5a %ho %as then 2 6ears and five

months old. n $oming to ndia, she filed 0etition No. AB! of

2+!" see5ing divor$e mainl6 on the ground of $ruelt6. n the

said 0etition, she also 0ra6ed that she ma6 9e de$lared under

=e$tion 2 of the 7indu Marriage A$t to 9e the sole guardian

and $ustodian of the minor $hild. /ending the 0ro$eedings, the

res0ondent had 0ra6ed that she 9e de$lared sole guardian and

$ustodian of the minor $hild Mihi5a. Thereafter, the

res0ondent moved nterim A00li$ation No.2 of 2+!" E&h. F.

The 0ra6er in nterim A00li$ation No. 2 of 2+!" %as that

0ending the 0ro$eedings in /etition No. AB! of 2+!", the

res0ondent 9e de$lared legal guardian and $ustodian of minor

daughter Mihi5a. nterim A00li$ation No. 2 of 2+!" $ame to 9e

allo%ed 96 order dated 2.!.2+!". #6 order dated !@[email protected]+!"

the amil6 Court ree$ted the A00li$ation No. (+ of 2+!" E&h.

!8F 0referred 96 the 0resent a00ellant for setting

aside*modifi$ation of the order dated 2.!.2+!" 0assed 96 the

amil6 Court granting interim de$laration >ua the minor girl

Mihi5a in favour of the 0etitionerB%ife and for return of 0etition

for a00ointment of guardian of the minor girl for %ant of

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urisdi$tion of the amil6 Court, Mum9ai. #oth these orders

have 9een $hallenged in the 0resent a00eal.

EiiF The $laim of the a00ellant is that 9oth the 0arties

have set u0 their matrimonial home in .K. The 0arties %or5ed

for gain in .K. and the minor $hild %as 9orn in .K. The

hus9and and %ife as %ell as $hild are $itiLens of .K. and

holding #ritish 0ass0orts. 7e 0ointed out that three orders

%ere 0assed 96 the Courts in .K. and the $ourt in .K. had

de$lared the $hild as %ard of the Court, hen$e, the res0ondent

has to su9mit to the orders of the Court in .K. and return the

$hild to the urisdi$tion of Courts in .K.

" #6 the first order dated .!.2+!" the .K. Court

ordered as underG

H!F The $hild M7KA DA?3 EDAT& #RT7 (th

-ul6, 2+!+F shall 9e made a %ard of this 7onJ9le Court

throughout her minorit6 or until further orderI

2F The res0ondent mother must $ause the

immediate return of M7KA DA?3 ED# (th -ul6,

2+!+F to the urisdi$tion of &ngland and 'ales and in

an6 event no later than !(th-anuar6, 2+!"I

"F The matter shall 9e further listed 9efore

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7igh Court -udge of the amil6 Division, sitting at the

Ro6al Courts of -usti$e, =trand, ?ondon 'C2A 2??, on

Thursda6, !@th -anuar6, 2+!". ETime estimate "+

minutes at Ris5, in $onsultation %ith the $ler5 of the

RulesFI

4F The res0ondent mother must attend the

hearing on !@th-anuar6, 2+!", and 9e re0resented 96

soli$itors and $ounsel if so instru$tedI

(F A 0enal noti$e shall 9e atta$hed to

0aragra0h 2 and 4 a9oveI

F There 9e 0ermission to the A00li$antJs

soli$itors to serve these 0ro$eedings outside the

urisdi$tion of &ngland and 'ales and 0ermission to

serve the Res0ondent mother 96 eBmail on

r0%alaval5ar6ahoo.$om or 96 fa$simile.

@F There 9e li9ert6 to the Res0ondent mother

to a00l6 to the Court to var6 or dis$harge an6 0art of

this rder u0on short noti$e to the Court and to the

A00li$antJs soli$itors.

8F Costs reserved.

Dated thda6 of -anuar6, 2+!".

4 The se$ond order 0assed 96 the .K. Court reads as

underG

H!. The $hild M7KA DA?3 ED# (th-ul6, 2+!+F

shall remain a %ard of this 7onoura9le Court

throughout her minorit6 or until further rderI

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2. The Res0ondent mother must $ause the

immediate return of M7KA DA?3 ED# (th-ul6 2+!+F

to the urisdi$tion of &ngland and 'alesI

". The matter shall 9e further listed 9efore

7igh Court -udge of the amil6 Division, sitting at the

Ro6al Courts of -usti$e, =trand, ?ondon 'C2A 2??, on

rida6 !ste9ruar6, 2+!". Etime estimate "+ minutes

at Ris5, in $onsultation and su9e$t to $onformation

%ith the $ler5 of the rulesFI

4. The Res0ondent mother must attend the

hearing on !ste9ruar6, 2+!", and 9e re0resented 96

soli$itors and Counsel if so instru$tedI

(. A 0enal noti$e shall 9e atta$hed to

0aragra0h 2 and 4 a9ove.

. There 9e 0ermission to the A00li$antJs





@. The A00li$antJs soli$itors shall serve of this

order on the ffi$e of the 7ead of nternational amil6

-usti$e.

8. Costs ReservedI

Dated this !@thDa6 of -anuar6, 2+!".

( The third order 0assed 96 the .K. Court reads as

underG

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H!F The $hild M7KA DA?3 ED# (th-ul6, 2+!+F

shall remain a %ard of this 7onoura9le Court

throughout her minorit6 or until further rderI

2F The Res0ondent mother must $ause the

immediate return of M7KA DA?3 ED# (th-ul6 2+!+F

to the urisdi$tion of &ngland and 'alesI

"F The hearing listed on !st e9ruar6 shall 9e

va$ated %ith li9ert6 to either 0art6 to a00l6 at short

noti$e for further dire$tions.

4F There 9e 0ermission to the A00li$antJs





(F The A00li$antJs soli$itors shall serve of this

order on the ffi$e of the 7ead of nternational amil6

-usti$e.

F Costs ReservedI

Dated this 4the9ruar6, 2+!".

Mr. -auhar, the learned $ounsel for the a00ellant

su9mitted that in vie% of the dire$tions 0assed 96 the Court in

&ngland, the $hild has to 9e returned to the urisdi$tion of the

Courts in K. 7e also 0ointed out that this 0lea is

0redominantl6 on the 0rin$i0le of $omit6 of Courts as in

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matters relating to matrimon6 and $ustod6, the la% of that

0la$e %hi$h has $losest $onne$tion %ith the %ell 9eing of the

s0ouses and the %elfare of the offs0ring of marriage must

govern the dis0ute. Mr. -auhar 0ointed out that 0arties %or5ed

for gain in K and the $hild %as 9orn in K. The $hild as %ell

as 0arents are holding #ritish 0ass0orts. n su$h situation, the

Courts in K %ill 9est serve the ends of usti$e.

@ Mr. -auhar further 0ointed out that under the

0rovisions of The uardianshi0 and 'ards A$t, !8+ an

a00li$ation %hether in res0e$t of guardianshi0 of a 0erson or

minor, is to 9e filed in the Court under %hose territorial

urisdi$tion the minor ordinaril6 resides. 7e su9mitted that as

the minor %as ordinaril6 resident of .K., the amil6 Court in

Mum9ai %ould have no urisdi$tion. 7e 0la$ed relian$e on the

de$ision of the Karnata5a 7igh Court in the $ase of A%&'(') G.

'&*)+','- ', /(& V. N*- AIR 2004 '&,''' 321!

%herein it %as held that H n order to give urisdi$tion for the

0ur0ose of a00ointment of guardian, the minor must ordinaril6

9e resident %ithin the lo$al limits of the CourtJs urisdi$tion. f

the minor does not ordinaril6 reside %ithin the territorial

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urisdi$tion of the Distri$t Court $on$erned, su$h Distri$t Court

%ill not have urisdi$tion to 0ro$eed under the A$t. n going

through the said de$ision, it is noti$ed that it is under

uardianshi0 and 'ards A$t and the referen$e therein is to

=e$tion of the uardianshi0 and 'ards A$t %hi$h la6s do%n

%hi$h Courts have urisdi$tion to entertain an a00li$ation under

the uardianshi0 and 'ards A$t. =e$tion deals %ith this

as0e$t and =e$tion la6s do%n that su$h a00li$ation shall 9e

made to the Distri$t Court having urisdi$tion in the 0la$e

%here the minor ordinaril6 resides. This de$ision $annot 9e

made a00li$a9le in the fa$ts of the 0resent $ase 9e$ause the

0etition filed 96 the res0ondentB%ife is not under the

uardianshi0 and 'ards A$t. 7er main 0etition is under the

7indu Marriage A$t and the title of the 0etition sho%s that it is

also under =e$tion 2 of the 7indu Marriage A$t %hi$h deals

%ith the $ustod6 of $hildren. 7en$e, the de$ision in the $ase of

Karim0anal Esu0raF $annot 9e said to 9e a00li$a9le to the fa$ts

of the 0resent $ase on the 0oint of territorial urisdi$tion. -ust

as in the $ase of Karim0anal Esu0raF, it %as similarl6 held under

the uardianshi0 and 'ards A$t in the $ase of P'5- M'(*,&

G'(5, V. S-*,' G'(5,2006 #$ AD #D-(*$ 467 :2006 #130$

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DLT 724! so also other de$isions relied on 96 Mr. -auhar in D&.

G-/8',,* M'&9/ M55 ', 9.AIR 1"3 B/) 242 : #1"3$

"7 B/) LR 106: 1"3 M'(. LJ 60;! A)&5 P'- S*, NCT /> D-(* ', A,&. 2013 #137$ DRJ 73; ',

M55, S?'&5+ V. M',*(' J'*, 200#100$ DRJ 36! are

under the uardianshi0 and 'ards A$t, hen$e, the6 are not

a00li$a9le to the 0resent $ase.

8. Thereafter the learned $ounsel for the a00ellant relied

u0on the de$ision of the Delhi 7igh Court in the $ase of A8*&'-

M*'- V. S'I 200 #163$ DLT 62;,in %hi$h it %as held as

underG

Hn$e the 7igh Court of -usti$e E.K.F has dire$ted

that the $hild 9e 0rodu$ed, in our $onsidered vie%,

the retention of the $hild in ndia %ould 9e unla%ful

though it ma6 not have 9een illegal at the in$e0tion.

Mr. -auhar 0ointed out that the said de$ision %as

$arried 96 the %ife to the =u0reme Court and the =u0reme

Court dismissed the 0etition. The said de$ision is rendered in

S(*-+' A


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SCC 71. 7e has 0la$ed relian$e on this de$ision as %ell as

another de$ision of the =u0reme Court in the $ase of D&. V.

R'8* C(',&', V. U,*/, /> I,*' ', /(& #2010$ 1 SCC

1;4. 'e have 0erused the said de$isions. n these de$isions,

no dou9t the 0arties %ere domi$iled outside ndia. n the $ase

of S(*-+' A


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7igh Court in Aviral Mittal Esu0raF. ne im0ortant differen$e in

the de$isions relied on and the 0resent $ase is that in the

0resent $ase first the amil6 Court here in Mum9ai has 0assed

an order in relation to $ustod6 of the $hild on 2.!.2+!" and

thereafter the hus9and on re$eiving intimation a9out this fa$t,

filed an a00li$ation 9efore the Court in K in relation to the

$hild. Thereafter, the Courts in .K. 0assed its order, the first

order of the .K. Court is dated +.+!.2+!". =ame is also not

the situation in the $ase of 3. Ravi Chandran Esu0raF. n the

$ase of Ravi Chandran, the Court in =A had 0assed the first

order in relation to $ustod6 of the $hild. The fa$ts in 3. Ravi

Chandranare that the $hild %as 9orn in =A. The 0arents %ere

domi$iled in =A. n the said $ase, the %ife had a00roa$hed

the Ne%


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%hi$h, 96 $onsent, the follo%ing order $ame to 9e 0assedG

Hrdered, the 0arties shall share oint legal and

0h6si$al $ustod6 of the minor $hild and it is further

ordered that $ommen$ing during August 2++@,

Adith6a shall reside in Allen Teas. H

7o%ever, thereafter on 28..2++@ the res0ondent

%ife 9rought the $hild to ndia. n 8.8.2++@ the 0etitioner

filed a 0etition for modifi$ation E$ustod6F and 3iolation /etition

No. E$ustod6F 9efore the amil6 Court of the =tate of Ne% uestion

%hi$h arose 9efore the =u0reme Court is refle$ted in 0aragra0h

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%hi$h reads thusGB

On the 9a$5dro0 of the aforenoti$ed fa$ts, %e have to

$onsiderBB no% sin$e the $hild has 9een 0rodu$edB

%hat should 9e the a00ro0riate order in the fa$ts and

$ir$umstan$es 5ee0ing in mind the interest of the

$hild and the orders of the Court of the $ountr6 of

%hi$h the $hild is a national.O

!+. n 3. Ravi Chandran Esu0raF, the de$ision is rendered

in the $ase of a ha9eas $or0us 0etition. This de$ision sets out

the $ourse to 9e follo%ed %hen the $hild is removed from one

$ountr6 to another in $ontravention of the orders 0assed 96

the Court in the first $ountr6.

!!. n 3. Ravi$handran Esu0raF, it %as o9served that the

first order in relation to the $ustod6 of the $hild %as 0assed 96

the = Court, hen$e, the res0ondent %as dire$ted to a$t as 0er

the $onsent order dated !8..2++@ 0assed 96 the Court in Ne%


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Chandran. The first is the interest of the $hild and se$ond is

that the Court in =A had 0assed orders in relation to $ustod6

of $hild 0rior to the mother 9ringing minor $hild to ndia. As

stated 96 us earlier, in the 0resent $ase, there is no order of

the K Court 0rior to the mother 9ringing the $hild to ndia.

7en$e, the onl6 as0e$t %hi$h %ould have to 9e ta5en into

$onsideration in the 0resent $ase in vie% of the o9servations

in the $ase of V. R'8* C(',&',, is the interest of the $hild.

!2. Mr. -auhar then relied on 0ara !8 of Aviral Mittal

Esu0raF %herein it %as o9served 96 the Delhi 7igh Court as

underG

OThe urisdi$tion of a $om0etent Court $annot 9e

ousted in this manner 96 $ontinuing to a9stain from

those 0ro$eedings and the 0rin$i0le of Comit6 of

Courts, in our $onsidered vie%, re>uires the

res0ondent and the $hild to oin 0ro$eedings in K.O

7o%ever, it is to 9e noted that these o9servations

%ere made in vie% of the fa$t that the Court in .K. had first

0assed an order in relation to the $ustod6 of the $hild. That is

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the .K. CourtJs order %as first in 0oint of time and thereafter

the other 0art6 sought order from the Court in ndia. 'hat is

most im0ortant to note is that in A8*&'- M*'- #5+&'$! it %as

finall6 $on$luded that On$e the .K. 7igh Court of -usti$e

dire$ted that the $hild 9e 0rodu$ed, in our $onsidered vie%, the

retention of the $hild in ndia %ould 9e unla%ful.O 'hat

%eighed on the mind of the Court in the $ase of A8*&'- M*'-

is that the 7igh Court of -usti$e in K had first in 0oint of time

issued dire$tions that the $hild 9e 0rodu$ed 9efore it. Thus,

this is %hat %eighed on the mind of the Court %hile 0assing the

order in the $ase of A8*&'- M*'-. 7o%ever, this main $riteria

that Pas the 7igh Court of -usti$e EKF has dire$ted that the

$hild 9e 0rodu$ed, in our $onsidered vie%, the retention of the

$hild in ndia %ould 9e unla%fulJ, %ould not 9e attra$ted in the

fa$ts of the 0resent $ase 9e$ause here the Court in ndia had

first 0assed the order in relation to the $ustod6 of the $hild and

thereafter, the Court in .K. 0assed its order.

!". n the $ase of S(*-+' A


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agreed %ith the o9servations of the Delhi 7igh Court that due

res0e$t has to 9e given to the orders of the K Court. This

o9servation %as made 9e$ause, in that $ase, the K Court has

first 0assed orders in relation to the $ustod6 of the $hild. This

9e$omes $lear from 0aragra0h "2 of the udgment %herein it is

o9served that HAlthough, on first im0ression, it %ould a00ear

that the interest of minor $hild %ould 9e 9est served if she is

allo%ed to remain %ith the a00ellant, %e $annot lose sight of

the order dated 2.!!.2++8 0assed 96 the 7igh Court of

-usti$e, amil6 Division, K %hi$h ordered that minor &lina shall

remain a %ard of the K during her minorit6 till further orders.

!4. n 0aragra0h "4 in the $ase of S(*-+' A


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S(*-+' A


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the ha9eas $or0us 0etitions %ere 0referred 9efore the Courts in

ndia that the Delhi 7igh Court and the =u0reme Court held

that the $hild has to 9e returned 9a$5 to K or = as the $ase

ma6 9e.

!. Time and again in matters relating to the $ustod6 of

$hild, the =u0reme Court as %ell as other 7igh Courts have

held that the most im0ortant thing %hi$h is to 9e ta5en into

$onsideration is the interest and %elfare of the $hild. n the

ver6 de$isions on %hi$h relian$e %as 0la$ed 96 the learned

$ounsel for the a00ellant i.e. in the $ase of V. R'8* C(',&',

#S5+&'$A8*&'- M*'- #5+&'$ @ S(*-+' A


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#elgium. #ut the udgment %as reversed and it %as held that

the father 9e$ame entitled to $ustod6 of the $hild 96 $ommon

la% of #elgium. The mother too5 the $hild to &ngland. The

father then 9egan divor$e 0ro$eedings in #elgium and the

Court a00ointed him as guardian of the $hild. The Court

ordered the mother to return the $hild %ithin 24 hours,

ho%ever, she did not return the $hild. The father moved the

Court in &ngland for $ustod6 of the infant. The matter $ame u0

9efore Morton, -., %ho after hearing the 0arties, o9served thusG

HAt the moment m6 feeling is ver6 strong that even

assuming in the fatherJs favour that there is nothing

in his $hara$ter or ha9its %hi$h %ould render him

unfitted to have the $ustod6 of the $hild, the %elfare

of the $hild re>uires, in all the $ir$umstan$es as the6

eist, that he should remain in &ngland for the time

9eing....

n the 0resent $ase, the 0osition is that

nearl6 t%o 6ears ago, %hen the $hild %as alread6 in

&ngland, an interlo$utor6 order %as made 96 the

Divor$e Court in #elgium giving the $ustod6 of the

$hild to the father. do not 5no% ho% far, if at all, the

matter %as $onsidered on the footing of %hat %as

9est for the $hild at that time, or %hether it %as

regarded as a matter of $ourse that the father, 9eing

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the guardian 96 the $ommon la% of #elgium and the

a00li$ant in the divor$e 0ro$eedings and the onl6

0arent in #elgium, should 9e given the $ustod6.

$annot regard that order as rendering it in an6 %a6

im0ro0er or $ontrar6 to the $omit6 of nations if no%

$onsider, %hen the 9o6 has 9een in this $ountr6 for

nearl6 t%o 6ears, %hat is in the 9est interest of the

9o6. do not thin5 it %ould 9e right for the Court,

eer$ising its urisdi$tion over a %ard %ho is in this

$ountr6, although he is a #elgian national, 9lindl6 to

follo% the order made in #elgium on (.!+.!"@........

ought to give due %eight to an6 vie%s

formed 96 the $ourts of the $ountr6 %hereof the

infant is a national. B5 I *& / ' 5*

+-'*,- (' *, ) 8*? (* C/5& * %/5, *,

8& 9'! ?*(/5 =9+*/,! / &' (

?->'& /> * ?'& ' %*,< ( >*& ',

+'&')/5, 9/,*&'*/,! ?('8& /&& )'

('8 %, )' % ( 9/5& /> ', /(&

9/5,&.

E&m0hasis su00liedF

!8. n R'8* C(',&', #5+&'$ the =u0reme Court also

$onsidered the de$ision of the /riv6 Coun$il in M9 V.

M9! 171 AC 372: #171$ 1 ALL ER 42 #PC$. nM9 V.

M9 #5+&'$! the 0arties %ere Ameri$an CitiLens and the

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Court in .=.A. granted $ustod6 to the mother. The father too5

the $hild to Canada %ithout $onsent of the mother. The matter

eventuall6 $ame u0 9efore the /riv6 Coun$il and on A00eal

from the =u0reme Court of Canada at the instan$e of the

father, the /riv6 Coun$il held as follo%sG

H or, after reaffirming Pthe %ell esta9lished general

rule that in all >uestions relating to the $ustod6 of an

infant the 0aramount $onsideration is the %elfare of

the infantJ, he o9served that no $ase had 9een

referred to %hi$h esta9lished the 0ro0osition that,

%here the fa$ts %ere su$h as he found them to eist

in the $ase, the salient features of %hi$h have 9een

stated, a 0arent 96 the sim0le e0edient of ta5ing the

$hild %ith him a$ross the 9order into ntario for the

sole 0ur0ose of avoiding o9edien$e to the udgment

of the $ourt, %hose urisdi$tion he himself, invo5ed,

9e$omes Jentitled as of right to have the %hole

>uestion retried in our $ourts and to have them rea$h

a ne% and inde0endent udgment as to %hat is 9est

for the infantJ. And it is, in effe$t, 9e$ause he held

that the father had no su$h right that the -udge

allo%ed the a00eal of the mother, and that the

=u0reme Court made the order alread6 referred to.

#ut, %ith great res0e$t to the -udge, this

%as not the >uestion %hi$h had to 9e determined. t

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is 0ossi9le that a $ase might arise in %hi$h it

a00eared to a $ourt, 9efore %hi$h the >uestion of

$ustod6 of an infant $ame, that it %as in the 9est

interest of that infant that it should not loo5 9e6ond

the $ir$umstan$es in %hi$h its urisdi$tion %as

invo5ed and for that reason give effe$t to the foreign

udgment %ithout further in>uir6. #ut it is in the

negation of the 0ro0osition, from %hi$h ever6

udgment in this $ase has 0ro$eeded, namel6, that

the infantJs %elfare is the 0aramount $onsideration,

to sa6 that %here the trial -udge has in his dis$retion

thought fit not to ta5e the drasti$ $ourse a9ove

indi$ated, 9ut to eamine all the $ir$umstan$es and

form an inde0endent udgment, his de$ision ought for

that reason to 9e overruled. n$e it is $on$eded that

the Court of ntario had urisdi$tion to entertain the

>uestion of $ustod6 and that it need not 9lindl6 follo%

an order made 96 a foreign $ourt, the $onse>uen$e

$annot 9e es$a0ed that it must form an inde0endent

udgment on the >uestion, though in doing so it %ill

give 0ro0er %eight to the foreign udgment. 'hat is

the 0ro0er %eight %ill de0end on the $ir$umstan$es

of ea$h $ase.

!. rom 0aragra0h 2 of V. R'8* C(',&', #5+&'$, it is

$lear that the Court %as dealing %ith a $ase %here the $hild

%as removed in $ontravention of the orders of the Court %here

the 0arties had set u0 their matrimonial home. The =u0reme

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Court o9served that in su$h $ases, %hat are the fa$ts to 9e

ta5en into $onsideration. n 0aragra0h 2, it %as thus

o9servedG

O 'hile dealing %ith a $ase of $ustod6 of a $hild

removed 96 a 0arent from one $ountr6 to another Pin

$ontravention of the orders of the CourtJ %here the

0arties had set u0 their matrimonial home, the $ourt

in the $ountr6 to %hi$h the $hild has 9een removed

must first $onsider the >uestion %hether the $ourt

$ould $ondu$t an ela9orate en>uir6 on the >uestion of

$ustod6 or 96 dealing %ith the matter summaril6

order a 0arent to return $ustod6 of the $hild to the

$ountr6 from %hi$h the $hild %as removed and all

as0e$ts relating to the $hildJs %elfare 9e investigated

in a $ourt in his o%n $ountr6. =hould the $ourt ta5e a

vie% that an ela9orate en>uir6 is ne$essar6,

o9viousl6 the $ourt is 9ound to $onsider the H%elfare

and ha00iness of the $hild as the 0aramount

$onsideration and go into all relevant as0e$ts of

%elfare of the $hild in$luding sta9ilit6 and se$urit6,

loving and understanding $are and guidan$e and full

develo0ment of the $hildJs $hara$ter, 0ersonalit6 and

talents. 'hile doing so, the order of a foreign $ourt

as to his $ustod6 ma6 9e given due %eightageI the

%eight and 0ersuasive effe$t of a foreign udgment

must de0end on the $ir$umstan$es of ea$h $ase.

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2+. n V. R'8* C(',&',#5+&'$, a referen$e is made to

the de$ision n &,/ V. &,/ 167 C( 21; : #164$ 3 WLR

1210: #164$ 3 A-- ER 33! in %hi$h the fa$ts %ere thusG The

0laintiff mother, an talian lad6, married an &nglish man in tal6

%here 9oth %ere residing. A 9o6 %as 9orn there on 2.".!2.

n !.!+.!" the6 o9tained in talian $ourt a se0aration order

96 $onsent 0roviding therein that $ustod6 of the $hild %ould

remain %ith the father, %ith rights of a$$ess to the mother. n

2.!+.!", the father 9rought the infant to &ngland %ith

intention to ma5e &ngland as his home. The mother

$ommen$ed %ardshi0 0ro$eedings in %hi$h she 9rought a

motion for an order that the father should return the infant to

her in tal6. =he also 0ra6ed for restraint order against him

from ta5ing the infant out of her $are. #u$5le6, -. in these

fa$ts, held thusG

H=o that even %here a foreign $ourt has made anorder on the meritsB %hi$h is not the 0resent $ase,

9e$ause the onl6 order %hi$h has 9een made %as a

$onsent order %ithout an6 investigation of the merits

96 the talian Court : the domesti$ $ourt 9efore %hom

the matter $omes Ethe ntario Court in the $ase to

%hi$h have ust referred, or this Court in the $ase

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9efore meF is 9ound to $onsider %hat is in the 9est

interests of the infantI and although the order of the

foreign $ourt %ill 9e attended to as one of the

$ir$umstan$es to 9e ta5en into a$$ount it is not

$on$lusive one %a6 or the other. 7o% mu$h stronger

must the dut6 of this Court 9e to entertain the $ase

%here the foreign $ourt has not made an6 order

9ased on an6 investigation of the $ase on its merits.

Thus, in &,/ V. &,/ #5+&'$, it %as held that

Hthe 9est interest of the $hild is the 0aramount $onsideration

and the order of the foreign $ourt, is not $on$lusive. t is

0ertinent to note that the =u0reme Court in Ravi Chandran

Esu0raF, has not held that the vie% in #Js =ettlement in re #.3.

#Q, Kernot or M$Kee is the %rong vie%.

2!. 'e ma6 0oint out in the $ase of A8*&'- M*'- #5+&'$

%hi$h %as relied u0on 96 the learned $ounsel for the a00ellant,

in 0aragra0h ! it is o9served that O%e are $ons$ious of the

fa$t that in vie% of the o9servations made 96 the =u0reme

Court and udgment referred to aforesaid, it is the interest of

the $hild %hi$h is 0aramount. nterest of $hild al%a6s is to

have the 9enefit of $om0an6 of 9oth the 0arents, ho%ever,

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su$h an ideal situation is not 0ossi9le, the >uestion %ould arise

as to %hi$h of the 0arents is in a 9etter 0osition to loo5 after

the $hild.O t is to 9e noted that in the $ase of S'&*' S('&)'

V. S5(*- S('&)' #2000$ 3 SCC 14!and in the $ase of P'5-

M/(*,& G'(5, #5+&'$! it %as held 96 the =u0reme Court

that normall6 a $hild ma6 9e 9etter ta5en $are of 96 the

mother. n the 0resent $ase, the $ustod6 of the $hild is %ith

the mother.

22. n the $ase of A8*&'- M*'- #5+&'$, a referen$e %as

made in 0ara !+ to the de$ision of the =u0reme Court in the

$ase of S'&*' S('&)' V. S5(*- S('&)' #5+&'$. n the said

matter, the mother had removed the $hild from =A des0ite

the order of the Court of that $ountr6. t %as o9served 96 the

=u0reme Court that a female $hild should ordinaril6 9e allo%ed

to remain %ith the mother so that she $an 9e 0ro0erl6 loo5ed

after and in the given fa$ts of that $ase 0ro0er $are %as 9eing

given to the $hild in ndia and thus in s0ite of the order 0assed

96 the Court in =A, it %as held that it %ould not 9e 0ro0er to

hand over the $ustod6 of the $hildren to the res0ondent and

0ermit him to ta5e the $hildren to =A.

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2". n the $ase of S'&*' S('&)' #5+&'$! first the

Ameri$an Court had 0assed the order regarding $ustod6 of the

$hild, then the mother moved the $hild from =A to ndia. n

S'&*' S('&)' #5+&'$, it is o9served 96 the =u0reme Court

that the mother had removed the $hildren from =A des0ite

the order of the Ameri$an Court, 6et in the said $ase, it %as

o9served as underG

H/ara . Therefore, it %ill not 9e 0ro0er to 9e guided

entirel6 96 the fa$t that the a00ellant =arita had

removed the $hildren from =A des0ite the order of

the $ourt of that $ountr6. =o also, in vie% of the fa$ts

and $ir$umstan$es of the $ase, the de$ree 0assed 96the Ameri$an $ourt though a relevant fa$tor, $annot

override the $onsideration of %elfare of the minor

$hildren. 'e have alread6 stated earlier that in =A

res0ondent =ushil is sta6ing along %ith his mother

aged a9out 8+ 6ears. There is no one else in the

famil6. ;.... Though it is true that 9oth the $hildren

have Ameri$an $itiLenshi0 and there is 0ossi9ilit6 that

in =A the6 ma6 9e a9le to get 9etter edu$ation, it is

dou9tful if the res0ondent %ill 9e in a 0osition to ta5e

0ro0er $are of the $hildren %hen the6 %ere so 6oung.

ut of them, one is a female $hild, %ho is aged a9out

( 6ears ordinaril6 female $hild should 9e allo%ed to

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remain %ith the mother so that she $an 9e 0ro0erl6

loo5ed after.

24. n S'&*' S('&)' #5+&'$, it is further o9served that

H$onsidering all as0e$ts relating to the H%elfare of the

$hildren, %e are of the o0inion that in s0ite of the order 0assed

96 the Court =A it %as not 0ro0er for the 7igh Court to have

allo%ed the ha9eas $or0us %rit 0etition and dire$ted the

a00ellant to hand over the $ustod6 of the $hildren to the

res0ondentBhus9and and 0ermit him to ta5e them to =A.

'hat %ould 9e in the interest of $hildren, re>uires a full and

thorough in>uir6 and therefore, the 7igh Court should have

dire$ted the res0ondent to initiate the a00ro0riate 0ro$eedings

in %hi$h su$h in>uir6 $an 9e held.

2(. Thus, the =u0reme Court o9served that the de$ree

0assed 96 the foreign Court $annot override $onsideration of

%elfare of the minor. rom the fa$ts of S'&*' S('&)' #5+&'$!

it is $lear that the =u0reme Court %as dealing %ith a $ase

%here the $hild %as removed in $ontravention of the orders of

the Court %here the matrimonial home %as. Des0ite that the

=u0reme Court held that 0aramount $onsideration is the

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%elfare of the $hild. n the 0resent $ase, there is no

$ontravention of an6 order of an6 Court in K as the Court here

in ndia had first 0assed the order in relation to $ustod6 of the

$hild in favour of the res0ondent.

2. 'e ma6 ma5e useful referen$e to the $ase of

D(',?',* J/(* V. M'('8 U, #1"$ 1 SCC 112! in

%hi$h the effe$t of international norms regarding a00li$a9ilit6

of de$isions of = $ourts on ndian $ourts %as $onsidered 96

the =u0reme Court and it %as found that the same %as su9e$t

to 0aramount $onsideration of the %elfare of the $hild. The

order of the = $ourt granting $ustod6 of the $hild to the

res0ondent %as held not 9inding on the A0e Court as the $hild

%as settled %ith the mother. t %as o9served that the Court to

%hi$h the $hild %as moved $ould $ondu$t summar6 in>uir6 and

the Court %ould return the $hild to the $ountr6 from %hi$h the

$hild has 9een removed unless su$h return $ould 9e sho%n to

9e harmful to the $hild. The overriding $on$ern ho%ever,

remains the $hildJs %elfare.

2@. The =u0reme Court in the $ase of D(',?',* J/(*

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#5+&'$! relied on( 9**/, *, M9 V. M9 #5+&'$.

'e have alread6 adverted to the de$ision in $ase of M9 V.

M9%hile dis$ussing the udgment in Ravi Chandran Case.

n relation to M9 V. M9, the =u0reme Court in

D(',?',* J/(* o9served that HThe leading $ase in this

9ehalf is the one rendered 96 the /riv6 Coun$il in !(! in

M9 V. M9 171 AC 372 : #171$ 1 A-- ER 42 #PC$ . n

that $ase, the 0arties %ho are Ameri$an $itiLens, %ere married

in =A and lived there till De$em9er, !4. n !@.!2.!4! the

de$ree of divor$e %as 0assed in =A and $ustod6 of the $hild

%as later given to the mother. The father too5 a%a6 the $hild

to Canada. n ha9eas $or0us 0ro$eedings 96 the mother

though initiall6, the de$ision of the lo%er Court %ent against

the mother, the =u0reme Court of Canada gave her $ustod6

9ut the said Court held that the father $ould not have held the

>uestion of $ustod6 retried in Canada on$e the >uestion %as

held in favour of the mother earlier. n a00eal ?ord =imonds

held that in 0ro$eedings relating to $ustod6 9efore the

Canadian Court, Pthe %elfare and ha00iness of the infant are of

0aramount $onsiderationJ and the order of the foreign $ourt in

=A as to the $ustod6 of the $hild $an 9e given due %eightage

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in the $ir$umstan$es of the $ase, 9ut su$h an order of the

foreign $ourt %as onl6 one of the fa$ts %hi$h must 9e ta5en

into $onsideration. t %as further held that it %as dut6 of the

Canadian Court to form an inde0endent udgment on the

merits of the matter in regard to the %elfare of the $hild. The

order of the foreign $ourt in = %ould 6ield to the %elfare of

the $hild. JComit6 of $ourts demanded not its enfor$ement 9ut

its grave $onsiderationJ. The =u0reme Court further o9served

that the la% laid do%n in M9 V. M9 #5+&'$ is the

la% in K, Canada, =A and Australia and it is follo%ed in those

$ountries.

1 &m0hasis =u00lied ]

28. Thereafter the =u0reme Court in the $ase of

D(',8',* J/(* #5+&'$, o9served that ho%ever, there is an

a00arent $ontradi$tion 9et%een the vie% of M9 V. M9

#5+&'$ andH. #I,>',$! *, & #166$ 1 WLR 3"1 #C( @ CA$:

#166$ 1 A-- ER ""6 #CA$. The =u0reme Court o9served that

this a00arent $onfli$t %as e0lained and resolved 96 the Court

of A00eal in 1;4 *, L.#M*,/&$, n & #1;4$ 1 WLR 270:#1;4$

1 ALL ER 13 #CA$ and in R. #M*,/&$! I, & #1"1$ 2 FLR 416

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#CA$. t %as held 96 Court of A00eal in L#M*,/&$ in

+&'$ that the vie% in M9 V. M9 #5+&'$is still the

$orre$t vie% and the limited >uestion %hi$h arose in the later

de$isions %as %hether the Court in the $ountr6 to %hi$h the

$hild %as removed, $ould $ondu$t a summar6 in>uir6 or an

ela9orate in>uir6 on the >uestion of $ustod6. n the $ase of

summar6 in>uir6, the Court %ould return the $ustod6 to the

$ountr6 from %hi$h the $hild %as removed, unless su$h return

$ould 9e held to 9e harmful to the $hild. n the $ase of

ela9orate in>uir6, the Court $ould go into merits as to %here

the 0ermanent %elfare la6 and ignore the order of the foreign

$ourt or treat the fa$t of removal of the $hild from another

$ountr6 as onl6 one of the $ir$umstan$es. t %as o9served

that the $ru$ial >uestion as to %hether the Court Ein the

$ountr6 to %hi$h the $hild is removedF %ould eer$ise the

summar6 or ela9orate 0ro$edure is to 9e determined a$$ording

to the $hildJs %elfare. t %as further o9served that the

summar6 urisdi$tion to return the $hild is invo5ed, for eam0le

if the $hild has 9een removed from his native land and

removed to another $ountr6, %here, ma6 9e, his native

language is not s0o5en, or the $hild gets divor$ed from the

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"!. n the $ase of R'( . G5+' V. R') G/+'-

Auires that the

0resent $ustod6 should 9e $hanged and the $hild should 9e left

in the $are and $ustod6 of some one else. n the 0resent $ase,

the $ustod6 of the $hild $annot 9e said to 9e illegal as the

res0ondent mother is holding the $ustod6 of the $hild 0ursuant

to an order dated 2.!.2++" %hi$h order %as first 0assed 96 the

Court in ndia, 0rior to an6 order 9eing 0assed 96 the Court in

.K. Moreover, the $hild as of toda6 is a9out "B!*2 6ear old and

she is %ell settled %ith the mother and there is no reason %h6

0resent $ustod6 should 9e $hanged.

"2. Thus, in all the a9ove de$isions, it is held that

%henever a >uestion arises 9efore the Court 0ertaining to the

$ustod6 of a minor, the matter is to 9e de$ided not on

$onsideration of legal rights of the 0arties 9ut on the sole and

0redominant $riterion of %hat %ould 9e the interest of the

minor. n the 0resent $ase, the minor is a girl $hild %ho is "

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and half 6ears old. t is dou9tful if the a00ellant %ill 9e in a

0osition to ta5e 9etter $are of a girl $hild %ho is so 6oung. n

the other hand, the res0ondent %ho is in ndia, has su00ort of

her sister, mother and other relatives %ho $an hel0 her in

loo5ing after the $hild. n su$h $ase, the $ustod6 of the

mother %ould 9e the 9est. The =u0reme Court also in the $ase

of S'&*' V. S5(*- S('&)' #5+&'$! has o9served that

ordinaril6 the female $hild should 9e allo%ed to remain %ith the

mother so that she $an 9e 0ro0erl6 loo5ed after. =o also in the

$ase of /aul ahun Esu0raF, it %as held that normall6 a female

$hild ma6 9e 9etter ta5en $are of 96 the mother.

"". Mr. -auhar then argued that the $ourts in all $ountries

are 9ound to ensure that one 0arent does not get an6

advantage of an6 %rong doing li5e moving the $hild from one

$ountr6 to another. 7e relied on the de$ision in the $ase of

A&'(* B',* V B',* J'


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$ases %here the first order in relation to the $ustod6 of the

$hild %as 0assed 96 a foreign $ourt in favour of one 0arent and

then thereafter the other 0arent has ta5en the $hild outside the

urisdi$tion of that $ountr6. 7o%ever, in the 0resent $ase, no

order has 9een 0assed 96 the K Court 9efore the res0ondent

9rought the $hild to ndia and hen$e, it $annot 9e said that the

res0ondent has $ommitted an6 %rong doing. n the 0resent

$ase, the first order relating to $ustod6 of the minor $hild is of

the Court in ndia. The said order is dated 2.!.2+!". The

orders 0assed 96 K Court are su9se>uent. There is no $ase

of flouting of an6 order in K. n su$h $ase, it $annot 9e held

that the res0ondent is guilt6 of an6 %rong doing.

"4. Thereafter, Mr. -auhar argued that the de$isions in

the $ase of M9 V. M9! L#M*,/&$! D(',8',* J/(* B

S-),! *, &! B. V. B! *, & ', &,/ #5+&'$ %ere

$onsidered in V. R'8* C(',&',and thereafter, the =u0reme Court

dire$ted the $hild to 9e ta5en 9a$5 to =A. t is 0ertinent to note

that in R'8* C(',&', #5+&'$! the =u0reme Court has not held

that the vie% in the M9 V. M9! #M*,/&$! B

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S-), *, &! B. V. B D(',8',* J/(*! ', &,/

#5+&'$ is an in$orre$t vie% 9ut the =u0reme Court o9served

that the fa$ts and $ir$umstan$es of the $ase in R'8* C(',&',

#5+&'$do not %arrant an ela9orate in>uir6 and did not re>uire

the 0arties to 9e relegated to the said 0ro$edure 9efore an

a00ro0riate forum in this $ountr6 in this regard. The de$ision

in the $ase of R'8* C(',&', %as rendered in a 7a9eas

Cor0us /etition and no 0ro$eedings %ere initiated 96 an6 of the

0arties 9efore the amil6 Court. 7o%ever, in the 0resent $ase,

the matter is alread6 0ending 9efore an a00ro0riate forum in

this $ountr6. No% that the matter is 0ending 9efore the amil6

Court at #andra, it %ould 9e in the fitness of things that an

ela9orate in>uir6 is $ondu$ted into the >uestion of $ustod6 of

minor Mihi5a. No dou9t, in R'8* C(',&', #5+&'$ the minor

Adith6a %as an Ameri$an $itiLen 9orn and 9rought u0 in =A

and he had s0ent his initial 6ears there. The =u0reme Court

o9served that as a matter of fa$t, 5ee0ing in vie% the %elfare

and ha00iness of the $hild and in his 9est interest the 0arties

had o9tained a series of $onsent orders $on$erning his

$ustod6*0arenting rights, maintenan$e, et$. from the

$om0etent $ourts of urisdi$tion in Ameri$a. Thus, %hat

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%eighed on the mind of the Court in the $ase of R'8* C(',&',

#5+&'$ is the fa$t that all the orders $on$erning $ustod6 of

the minor $hild Adith6a had 9een 0assed 96 the Ameri$an

$ourts 96 the $onsent of the 0arties and thereafter the $hild

%as removed from =A to ndia. n su$h $ase, the 0rin$i0le of

$omit6 of $ourts %ould $ome into 0la6 as the $hild %as

removed to ndia $ontrar6 to the $ustod6 orders of the Court in

=A. n the 0resent $ase, the ndian Court has 0assed the first

order in relation to the $ustod6 of the $hild and thereafter, the

K Court has 0assed orders dire$ting that the $hild is made the

%ard of the K Court. f the 0rin$i0le of $omit6 of $ourts is to

9e follo%ed, the Court in K %ould have to 6ield to the order

0assed 96 the Court in ndia as the Court in ndia had 0assed

the first order in relation to the $ustod6 of the $hild.

"(. Another reason for the =u0reme Court in R'8*

C(',&', #5+&'$ dire$ting that the $hild 9e ta5en 9a$5 to

=A is that though the $hild had 9een in ndia for almost t%o

6ears $ontrar6 to the orders of the = Court, the $hild had not

develo0ed roots in ndia. The reason %as that the mother had

9een removing the $hild from one 0la$e to another and from

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one =tate to another, therefore, his edu$ation did not ta5e

0la$e at one 0la$e. The $hild %as removed from one s$hool to

another. 7e %as admitted in the s$hool at Deheradun 96 the

mother and removed %ithin a fe% months. n the month of

-une, 2++ the $hild had 9een admitted in some s$hool at

Chennai. The =u0reme Court o9served that the mother had

9een moving the $hild from one =tate to another, in su$h

$ir$umstan$es, there %as no o$$asion for the $hild to develo0

roots in this $ountr6.

". n the 0resent $ase, 0etition for $ustod6 of the $hild

%as moved under 7indu Marriage A$t %hi$h is $lear from the

title of the /etition No. AB! of 2+!" %hi$h %as moved 96 the

%ife for divor$e 9efore the amil6 Court at #andra, Mum9ai. As

the a00li$ation for $ustod6 has 9een moved in the said 0etition,

it is o9viousl6 under the 7indu Marriage A$t and not under the

uardianshi0 and 'ards A$t under %hi$h man6 de$isions %ere

relied u0on on the 0oint that 0etition has to 9e moved in the

urisdi$tion of the Court %here the minor ordinaril6 resides.

There is no su$h restri$tion under the 7indu Marriage A$t as is

found in the uardianshi0 'ards A$t.

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"@. As the %ife first in 0oint of time has filed 0etition

9efore the amil6 Court for $ustod6 of the minor $hild Mihi5a,

this Court %ould 9e the $losest to de$ide the issue regarding

the $ustod6 of the minor $hild and not K Court %hi$h %as

moved su9se>uentl6 after the Court in ndia %as moved. The

Court in ndia %as alread6 in seisin of the matter and had

alread6 0assed order though interim in nature in relation to the

$ustod6 of the $hild and it is thereafter that K Court 0assed an

order ma5ing the $hild %ard of the K Court. As far as moving

the Court in K 96 the a00ellant is $on$erned, the 0etition

moved 96 him 9efore K $ourt sho%s that the a00ellant %as

a%are of the matter 0ending 9efore the Court in ndia in

relation to the $ustod6 of the $hild. rom the material 9efore

us it is also $lear that the A00ellant %as also a%are of the order

dated 2.!.2+!" 0assed 96 the amil6 Court, Mum9ai in relation

to $ustod6 of the $hild. Though he dis$losed 9efore the Court

in K that su$h matter %as 0ending 9efore the Court in ndia,

he did not dis$lose that order regarding $ustod6 of the $hild

had 9een 0assed 96 the Court in ndia. 7ad he dis$losed this

fa$t to the Court in K loo5ing to the 0rin$i0le of $omit6, the

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K Court ma6 not have 0assed the order dire$ting Mihi5a to 9e

a %ard of the Court in K. n$e the a00ellant $ame to 5no%

that the order had 9een 0assed 96 the Court here in ndia, the

0ro0er $ourse for him %as to have a00roa$hed the Court here

in ndia and not the Court in .K.

"8. Another reason %h6 %e $annot loo5 into the orders

0assed 96 the Court in .K. is that the orders %ere not 0assed

on the merits of the $ase. =e$tion !" of the C./.C. reads as

underG

H13. W(, >/&*


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EeF %here it has 9een o9tained 96 fraudI

EfF %here it sustains a $laim founded on a 9rea$h of

an6 la% in for$e in ndia.

n 9are 0erusal of three orders 0assed 96 the Court

in .K. it is >uite $lear that it %as not 9eing given on the merits

of the $ase and as su$h, the said orders $annot 9e said to 9e

$on$lusive.

" Mr. Mu$hhala the learned $ounsel for the Res0ondent

0la$ed relian$e on the de$ision of the /riv6 Coun$il in the $ase

of B&*-'- R')*' ', ',/(& V. G/8*,&') G/&(','

S'&*' ', /(&re0orted in AIR #34$ 14; P&*8 C/5,9*-

12! %herein it is held that under se$tion !" of Civil /ro$edure

Code, a foreign udgment shall not 9e $on$lusive %here it has

not 9een given on the merits of the $ase. Mr. Mu$hhala

0ointed out that three orders 0assed 96 the .K. Court are not

at all on the merits of the $ase and in su$h $ase, it $annot 9e

said that these orders are $on$lusive or have an6 9inding

effe$t.

4+ Thereafter the learned $ounsel for the a00ellant

0ointed out that the $hild is sta6ing at Thane %ith her mother.

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n su$h $ase, the Court in Mum9ai %ould have no urisdi$tion

to entertain the a00li$ation see5ing $ustod6 of the $hild. The

main 0etition in the 0resent $ase is for divor$e under the 7indu

Marriage A$t. t is an admitted fa$t that 9oth the a00ellant and

res0ondent %ere married at Dadar, Mum9ai as 0er 7indu 3edi$

rites. nder =e$tion ! of the 7indu Marriage A$t, a 0etition

$an 9e 0resented %here the marriage too5 0la$e. 7en$e, in

su$h $ase, the 0etition $ould 9e filed 9efore the amil6 Court at

#andra, Mum9ai, in %hose urisdi$tion Dadar falls. 'e re0eat

that a00li$ation for $ustod6 %as made in the 0etition for

divor$e. That means the a00li$ation %as made under =e$tion

2 of the 7indu Marriage A$t. The title of the 0etition itself

ma5es it $lear that the 0etition is filed under =e$tions !"E!FEiaF

and 2 of the 7indu Marriage A$t. The Court at ?ondon is not

the $om0etent $ourt of urisdi$tion to de$ide the issue of

dissolution of marriage 9et%een t%o 7indus married in ndia as

0er the 7indu 3edi$ rites and $eremonies. The =u0reme Court

in the $ase ofY. N'&'*)('&'/ V. Y. V,''-'()* #11$

3 SCC 471! held that the marriages %hi$h ta5e 0la$e in this

$ountr6 $an onl6 9e under either the $ustomar6 or the

statutor6 la% in for$e in this $ountr6. 7en$e, the onl6 la% that

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$an 9e a00li$a9le to the matrimonial dis0utes is the one under

%hi$h the 0arties are married, and no other la%. The =u0reme

Court so o9served %hile $onsidering the a00li$ation of a foreign

udgment in matrimonial dis0ute. t %as further o9served that

the 0arties do and ought to 5no% their rights and o9ligations

%hen the6 marr6 under a 0arti$ular la%. The6 $annot 9e heard

to ma5e a grievan$e a9out it later or allo%ed to 960ass it 96

su9terfuges as in the 0resent $ase. n the $ase of

N'&'*)('&'/ #5+&'$! the =u0reme Court $ategori$all6

o9served that marriages 0erformed under the 7indu Marriage

A$t $an 9e dissolved onl6 under the said A$t. Naturall6

0rovisions of the 7indu Marriage A$t %ith regard to urisdi$tion

%ould also $ome into 0la6. The a00ellant has no $ase that the

a00li$ation for divor$e $ould 9e made 9efore the Court in K

under the 7indu Marriage A$t.

4!. t ma6 9e noti$ed that none of the 0rovisions of 7.M.

A$t la6 do%n the time and $ondition under %hi$h it %ill $ease to

a00l6. n other %ords, on$e the 0rovisions of 7indu Marriage

A$t a00l6, it %ould $ontinue to a00l6 as long as the marriage

eists and even for dissolution of the marriage. The 7indu

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marriage gives rise to 9undle of rights and o9ligations 9et%een

the 0arties to the marriage and their 0rogen6. Therefore, the

s6stem of la% %hi$h should govern a marriage, should remain

$onstant and $annot $hange %ith vagaries*%hims of the 0arties

to the marriage. 'e ma6 9riefl6 glan$e at Cheshire and North

/vt. nternational ?a%, %herein the learned Author at /age !24

0oints out that Hit has 9een universall6 re$ognised that

>uestions affe$ting the 0ersonal status of a human 9eing

should 9e governed $onstantl6 96 one and the same la%,

irres0e$tive of %here he ma6 ha00en to 9e or of %here the

fa$ts giving rise to the >uestion ma6 have o$$urred. f the

0ro0osition that the time at %hi$h the domi$ile is to 9e

determined is %hen the 0ro$eedings under 7indu Marriage A$t

$ommen$es, is a$$e0ted then ever6 0etition filed 96 the %ife

%hose hus9and moves from one $ountr6 to another for the

0ur0oses of o9 or for an6 0ur0ose %hatsoever, he %ould 9e

a9le to frustrate a 0etition 9rought 96 the %ife 96 $hanging his

domi$ile even 9et%een the 0resentation of the 0etition and the

hearing of the $ase. The rule is Hon$e $om0etent, al%a6s

$om0etent and this %ill 9e so even if the 0art6 domi$iled in

ndia at the time of their marriage has sin$e $hanged his

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domi$ile, disasso$iated himself from the determination of his

status 96 the Court in ndia. The 0ro0osition of la% $anvassed,

that the time at %hi$h the domi$ile is to 9e determined is %hen

the 0ro$eedings are $ommen$ed, therefore, $annot 9e

a$$e0ted, insofar as the 0etitions under 7indu Marriage A$t is

$on$erned, inasmu$h as it %ould 9e against the 0u9li$ 0oli$6 in

this $ountr6 and %hi$h ma6 $reate a serious so$ial 0ro9lem.

The 7indu so$iet6 is dee0l6 interested in maintaining integrit6

of the nstitution of the marriage. n$e the 0arties have

sele$ted 7indu Marriage A$t as their 0ersonal la%, the6 $annot

a9di$ate the same at their free %ill or as 0er eigen$ies of

situation or a$$ording to their %hims and fan$ies. Therefore,

%e are of the $onsidered o0inion that the time at %hi$h the

domi$ile is to 9e determined is %hen the 0arties tie nu0tial

5not under the 7indu Marriage A$t and not the date %hen an

a00li$ation is made for matrimonial reliefs. As a natural

$orollar6 thereof, even if a 0art6 to the matrimonial 0etition

esta9lishes that after marriage he a$>uired domi$ile of some

other $ountr6, it %ould not ta5e a%a6 the urisdi$tion of the

Court in ndia if on the date of the marriage he %as domi$iled

in ndia. t is unust that a 0art6 to the marriage $an $hange his

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entire s6stem of 0ersonal la% 96 his or her unilateral de$ision.

f that is allo%ed it %ould ma5e the 0osition of a %ife ver6

misera9le or hel0less. 'e have therefore, no hesitation in

holding that the 0rovisions of 7indu Marriage A$t %ill $ontinue

to a00l6 to the marriage of 0arties %ho %ere admittedl6

domi$iled in ndia on the date of their marriage and the6

$annot 9e heard to ma5e a grievan$e a9out it later or allo%ed

to 96B0ass it 96 su9terfuges. The rule, as o9served 96 the a0e

Court in the $ase ofY. N'&*)(' R'/ also has an advantage

of res$uing the institution of marriage from un$ertain maLe of

the rules of the /rivate nternational ?a% of the different

$ountries %ith regard to urisdi$tion.

42. A Division #en$h of this Court in the $ase of S/,5&

R'*,* V. S/,5& G/+'- 2007#4$ M(.L.J. 6"" has also

o9served that the issue of domi$ile is to 9e $onsidered on the

date of marriage and not on date of filing 0etition. This

de$ision %as $arried to the =u0reme Court in S/,5& G/+'-

V. S/,5& R'*,* 11 #2013$ DMC "33 #SC$ : #2013$ ;

SCC 426 and the =u0reme Court did not set aside %hat the

#om9a6 7igh Court had held in =ondur Raini Esu0raF that

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domi$ile is to 9e $onsidered on the date of marriage.

4". The a00ellant admittedl6 9eing a 7indu, if he has

solemniLed marriage 96 7indu 3edi$ rites in Mum9ai in ndia,

then im0liedl6 he has su9mitted himself to the urisdi$tion of

this Court. #6 marr6ing in ndia as 0er the 0rovisions of the

7indu Marriage A$t, the a00ellant $annot es$a0e 0utting forth

his domi$ile.

44. Admittedl6, 9oth the a00ellant and the res0ondent

%ere earlier $itiLens of ndia and domi$iled in ndia. The6 got

married at Dadar in Mum9ai in ndia on [email protected]++. The

a00ellant 9e$ame a $itiLen of .K. in the 6ear 2++ and the

%ife 9e$ame $itiLen of .K. on 24.8.2+!!. Thus, initiall6 the6

%ere domi$iled in ndia that is their domi$ile of origin is ndia

and later on the6 9e$ame .K. $itiLens and %ere domi$iled in

.K. 7o%ever, thereafter the res0ondent has returned 9a$5 to

ndia on !2.!2.2+!2 as her mother %as hos0italiLed.

Thereafter she has $ontinued to sta6 in ndia on a$$ount of illB

health of her mother. riginall6 though she intended to return

9a$5, thereafter, her intention $hanged loo5ing to the health of

her mother and other $ir$umstan$es. The a00li$ation %hi$h she

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has made 9efore the amil6 Court $learl6 sho%s that she

intends to reside in ndia in the net man6 6ears to $ome. n

the a00li$ation it is $learl6 stated that she %ould go to .K. onl6

to %ind u0 things there. This sho%s that she is see5ing to

revive her domi$ile of origin and she has underta5en man6

ste0s in that dire$tion. As the res0ondent is $onstrained to

sta6 in ndia and hen$e, is no% 0lanning to sta6 in ndia %hi$h

is seen from her a00li$ation as %ell as re0l6 filed 9efore the

amil6 Court, Mum9ai in a00li$ation filed 96 the hus9and

raising 0oint of urisdi$tion in relation to order 0assed relating

to $ustod6 of $hild. =he has $learl6 stated therein that she has

$onve6ed to the soli$itor of the a00ellant in ?ondon that she

%ould return to the K onl6 to %ind things u0 as she has

0lanned to sta6 in ndia. The 0ermanent home of the

res0ondent is no% in ndia, hen$e, she %ishes to get admission

for her $hild in ndia and a$$ordingl6, the $hild has 9een

admitted to a s$hool in ndia. The res0ondent has also

resigned from her o9 in .K. on 2.!.2+!". This resignation

letter has also 9een a$$e0ted in .K. on 4.!.2+!". This further

sho%s her intention of reverting 9a$5 to her domi$ile of origin.

The learned $ounsel for the a00ellant again reiterated that the

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res0ondent is not a domi$ile of ndia. =he is domi$iled in .K.

n fa$t, the a00ellant, res0ondent as %ell as the $hild are .K.

$itiLens and domi$iled in .K., hen$e, the amil6 Court at

#andra %ould not have urisdi$tion. 7e further 0ointed out

that 0rior to the marriage %hi$h too5 0la$e on [email protected]++ also

the Res0ondent %as residing in .K. Residen$e and domi$ile

are t%o different things. There is nothing to sho% that on the

date of marriage she %as domi$iled in .K. n fa$t she a$>uired

.K. CitiLenshi0 on 24.(.2+!!. t is to 9e noted that the la%

attri9utes to ever6 0erson at 9irth a domi$ile %hi$h is $alled

domi$ile of origin. This domi$ile ma6 9e $hanged and ne%

domi$ile %hi$h is $alled domi$ile of $hoi$e a$>uiredI 9ut the

t%o 5inds of domi$ile differ in one res0e$t. The domi$ile of

origin is re$eived 96 o0eration of la% at 9irthI the domi$ile of

$hoi$e is a$>uired later 96 the a$tual removal of an individual

to another $ountr6. The domi$ile of origin is al%a6s 0resent in

the 9a$5ground %aiting to 9e revived at an6 time. The $ondu$t

of the 0erson %ould sho% %hether he has reverted to his

domi$ile of origin. The $ondu$t of the res0ondent %hi$h %e

have adverted to a9ove 0rima fa$ie sho%s that she has

reverted to her domi$ile of origin.

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4(. Mr. -auhar relied on the de$ision of the =u0reme

Court in the $ase of S/,5& G/+'- V. S/,5& R'*,* #2013$ ;

SCC 426 in relation to domi$ile. n the said $ase, 9oth the

hus9and and %ife %ere 7indus, married in #anglore in ndia,

thereafter the6 moved to =%eden, 9e$ame =%edish $itiLens in

the 6ear !@. n -une, !@, the a00ellant and the res0ondent

moved to ndia as the em0lo6er of the res0ondent %as setting

u0 9usiness in ndia. The6 lived in ndia till mid ! %ith the

minor $hild Natasha. n Mid !, the res0ondent %ent to

=6dne6 as his em0lo6er offered him o9 in =6dne6, Australia.

The hus9and, %ife as %ell as minor $hild Natasha %ent to

=6dne6 on s0onsorshi0 3=A %hi$h allo%ed them to sta6 and

%or5 in Australia for a 0eriod of four 6ears. The se$ond $hild

%as 9orn to them at =6dne6 on .2.2++!. The res0ondent lost

his o9 in Australia on @[email protected]++!. 7en$e, the6 all shifted 9a$5 to

=%eden. n 2.!+.2++2 the hus9and got another o9 in =6dne6,

Australia. 7e also got tem0orar6 3=A there. n !8.!2.2++2

he %ent to =6dne6 and on !4.!2.2++2, the %ife left for Mum9ai

%ith the $hildren. n "!.!.2++" the %ife along %ith $hildren

left for Australia. After a9out a 6ear, the %ife $ame 9a$5 to

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ndia %ith 9oth the $hildren. The hus9and sta6ed 9a$5 in

=6dne6. The %ife then filed 0etition see5ing de$ree of udi$ial

se0aration under =e$tion !+ of the 7indu Marriage A$t and also

0ra6ed for 0ermanent $ustod6 of the minor $hild. The hus9and

raised a 0lea that as he %as not domi$iled in ndia, hen$e, the

0etition %as hit 96 0rovisions of =e$tion !E2F of the 7indu

Marriage A$t. n short, his $ase %as that the6 %ere $itiLens of

=%eden and 0resentl6 the hus9and is domi$iled in Australia,

therefore, the 0etition under 7indu Marriage A$t in ndia %as

not maintaina9le. As stated earlier, this matter $ame u0

9efore the #om9a6 7igh Court. The #om9a6 7igh Court held

that even if it is assumed that the hus9and had a9andoned his

domi$ile of his origin i.e. ndia and a$>uired domi$ile of =%eden

along %ith $itiLenshi0 in !@, he had a9andoned the domi$ile

of =%eden %hen he shifted to =6dne6, Australia. n su$h $ase,

it %as $lear that domi$ile of ndia got revived immediatel6 on

his a9andoning the =%edish domi$ile. This is in vie% of the

settled 0rin$i0le of nternational ?a% that if domi$ile of origin is

dis0la$ed as a result of a$>uisition of domi$ile of $hoi$e,

domi$ile of origin remains in the 9a$5ground read6 to revive

the moment he a9andons his domi$ile of $hoi$e. This Court

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held that amil6 Court %as %rong in 0ro$eeding on the

assum0tion that sin$e the 0arties a$>uired $itiLenshi0 in

=%eden, the6 a9andoned the domi$ile of origin in ndia and

a$>uired domi$ile of =%eden. Thus, this Court held that 9oth

%ere domi$iled in ndia and the Court in ndia had urisdi$tion.

This vie% %as u0held 96 the =u0reme Court in S/,5& G/+'- V.

S/,5& R'*,* #5+&'$. As stated earlier in the 0resent $ase,

the res0ondent is rel6ing on a series of events to sho% that she

has given u0 her domi$ile of $hoi$e and reverted 9a$5 to her

domi$ile of origin i.e ndia. &>uall6 it is the a00ellantJs $ase

that the domi$ile of the res0ondent %ife is still .K. n su$h

$ase, it %ould 9e ne$essar6 for 9oth sides to lead eviden$e

9efore the amil6 Court here %here /etition No. AB! of 2+!" is

0ending. t is 0ertinent to note that till no% no o9e$tion has

9een raised 9efore the amil6 Court that the 0etition for

divor$e is not maintaina9le for %hatsoever reason or that there

%as an6 %ant of urisdi$tion to entertain the 0etition for

divor$e, on this ground also, it %ould not 9e 0ossi9le for us to

entertain su$h a 0lea raised for the first time 9efore us.

4. t is 0ertinent to note that no $ase %as 0leaded or no

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$ase %hatsoever %as made out to %arrant the ree$tion of the

main 0etition under rder 3 Rule !! of C./.C. The 0ra6er of

the a00ellant is onl6 that the Court $ould not have 0assed su$h

order relating to the $ustod6 of the minor $hild.

4@. Thereafter, Mr. -auhar relied on a de$ision of a single

-udge of this Court in the $ase of '()*&' '- V

*(/&5)'& M/(', '- 2010#3$ RCR #C*8*-$ 334. 7e

0ointed out that in the said $ase, it %as held that if the 0arties

are not domi$iled in ndia, then the 0etition for divor$e is not

maintaina9le in ndia. n the said $ase, the amil6 Court held

that it had the urisdi$tion to tr6 the 0etition for divor$e. n the

0resent $ase, no su$h ground has 9een raised 9efore the

amil6 Court, hen$e, no su$h order has 9een 0assed in relation

to su$h ground, hen$e, there is no >uestion of us de$iding

%hether su$h an order is right or not. The a00ellant $annot 9e

0ermitted to raise su$h a ground for the first time 9efore us in

a00eal %ithout first raising it 9efore the trial Court. n an6

event, even if su$h a ground is raised 9efore the amil6 Court,

it %ould 9e a00ro0riate loo5ing to the fa$ts of this $ase that the

0arties lead eviden$e and then the 0oint of urisdi$tion is

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de$ided.

48. t is also 0ointed out that out of initial 0eriod of t%o

6ears and eight months, Mihi5a s0ent !" months and five da6s

in ndia and thereafter, sin$e !.!2.2+!2, Mihi5a is in ndia. n

su$h $ase, the sta6 of the $hild in ndia $annot 9e termed as a

transit sta6. There are various other fa$ts relied u0on 96 the

res0ondent to sho% she has returned to her original domi$ile

that is ndia. All these as0e$ts are su$h that it %ould re>uire

eviden$e to 9e led for the issue to 9e de$ided.

4. n the 0resent $ase, the a00ellant did not enter the

%itness 9o nor he eamined an6 %itnesses on his 9ehalf

9efore the amil6 Court. 'hat is in the interest of the minor

%ould re>uire a full and through en>uir6 for %hi$h it %ould 9e

ne$essar6 to lead eviden$e. n the fa$ts of the 0resent $ase,

even on the 0oint of domi$ile, eviden$e %ould have to 9e led.

n su$h $ase, it %ould 9e a00ro0riate that 9oth the 0arties lead

eviden$e 9efore the amil6 Court in Mum9ai and thereafter,

the matter is de$ided 96 the amil6 Court here.

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(+. n an6 event, it is seen that the amil6 Court has

granted $ustod6 of the $hild to the mother onl6 96 %a6 of an

interim arrangement. The issue of de$iding the $ustod6 and

guardianshi0 %ould arise onl6 after re$ording of the eviden$e

at the final stage.

(!. n vie% of the a9ove fa$ts, the orders dated 2.!.2+!"

and !@[email protected]+!" do not %arrant an6 interferen$e. There is no

merit in the a00eal, a00eal is dismissed. Re$ord and

0ro$eedings 9e sent 9a$5 to the trial Court.

(2. n vie% of the dismissal of the amil6 Court A00eal,

Civil A00li$ation Nos. 24! of 2+!", !! of 2+!4 and !42 of 2+!4

do not survive and are dis0osed of a$$ordingl6.

SHRI. V.L.ACHLIYA ! J. SMT. V..TAHILRAMANI! J.

kandarkar

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(". At this stage, learned $ounsel for the a00ellant see5s

sta6 to this order to ena9le the a00ellant to $hallenge the same

9efore the =u0reme Court. The re>uest is reasona9le, hen$e,

this order is sta6ed for a 0eriod of five %ee5s from toda6.

SHRI. V.L.ACHLIYA ! J. SMT. V..TAHILRAMANI! J.

kandarkar

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