Supreme Court of India
SURYA VADANANversusSTATE OF TAMIL NADU & ORS.
- Citation
- 2015 INSC 178
- Decided
- 27 February 2015
- Disposal
- Disposed off
- Bench
- MADAN B LOKUR
Holding
The foreign court’s interim order, being the first substantive order, must be given primacy under the principle of comity of courts, and the best interests of the child are best served by allowing the foreign court to determine custody, so no elaborate inquiry is required in India.
Summary
Surya and Mayura Vadanan, both British citizens, married in India and had two daughters in the UK. In August 2012 Mayura brought the children to India and filed for divorce. Surya obtained an interim order from the High Court of Justice in England making the children wards of that court and directing the mother to return them to the UK. Mayura did not comply. Surya filed a habeas corpus petition in the Madras High Court, which dismissed the petition, holding that the mother was the legal guardian and that the welfare of the children was paramount. The Supreme Court allowed the appeal, holding that the principle of comity of courts gives primacy to the foreign court’s earlier substantive order, that the foreign court has the most intimate contact with the children, and that no elaborate inquiry is required in India. The Court directed the mother to return the children to the UK and made ancillary financial and procedural directions.
Issues considered
- The extent to which an interim or interlocutory order of a foreign court should be given effect in India under the principle of comity of courts.
- Whether the domestic court must conduct a summary or elaborate inquiry into the best interests and welfare of the child before repatriating the child.
- Whether the mother’s refusal to obey the foreign court’s order justifies enforcement of that order in India.
- Whether the foreign court, having issued the first substantive order, should decide the final custody of the children.
Legislation cited
Subjects
child custodyforeign judgmentcomity of courtsbest interests of the childinterim orderrepatriationhabeas corpusfamily lawinternational child abduction
Judgment
[2015] 4 S.C.R. 903 903
SURYA VADANAN A
v.
STATE OF TAMIL NADU & ORS.
(Criminal Appeal No. 395 of 2015)
FEBRUARY 27, 2015 B
[MADAN B. LOKUR AND UDAY UMESH LAUT, JJ.]
Family Law:
Custody and guardianship of foreign children - C
determination - Whether by the domestic court or foreign
court - When the foreign court is seized of such issue -
Held: In such cases principle of 'best interests and welfare
of the child' and the principle of 'comity of courts' should
0
be applied - While deciding the best interest and welfare
of the child 'most intimate contact' doctrine and the 'closest
concern' with the child would be better equipped and best
suited to appreciate the social and cultural milieu of the
child - While applying the principle of comity of courts, the E
'first strike' principle would be applicable - Deviation from
the principle of comity of courts should be a/lowed only in
special and compelling circumstances - For repatriation of
the child to the jurisdiction of the foreign court, it is for the
court either to conduct summary or elaborate inquiry F
regarding welfare and best interest of the child - In the
facts of the present case, the order of the foreign court was
passed first in point of time and hence the principle of
comity of courts would tilt the balance in favour of the
foreign court - The foreign court has the most intimate G
contact and also the closest concern with the children and
their parents - Therefore, it would be in the best interests
and welfare of the children, if the foreign court takes final
903 H
904 SUPREME COURT REPORTS [2015] 4 S.C.R.
A decision regarding the custody of the children.
Disposing of the appeal, the Court
HELD: 1. The principle of the comity of courts is
essentially a principle of self-restraint, applicable when
8
a foreign court is seized of the issue of the custody of
a child prior to the domestic court. The two principles
namely (i) The principle of comity of courts and (ii) The
principle of the best interests and the welfare of the
C child are referred to "contrasting principles of law" but
they are not 'contrasting' in the sense of one being the
opposite of the other but they are contrasting in the
sense of being different principles that need to be
applied in the facts of a given case. [paras 50 and 52]
D [932-E-F; 934-C-E]
Shi/pa Aggarwal v. Avira/ Mittal & Anr. (2010) 1 SCC
591: 2009 (16) SCR 287 - relied on.
2. The best interests and welfare of the child are
E of paramount importance. However, this is the final
goal or the final objective to be achieved - it is not the
beginning of the exercise but the end. For reaching
this final goal or final objective, firstly, it must be
F appreciated that the "most intimate contact" doctrine
and the "closest concern" doctrine are applied. It is not
appropriate that a domestic court having much less
intimate contact with a child and having much less
close concern with a child and his or her parents (as
G against a foreign court in a given case) should take
upon itself the onerous task of determining the best
interests and welfare of the child. A foreign court
having the most intimate contact and the closest
concern with the child would be better equipped and
H perhaps best suited to appreciate the social and
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 905
cultural milieu in which the child has been brought up A
rather than a domestic court. This is a factor that must
be kept in mind. Secondly, the principle of "comity of
courts" should not be jettisoned, except for special and
compelling reasons. This is more so in a case where
only an interim or an interlocutory order has been B
passed by a foreign court. [para 51, 53 and 54] [934-8-
C; 935-A-F]
Surinder Kaur Sandhu v. Harbax Singh Sandhu (1984)
3 SCC 698: 1984 (3) SCR 422 - relied on. C
3. The principles for dealing with a foreign
judgment are laid down in Section 13 of the Code of
Civil Procedure. In passing an interim or an
interlocutory order, a foreign court is as capable of o
making a prima facie fair adjudication as any domestic
court and there is no reason to undermine its
competence or capability. If the principle of comity of
courts is accepted, due respect needs to be given even
to such orders passed by a foreign court. If an E
interim or an interlocutory order passed by a foreign
court has to be disregarded, there must be some
special reason for doing so. If the foreign court cioes
have jurisdiction, the interim or interlocutory order of
the foreign court should be given due weight and F
respect. If the jurisdiction of the foreign court is not in
doubt, the "first strike" principle would be applicable.
That is to say that due respect and weight must be
given to a substantive order prior in point of time to a
substantive order passed by another court (foreign or G
domestic). [paras 54-56] [935-H; 936-A-D; 937-F-H]
Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479: 2011
(7) SCR 674 - relied on.
H
906 SUPREME COURT REPORTS [2015) 4 S.C.R.
A 4. A violation of an interim or an interlocutory order
passed by a court of competent jurisdiction ought to
be viewed strictly if the rule of law is to be maintained.
An interim or an interlocutory order is always subject
to modification or vacation by the court that passes
B that interim or interlocutory order. [para 58] [938-F-G;
939-D]
Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479: 2011
(7) SCR 674; Arathi Bandi v. Bandi Jagadrakshaka Rao
c (2013) 15 sec 790 - relied on.
5. However, merely because a parent has violated
an order of a foreign court, does not mean that that
parent should be penalized for it. The conduct of the
o parent may certainly be taken into account for passing
a final order, but that ought not to have a penalizing
result. [para 58] [939-E]
6. In a given case, it might be appropriate to have
E an elaborate inquiry to decide whether a child should
be repatriated to the foreign country and to the
jurisdiction of the foreign court or in a given case to
have a summary inquiry without going into the merits
of the dispute relating to the best interests and welfare
F of the child and repatriating the child to the foreign
country and to the jurisdiction of the foreign court.
However, if there is a pre-existing order of a foreign
court of competent jurisdiction and the domestic court
decides to conduct an elaborate inquiry (as against a
G summary inquiry), it must have special reasons to do
so. An elaborate inquiry should not be ordered as a
matter of course. [para 59-60] [939-F, G; 940-A-B]
6.2 While deciding whether a summary or an
H elaborate inquiry should be conducted, the domestic
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 907
court must take into consideration: {a) The nature and A
effect of the interim or interlocutory order passed by
the foreign court; (b) The existence of special reasons
for repatriating or not repatriating the child to the
jurisdiction of the foreign court; {c) The repatriation of
the child does not cause any moral or physical or B
social or cultural or psychological harm to the child,
nor should it cause any legal harm to the parent with
whom the child is in India. In cases where. there are
chances of arrest of the parent on his/her return to the
foreign country, the domestic court is also obliged to C
ensure the physical safety of the parent. (d) The alacrity
with which the parent moves the concerned foreign
court or the concerned domestic court is also relevant.
If the time gap is unusually large and is not reasonably
0
explainable and the child has developed firm roots in
India, the domestic court may be well advised to
conduct an elaborate inquiry. [para 60] [940-C-G; 941-
A]
7. The facts in the present appeal reveal that the E
parents as well as their children are citizens of the U.K.;
the children were born and brought up in the U.K. in a
social and cultural milieu different from that of India
and they have grown up in that different milieu, F
different from the education system in India. The mere
fact that the children were admitted to a school in India,
with the consent of the father is not conclusive of his
consent to the permanent or long term residence of the
children in India. [para 61] [941-B-E] G
8. The mother has not taken any steps to give up
her as well as of her children's foreign citizenship and
to acquire Indian citizenship. That being the position,
the courts in India should encourage her to submit to H
908 SUPREME COURT REPORTS [2015] 4 S.C.R.
A the jurisdiction of the foreign court which has the most
intimate contact w_ith them and closest concern apart
from being located in the country of their citizenship.
The fact that the mother is of Indian origin cannot be
an overwhelming factor. [para 62] [941-G-H; 942-A-B]
B
9. Since the first effective order or direction was
passed by the foreign court, principle of comity of
courts would tilt the balance in favour of the foreign
court rather than the Family Court in India, even if it is
C assumed that the Family Court was a court of
competent jurisdiction although jurisdiction over the
matter of the custody of the two children of the couple
was questioned since they both are British citizens and
are ordinarily residents of the U.K. [para 64] [942-F-H]
D
10. The orders passed by the foreign court are only
interim and interlocutory and no finality is attached to
them. Nothing prevents the mother from contesting the
correctness of the interim and interlocutory orders and
E to have them vacated or modified or even set aside.
There is also nothing on the record to indicate that any
prejudice will be caused to the children, if they are
taken to the U.K. and subjected to the jurisdiction of
the foreign court. There is nothing to suggest that the
F foreign court is either incompetent or incapable of
taking a reasonable, just and fair decision in the best
interests of the children and entirely for their welfare.
[para 66 and 67] [943-G; 944-B-C, D]
G 11. The foreign court has the most intimate contact
with the mother and her children and also the closest
concern with the well being of the parents and their
children. That being the position even though the
mother did not violate any order of the foreign court
H when she brought her children to India, her continued
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 909
refusal to abide by the interim and interlocutory order A
of the foreign court is not justified and it would be
certainly in the best interests and welfare of the
children if the foreign court, in view of the above, takes
a final decision on the custody of the children at the
earliest. The foreign court undoubtedly has the capacity B
to do so. [para 68] [944-E-G]
12. The facts in the present case do not suggest
that because of their stay in India over the last two
years, the children are not capable of continuing with C
their life in U.K. However, this can more appropriately
be decided by the foreign court after taking all the
factors into consideration. [para 69] [945-C-D]
13. In view of facts of the case and in view of the o
efforts made for settling the dispute amicably by
mediation, there is no reason to hold any elaborate
inquiry. This elaborate inquiry is best left to be
conducted by the foreign court which has the most
intimate contact and the closest concern with the E
children. [para 71] [945-G-H]
14. In view of the fact that it will not be financially
easy for the mother to contest the claim of her husband
for the custody of th'e children, certain directions are F
given in favour of the mother to enable her to present
an effective case before the foreign court. [para 72]
[946-B-C]
Sarita Sharma v. Sushi/ Sharma (2000) 3 SCC 14: G
2000 (1) SCR 915;V. Ravi Chandran v. Union of India
(2010) 1 SCC 174: 2009 (15) SCR 960; Dhanwanti Joshi
v. Madhav Unde (1998) 1 SCC 112: 1997 (5) Suppl. SCR
30;Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC
42: 1987 (1) SCR 175 - referred to. H
910 SUPREME COURT REPORTS [2015] 4 S.C.R.
A Case Law Reference
2000 (1) SCR 915 referred to. Para 22
2009 (16) SCR 287 relied on Paras 22 and 52
2009 (15) SCR 960 referred to. Para 22
2011 (7) SCR 674 relied on Paras 22 and 57
B
(2013) 15 sec 190 relied on Para 22
1984 (3) SCR 422 relied on Para 26
1997 (5) Suppl. SCR 30 referred to. Para 26
1987 (1) SCR 175 referred to. Para 26
c CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 395 of 2015.
From the Judgment and Order dated 04.11.2013 of the
High Court of Judicature at Madras in Habeas Corpus
D Petition No. 522 of 2013.
Prabhjit Jauhar, Rosemary Raju, S. S. Jauhar for the
Appellant.
Jayant Bhushan, Surya Senthil, B. Karunakaran, S.
E Gowthaman for the Respondent.
The Judgment of the Court was delivered by
MADAN B. LOKUR, J. 1. Leave granted.
F
2. The question before us relates to the refusal by the
Madras High Court to issue a writ of habeas corpus for
the production of the children of Surya Vadanan and
Mayura Vadanan. The appellant sought their production to
G enable him to take the children with him to the U.K. since
they were wards of the court in the U.K. to enable the
foreign court to decide the issue of their custody.
3. In our opinion, the High Court was in error in
H declining to issue the writ of habeas corpus.
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 911
[MADAN B. LOKUR, J.]
The facts A
4. The appellant (hereafter referred to as Surya) and
respondent No.3 (hereafter referred to as 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 B
at the time of marriage Mayura was a resident and citizen
of India.
5. Soon after their marriage Mayura joined her husband
Surya in U.K. sometime in March 2000. Later she acquired c
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.
D
6. On 23'd 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 E
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.
7. It appears that the couple was having some
matrimonial problems and on 13th August, 2012 Mayura left F
U.K. and came to India along with her two daugnters.
Before leaving, she had purchased return tickets for h1erself
and her two daughters for 2nd September, 2012. She says
that the round-trip tickets were cheaper than one-way
tickets and that is why she had purchased them. According G
to Surya, the reason for the purchase of round-trip tickets
was that the children's schools were reopening on 5th
September, 2012 and she had intended to return to U.K.
before the school reopening date.
8. Be that as it may, on her arrival in India, Mayura H
912 SUPREME COURT REPORTS [2015] 4 S.C.R.
A and her daughters went to her parents house in Coimbatore
(Tamil Nadu) and have been staying there ever since.
9. On 21st August, 2012 Mayura prepared and signed
a petition under Section 13(1 )(i-a) of the Hindu Marriage
B Act, 19551 seeking a divorce from Surya. The petition was
filed in the Family Court in Coimbatore on 23'd August,
2012. We are told that an application for the custody of
the two daughters was also filed by Mayura but no orders
seem to have been passed on that application one way or
C the other.
10. On or about 23'd August, 2012 Surya came to know
that Mayura was intending to stay on in India along with
their two daughters. Therefore, he came to Coimbatore on
o or about 27th August, 2012 with a view to amicably resolve
all differences with Mayura. Interestingly while in
Coimbatore, Surya lived in the same house as Mayura and
their two daughters, that is, with Surya's in-laws. According
to Surya, he was unaware that Mayura had already filed a
E petition to divorce him.
1 13. Divorce.-(1) Any marriage solemnized, whether before or after the
commencement of this Act, may, on a petition presented by either the
F husband or the wife, be dissolved by a decree of divorce on the ground that
the other party-
(1) has, after the solemnization of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse; or
G (i-a) has, after the solemnization of the marriage, treated the petitioner with
cruelty; or
(i-b) ha,:i deserted the petitioner for a continuous period of not less than two
.years immediately preceding the presentation of the petition; or
H [rest of the provision is not relevant]
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 913
[MADAN B. LOKUR, J.]
11. Since it appeared that the two daughters of the A
couple were not likely to return to U.K. in the immediate
future and perhaps with a view that their education should
not be disrupted, the children were admitted to a school in
Coimbatore with Surya's consent.
B
12. Since Surya and Mayura were unable to amicably
(or otherwise) resolve their differences, Surya returned to
U.K. on or about 5th September, 2012. About a month later,
on 16th October, 2012 he received a summons dated 5th
October, 2012 from the Family Court in Coimbatore in the C
divorce petition filed by Mayura requiring him to enter
appearance and present his case on 29th October, 2012.
We are told that the divorce proceedings are still pending
in the Family Court in Coimbatore and no substantial or
effective orders have been passed therein. D
Proceedings in the U.K.
13. Faced with this situation, Surya also seems to have
decided to initiate legal action and on 81h November, 2012 E
he petitioned the High Court of Justice in U.K. (hereinafter
referred to as 'the foreign court') for making the children
as wards of the court. It seems that along with this petition,
he also annexed documents to indicate (i) that he had paid
the fees of the children for a private school in U.K. with F
the intention that the children would continue their studies
in U.K. (ii) that the children had left the school without
information that perhaps they would not be returning to
continue their studies.
G
14. On 131h November, 2012 the High Court of Justice
passed an order making the children wards of the court'
"during their minority or until such time as this provision of
this order is varied or alternatively discharged by the further
order of the court" and requiring Mayura to return the H
914 SUPREME COURT REPORTS [2015] 4 S.C.R.
A children to the jurisdiction of the foreign court. The relevant
extract of the order passed by the foreign court on 131h
November, 2012 reads as under:--
"IT IS ORDERED THAT:
B 1. The children SNEHA LAKSHMI VADANAN AND KAMINI
LAKSHMI VADANAN shall be and remain wards of this
Honourable Court during their minority or until such time
as this provision of this order is varied or alternatively
discharged by the further order of the court_
c
2. The Respondent mother shall :
a. By no later than 4 p.m. on 201h November 2012 inform
the father, through his solicitors (Messrs Dawson
Cornwell, 15 Red Lion Square, London, WC1R4QT. Tel:
D
0207 242 2556 Ref: SJ/AMH), of the current care
arrangements for the children;
b. By no later than 4 p.m. on 201h November 2012 inform
the father, through his said solicitors, of ·the
E arrangements that will be made for the children's return
pursuant to paragraph 2(c) herein;
c. Return the children to the jurisdiction of England and
Wales by no later than 11.59 p.m. on 271h November
F 2012;
d. Attend at the hearing listed pursuant to paragraph 3
herein, together with solicitors and/or counsel if so
instructed.
G A penal notice is attached to this paragraph.
3. The matter shall be adjourned and relisted for further
directions or alternatively determination before a High
Court Judge of the Family Division sitting in chambers
at the Royal Court of Justice, Strand, London on 291h
H
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 915
[MADAN B. LOKUR, J.]
November 2012 at 2 p.m. with a time estimate of 30 A
minutes.
4. The mother shall have leave, if so advised, to file and
serve a statement in response to the statement of the
Applicant father. Such statement to be filed and served
B
by no later than 12 noon on 29'h November 2012.
5. Immediately upon her and the children's return to the
jurisdiction of England and Wales the mother shall lodge
her and the children's passports and any other travel
documents with the Tipstaff (Tipstaff's Office, Royal c
Courts of Justice, Strand, London) to be held by him to
the order of the court.
6. The solicitors for the Applicant shall have permission to
serve these proceedings, together with this order, upon D
the Respondent mother outside of the jurisdiction of
England and Wales, by facsimile or alternatively
scanned and e-mailed copy if necessary.
7. The Applicant father shall have leave to disclose this E
order to:
a. The Foreign and Commonwealth Office;
b. The British High Commission, New Delhi;
F
c. The Indian High Commission, London
d. Into any proceedings as the mother may have issued of
India, including any divorce proceedings.
G
8. Costs reserved.
AND THIS HON'BLE COURT RESPECTFULLY REQUESTS
THAT the administrative authorities of the British
Government operating in the jurisdiction of India and the
H
916 SUPREME COURT REPORTS [2015] 4 S.C.R.
A judicial and administrative authorities of India, including
the Indian High Commission in England, assist in any
way within their power and control in ascertaining the
current whereabouts of the children herein, who have
been made wards of court, and in assisting in
B repatriating them to England and Wales, the country of
their habitual residence."
15. In response to the petition filed by Surya, a written
statement was filed by Mayura on 20th November, 2012.
C A rejoinder was filed by Surya on 13th December, 2012.
16. Apparently, after taking into consideration the
written statement, the foreign court passed another order
on 29th November, 2012 virtually repeating its earlier order
o and renewing its request to the administrative authorities
of the British Government in India and the judicial and
administrative authorities in India for assistance for
repatriation of the wards of the court to England and Wales,
the country of their habitual residence. The relevant extract
E of the order dated 29th November, 2012 reads as under:-
"IT IS ORDERED THAT :
1. The children SNEHA LAKSHMI VADANAN AND KAMIN!
VADANAN shall be and remain wards of this Hon'ble
F
Court during their minority and until such time as this
provision of this Order is varied or alternatively
discharged by the further Order of the Court.
2. The 1st Respondent mother, 2"d Respondent maternal
G Grandfather and 3'd Respondent maternal Grandmother
shall:
a. Forthwith upon serve of this Order upon them inform the
father, through his said solicitors, of the arrangements
H that will be made for the children's return pursuant to
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 917
[MADAN B. LOKUR, J.]
paragraph 2(c) herein; 2 A
b. Return the children to the jurisdiction of England and
Wales forthwith upon service of this Order upon them;
A penal notice is attached to this paragraph.
B
3. The matter shall be adjourned and relisted for further
directions or alternatively determination before a High
Court Judge of the Family Division sitting in chambers
at the Royal Court of Justice, Strand, London within 72
hours of the return of the children or alternatively upon c
application to the Court for a further hearing.
4. The father shall have leave, if so advised, to file and
serve a statement of the mother. Such statement to
be filed and served by no later than 12 noon on 13th D
December 2012.
5. Immediately upon her and the children's return to the
jurisdiction of England and Wales the mother shall lodge
her and the children's passports and any other travel E
documents with the Tipstaff (Tipstaff's Office, Royal
Courts of Justice, Strand, London) to be held by him to
the Order of the Court.
6. The solicitors for the Applicant shall have permission to F
serve these proceedings, together with this Order, upon
the Respondent mother outside of the jurisdiction of
England and Wales, by facsimile or alternatively
scanned and e-mailed copy if necessary.
G
7. The Applicant father shall have leave to disclose this
order to:
2 There is no paragraph 2(c) in the text of the order supplied to this court.
H
918 SUPREME COURT REPORTS [2015] 4 S.C.R.
A a. The Foreign and Commonwealth Office;
b. The British High Commission, New Delhi;
c. The Indian High Commission, London;
B d. Into any proceedings as the mother may have issued in
the jurisdiction of India, including any divorce
proceedings.
8. The maternal grandparents Dr. Srinivasan Muralidharan
c and Mrs. Rajkumari Murlidharan shall be joined as
Respondents to this application as the 2nd and 3rd
Respondents respectively.
9. The mother shall make the children available for skype
D or alternatively telephone contact each Sunday and each
Wednesday at 5.30 p.m. Indian time.
10. Liberty to the 1•1 Respondent mother, 2nd Respondent
maternal Grandfather and 3rd Respondent maternal
E grandmother to apply to vary and/or discharge this order
(or any part of it) upon reasonable notice to the Court
and to the solicitors for the father.
11. Costs reserved.
F AND THIS HON'BLE COURT RESPECTFULLY REQUESTS
THAT the administrative authorities of the British
Government operating in the jurisdiction of India and the
judicial and administrative authorities of India, including
the Indian High Commission in England, assist in any
G way within their power and control in ascertaining the
current whereabouts of the children herein, who have
been made wards of court, and in assisting in
repatriating them to England and Wales, the country of
their habitual residence."
H
SURYA VADANAN v. STATE OF TAMiL NADU & ORS. 919
[MADAN B. LOKUR, J.]
17. We are told that no further effective or substantial A
orders have been passed by the foreign court thereafter.
Proceedings in the High Court
18. Since Mayura was not complying with the orders
8
passed by the foreign court, Surya filed a writ petition in
the Madras High Court in February 2013 (being HCP
No.522 of 2013) for a writ of habeas corpus on the ground,
inter a/ia, that Mayura had illegal custody of the two
daughters of the couple that is Sneha Lakshmi Vadanan c
and Kamini Lakshmi Vadanan and that they may be
produced in court and appropriate orders may be passed
thereafter.
19. After completion of pleadings, the petition filed by
0
Surya was heard by the Madras High Court and by a
judgment and order dated 4th November, 2013 the writ
petition was effectively dismissed.
20. The Madras High Court, in its decision, took the
view that the welfare of the children (and not the legal right E
of either of the parties) was of paramount importance. On
facts, the High Court was of opinion that since the children
were in the custody of Mayura and she was their legal
guardian, it could not be said that the custody was illegal F
in any manner. It was also noted that Surya was permitted
to take custody of the children every Friday, Saturday and
Sunday during the pendency of the proceedings in the
Madras High Court; that the order passed by the foreign
court had been duly complied with and that Surya had also G
returned to the U.K. On these facts and in view of the law,
the Madras High Court "closed" the petition filed by Surya
seeking a writ of habeas corpus.
21. Feeling aggrieved, Surya has preferred the present H
920 SUPREME COURT REPORTS [2015] 4 S.C.R.
A appeal on or about 9th April, 2014.
Important decisions of this court
22. There are five comparatively recent and significant
judgments delivered by this court on the issue of child
8
custody where a foreign country or foreign court is
concerned on the one hand and India or an Indian court
(or domestic court) is concerned on the other. These
decisions are: (1) Sarita Sharma v. Sushi/ Sharma 3 , (2)
c Shi/pa Aggarwal v. Aviral Mittal & Anr. 4 , (3) V. Ravi
Chandran v. Union of lndia5 , (4) Ruchi Majoo v. Sanjeev
Majoo6 , and (5) Arathi Bandi v. Bandi Jagadrakshaka
Rao. 7 These decisions were extensively read out to us and
we propose to deal with them in seriatim.
D
( 1) Sarita Sharma v. Sushi/ Sharma
23. As a result of matrimonial differences between
Sarita Sharma and her husband Sushil Sharma an order
was passed by a District Court in Texas, USA regarding
E the care and custody of their children (both American
citizens) and their respective visiting rights. A subsequent
order placed the children in the care of Sushil Sharma and
only visiting rights were given to Sarita Sharma. Without
F informing the foreign court, Sarita Sharma brought the
children to India on or about T 11 May, 1997.
24. Subsequently on 121h June, 1997 Sushi! Sharma
3 (2000) 3 sec 14
G
4 (201 OJ 1 sec 591
5 (2010) 1 sec 174
6 (2011) 6 sec 479
H 7 (2013) 15 sec 790
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 921
[MADAN B. LOKUR, J.]
obtained a divorce decree from the foreign court and also A
an order that the sole custody of the children shall be with
him. Armed with· this, he moved the Delhi High Court on
9th September, 1997 for a writ of habeas corpus seeking
custody of the children. The High Court allowed the writ
petition and ordered that the passports of the children be B
handed over to Sushi! Sharma and it was declared that he
could take the children to USA without any hindrance.
Feeling aggrieved, Sarita Sharma preferred an appeal in
this court.
c
25. This court noted that Sushi! Sharma was an
alcoholic and had used violence against Sarita Sharma. It
also noted that Sarita Sharma's conduct was not "very
satisfactory" but that before she came to India, she was in
lawful custody of the children but "she had committed a D
breach of the order of the American Court directing her not
to remove the children from the jurisdiction of that Court
without its permission."
26. This court noted the following principles regarding E
custody of the minor children of the couple:
(1) The modern theory of the conflict of laws
recognizes or at least prefers the jurisdiction of the State
which has the most intimate contact with the issues arising F
in the case. 8
(2) Even though Section 6 of the Hindu Minority and
Guardianship Act, 1956 constitutes the father as the natural
guardian of a minor son, that provision cannot supersede G
the paramount consideration as to what is conducive to the
welfare of the minor. 9
8 Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698
9 Sur inder Kaur Sandhu v. Harbax Singh Sandhu H
922 SUPREME COURT REPORTS [2015] 4 S.C.R.
A (3) The domestic court will consider the welfare of the
child as of paramount importance and the order of a foreign
court is only a factor to be taken into consideration. 10
On the merits of the case, this Court observed:
B
"Considering all the aspects relating to the welfare of
the children, we are of the opinion that in spite of the
order passed by the Court in U.S.A. it was not .proper
for the High Court to have allowed the habeas corpus
c writ petition and directed the appellant to hand over
custody of the children to the respondent and permit
him to take them away to U.S.A. What would be in
the interest of the children requires a full and thorough
inquiry and, therefore, the High Court should have
D directed the respondent to initiate appropriate
proceedings in which such an inquiry can be held."
27. Notwithstanding this, neither was the matter
remanded to the High Court for issuing such a direction to
E Sushil Sharma to approach the appropriate court for
conducting a "full and thorough" inquiry nor was such a
direction issued by this court. The order of the Delhi High
Court was simply set aside and the writ petition filed by
Sushil Sharma was dismissed.
F
28. We may note that significantly, this court did not
make any reference at all to the principle of comity of courts
nor give any importance (apart from its mention) to the
passage quoted from Surinder Kaur Sandhu to the effect
G that:
"The modern theory of Conflict of Laws recognizes·
10 Dhanwanti Joshi v. Madha11 Unde, (1998) 1 SCC 112 which in turn referred
H to McKee 11. McKee, 1951 AC 352: (1951) 1 All ER 942 (PC)
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 923
[MADAN 8. LOKUR, J.]
and, in any event, prefers the jurisdiction of the State A
which has the most intimate contact with the issues
arising in the case. Jurisdiction is not attracted by the
operation or creation of fortuitous circumstances such
as the circumstance as to where the child, whose
custody is in issue, is brought or for the time being B
lodged. To allow the assumption of jurisdiction by
another State in such circumstances will only result
in encouraging forum-shopping. Ordinarily, jurisdiction
must follow upon functional lines. That is to say, for
example, that in matters relating to matrimony and C
custody, the law of that place must govern which has
the closest concern with the well-being of the spouses
and the welfare of the offsprings of marriage."
(2) Shi/pa Aggarwal v. Aviral Mittal & Anr. D
29. Shilpa Aggarwal and her husband Aviral Mittal were
both British citizens of Indian origin. They had a minor child
(also a foreign national) from their marriage. They had
matrimonial differences and as a result, Shilpa Aggarwal E
c;.ame to India from the U.K. with their minor child. She
was expected to return to the U.K. but cancelled their return
tickets and chose to stay on in India. Aviral Mittal thereupon
initiated proceedings before the High Court of Justice,
Family Division, U.K. and on 261h November, 2008 the F
foreign court directed Shilpa Aggarwal, inter alia, to return
the minor child to the jurisdiction of that foreign court.
Incidentally, the order passed by the foreign court is
strikingly similar to the order passed by the foreign court
subject matter of the present appeal. G
30. Soon thereafter, Shilpa Aggarwal's father filed a writ
petition in the Delhi High Court seeking protection of the
child and for a direction that the custody of the child be
handed over to him. The High Court effectively dismissed H
924 SUPREME COURT REPORTS [2015] 4 S.C.R.
A the writ pe1ition and granted time to Shilpa Aggarwal to take
the child on her own to the U.K. and participate in the
proceedings in the foreign court failing which the child be
handed over to Aviral Mittal to be taken to the U.K. as a
measure of interim custody, leaving it for the foreign court
B to determine which parent would be best suited to have
the custody of the child.
31. Feeling aggrieved, Shilpa Aggarwal preferred an
appeal before this court which noted and observed that the
C following principles were applicable for deciding a case of
this nature:
(1) There are two contrasting principles of law, namely,
comity of courts and welfare of the child.
D
(2) In matters of custody of minor children, the sole and
predominant criterion is the interest and welfare of
the minor child. 11 Domestic courts cannot be guided
entirely by the fact that one of the parents violated
E an order passed by a foreign court. 12
32. On these facts and applying the principles
mentioned above, this court agreed with the view of the
High Court that the order dated 26111 November, 2008
F passed by the foreign court did not intend to separate the
child from Shilpa Aggarwal until a final decision was taken
with regard to the custody of the child. The child was a
foreign national; both parents had worked for gain in the
U.K. and both had acquired permanent resident status in
G the U.K. Since the foreign court had the most intimate
11 Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42. Even though
this CO.fH! used the word " sole" , it is clear that it did not reject or intend to
reject the principle of comity of courts.
•.
H · 12 Sarita Shan~a v. Sushi! Sharma
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 925
[MADAN B. LOKUR, J.]
contact 13 with the child and the parents, the principle of A
"comity of courts" required that the foreign court would be
the most appropriate court to decide which parent would
be best suited to have custody of the child.
(3) \I. Ravi Chandran v. Union of India B
33. The mother (Vijayasree Voora) had removed her
minor child (a foreign national) from the U.S.A. in violation
of a custody order dated 181h June, 2007 passed by the
Family Court of the State of New York. The custody order c
was passed with her consent and with the consent of the
child's father (Ravi Chandran, also a foreign national).
34. On 81h August, 2007, Ravi Chandran applied for
modification of the custody order and was granted, the
0
same day, temporary sole legal and physical custody of the
minor child and Vijayasree Voora was directed to
immediately turn over the minor child and his passport to
Ravi Chandran and further, her custodial time with the child
was suspended. The foreign court also ordered that the E
issue of custody of the child shall be heard by the
jurisdictional Family Court in the USA.
35. On these broad facts, Ravi Chandran moved a
petition for a writ of habeas corpus in this court for the F
production of the child and for his custody. The child was
produced in this court and the question for consideration
was: "What should be the order in the facts and
circumstances keeping in mind the interest of the child and
the orders of the courts of the country of which the child is G
a national."
36. This court referred to a large number of decisions
13 Surinder Kaur Sandhu v. Harbax Singh Sandhu H
926 SUPREME COURT REPORTS [2015] 4 S.C.R.
A and accepted the following observations, conclusions and
principles:
(1) The comity of nations does not require a court to
blindly follow an order made by a foreign court. 14
B
(2) Due weight should be given to the views formed
by the courts of a foreign country of which the child
is a national. The comity of courts demands not the
enforcement of an order of a foreign court but its
c grave consideration. 15 The weight and persuasive
effect of .a foreign judgment must depend on the
facts and circumstances of each case. 16
(3) The welfare of the child is the first and paramount
consideration, 17 whatever orders may have been
D
passed by the foreign court. 18
(4) The domestic court is bound to consider what is in
the best interests of the child. Although the order of
a foreign court will be attended to as one of the
E circumstances to be taken into account, it is not
conclusive, one way or the other. 19
(5) One of the considerations that a domestic court
must keep in mind is that there is no danger to the
F
14 B's Settlement, In re. B. v. B., 1940 Ch 54: (1951) 1 All ER 949 and McKee
v. McKee
15 McKee v. McKee
G 16 McKee v. McKee
17 McKee v. McKee
18 B's Settlement, In re
19 Kernot v. Kernot, 1965 Ch 217: (1964) 3 WLR 1210: (1964) 3 All ER 339
H
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 927
[MADAN B. LOKUR, J.]
moral or physical health of the child in repatriating A
him or her to the jurisdiction of the foreign country. 20
(6) While considering whether a child should be
removed to the jurisdiction of the foreign court or not,
the domestic court may either conduct a summary B
inquiry or an elaborate inquiry in this regard. In the
event the domestic court conducts a summary
inquiry, it would return the custody of the child to the
country from which the child was removed unless
such return could be shown to be harmful to the C
child. In the event the domestic court conducts an
elaborate inquiry, the court could go into the merits
as to where the permanent welfare of the child lay
and ignore the order of the foreign court or treat the
fact of removal of the child from another country as D
only one of the circumstances. 21 An order that the
child should be returned forthwith to the country from
which he or she has been removed in the
expectation that any dispute about his or her custody
will be satisfactorily resolved in the courts of that E
country may well be regarded as being .in the best
interests of the child.2 2
(7) The modern theory of conflict of laws recognizes
and, in any event, prefers the jurisdiction of the State F
which has the most intimate contact with the issues
arising in the case. Jurisdiction is not attracted by
the operation or creation of fortuitous circumstances
such as the circumstance as to where the child,
G
20 H. (Infants) , In re, (1966) 1 WLR 381 (Ch & CA) : (1966) 1 All ER 886
(CA)
21 L. (Minors), In re, (1974) 1 WLR 250: (1974) 1 All ER 913 (CA)
22 L. (Minors), In re, H
928 SUPREME COURT REPORTS [2015] 4 S.C.R.
A whose custody is in issue, is brought or for the time
being lodged. 23
37. On the facts of the case, it was held that an
elaborate inquiry was not required to be conducted. It was
B also obseNed that there was nothing on record which could
remotely suggest that it would be harmful for the child to
return to his native country. Consequently, this court
directed the repatriation of the child to the jurisdiction of
the foreign court subject to certain directions given in the
C judgment.
38. This court also quoted a passage from Sarita
Sharma to the effect that a decree passed by a foreign
court cannot override the consideration of welfare of a child.
D
(4) Ruchi Majoo v. Sanjeev Majoo
39. Ruchi Majoo (wife) had come to India with her child
consequent to matrimonial differences between her and her
husband (Sanjeev Majoo). All three that is Ruchi Majoo,
E Sanjeev Majoo and their child were foreign nationals.
40. Soon after Ruchi Majoo came to India, Sanjeev
Majoo approached the Superior Court of California, County
of Ventura in the USA seeking a divorce from Ruchi Majoo
F and obtained a protective custody warrant order on 91h
September, 2008 which required Ruchi Majoo to appear
before the foreign court. She did not obey the order of the
foreign court perhaps because she had initiated
proceedings before the Guardian Court at Delhi on 28 1h
G August, 2008. In any event, the Guardian Court passed an
ex-parte ad interim order on 161h September, 2008 (after
the protective custody warrant order passed by the foreign
H 23 Surinder Kaur Sandhu v. Harbax Singh Sandhu
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 929
[MADAN B. LOKUR, J.]
court) to the effect that Sanjeev Majoo shall not interfere A
wit.h the custody of her minor child till the next date of .
hearing.
41. Aggrieved by this order, Rajiv Majoo challenged it
through a petition under Article 227 of the Constitution filed B
in the Delhi High Court. The order of 161h September, 2008
was set aside by the High Court on the ground that the
Guardian Court had no jurisdiction to entertain the
proceedings since the child was not ordinarily resident in
Delhi. It was also held that the issue of the child's custody C
ought to be decided by the foreign court for the reason that
it had already passed the protective custody warrant order
and also becau~e the child and his parents were American
citizens.
D
42. On these broad facts, this court framed three
questions for determination. These questions are as
follows:-
(i) Whether the High Court was justified in dismissing E
the petition for custody of the child on the ground that the
court at Delhi had no jurisdiction to entertain it; (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 of the child to Ruchi Majoo F
calls for any modification in terms of grant of visitation rights
to the father pending disposal of the petition by the trial
court.
43. We are not concerned with the first and the third G
question. As far as the second question is concerned, this
court was of the view that there were four reasons for
answering the question in the negative. Be that as it may,
the following principles were accepted and adopted by this
court: H
930 SUPREME COURT REPORTS [2015] 4 S.C.R.
A (1) The welfare of the child is the paramount
consideration. Sfmply because a foreign court has
taken a particular view on any aspect concerning
the welfare of a child is not enough for the courts
in this country to shut out an independent
B consideration of the matter. The principle of comity
of courts simply demands consideration of an order
passed by a foreign court and not necessarily its
enforcement. 24
c (2) One of the factors to be considered whether a
domestic court should hold a summary inquiry or
an elaborate inquiry for repatriating the child to the
jurisdiction of the foreign court is the time gap in
moving the domestic court for repatriation. The
D longer the time gap, the lesser the inclination of the
domestic courts to go in for a summary inquiry. 25
(3) An order of a foreign court is one of the factors to
be considered for the repatriation of a child to the
E jurisdiction of the foreign court. But that will not
override the consideration of welfare of the child.
Therefore, even where the removal of a child from
the jurisdiction of the foreign court goes against the
orders of that foreign court, giving custody of the
F child to the parent who approached the foreign court
would not be warranted if it were not in the welfare
of the child. 26
(4) Where a child has been removed from the
G jurisdiction of a foreign court in contravention of an
24 Dhanwanli Joshi v. Madhav Unde
25 Dhanwanli Joshi v. Madhav Unde
H 26 Sarita Sharma v. Sushil Sharma
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 931
[MADAN B. LOKUR, J.] ·
order passed by that foreign court where the parties A
had set up their matrimonial home, the domestic
court must consider whether to conduct an
elaborate or summary inquiry on the question of
custody of the child. If an elaborate inquiry is to be
held, the domestic court may give due weight to the B
order of the foreign court depending upon the facts
and circumstances in which such an order has been
passed. 27
(5) A constitutional court exercising summary C
jurisdiction for the issuance of a writ of habeas
corpus may conduct an elaborate inquiry into the
welfare of the child whose custody is claimed and
a Guardian Court (if it has jurisdiction) may conduct
a summary inquiry into the welfare of the child, D
depending upon the facts of the case. 28
(6) Since the interest and welfare of the child is
paramount, a domestic court "is entitled and indeed
duty-bound to examine the matter independently, E
taking the foreign judgment, if any, only as an input
for its final adjudication."
44. On the facts of the case, this court held that
"repatriation of the minor to the United States, on the F
principle of "comity of courts" does not appear to us to be
an acceptable option worthy of being exercised at that
stage." Accordingly, it was held that the "Interest of the
minor shall be better served if he continued to be in the
custody of his mother [Ruchi Majoo]." G
(5) Arathi Bandi v. Bandi Jagadrakshaka Rao
27 V. Ravi Chand ran and Aviral Mittal
28 Dhanwanti Joshi referring to Elizabeth Dinshaw v. Arvand M. Dinshaw H
932 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 45. The facts in this case are a little complicated and
it is not necessary to advert to them in any detail. The
sum and substance was that Arathi Sandi and her husband
Sandi Rao were ordinarily residents of USA and they had
a minor child. There were some matrimonial differences
S between the couple and proceedings in that regard were
pending in a court in Seattle, USA.
46. In violation of an order passed by the foreign court,
Arathi Sandi brought the child to India on 17th July, 2008.
C Since she did not return with the child to the jurisdiction of
the foreign court bailable warrants were issued for her
arrest by the foreign court.
47. On or about 20th November, 2009 Sandi Rao
o initiated proceedings in the Andhra Pradesh High Court for
a writ of habeas corpus seeking production and custody
of the child to enable him to take the child to USA. The
Andhra Pradesh High Court passed quite a few material
orders in the case but Arathi Sandi did not abide by some
E of them resulting in the High Court issuing non-bailable
warrants on 25th January, 2011 for her arrest. This order
and two earlier orders passed by the High Court were then
challenged by her in this court.
F 48. This court observed that Arathi Sandi had come
to India in defiance of the orders passed by the foreign
court and that she also ignored the orders passed by the
High Court. Consequently, this court was of the view that
given her conduct, no relief could be granted to Arathi
G Sandi.
49. This court took into consideration various principles
laid down from time to time in different decisions rendered
by this court with regard to the. custody of a minor child. It
H was held that:
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 933
[MADAN B. LOKUR, J.]
(1) It is the duty of courts in all countries to see that a A
parent doing wrong by removing a child out of the
country does not gain any advantage of his or her
wrong doing. 29
(2) In a given case relating to the custody of a child, it s
may be necessary to have an elaborate inquiry with
regard to the welfare of the child or a summary
inquiry without investigating the merits of the dispute
relating to the care of the child on the ground that
such an order is in the best interests of the child. 3° C
(3) Merely because a child has been brought to India
from a foreign country does not necessarily mean
that the domestic court should decide the custody
issue. It would be in accord with the principle of D
comity of courts to return the child to the jurisdiction
of the foreign court from which he or she has been
removed. 31
Discussion of the law E
50. The principle of the comity of courts is essentially
a principle of self-restraint, applicable when a foreign court
is seized of the issue of the custody of a child prior to
the domestic court. There may be a situation where the F
foreign court though seized of the issue does not pass
any effective or substantial order or direction. In that
• event, if the domestic court were to pass an effective or
substantial order or direction prior in point of time then the
foreign court ought to exercise self-restraint and respect G
29 Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw
30 V. Ravi Chandran v. Union of India
31 V. Ravi Chandran v. Union of India H
934 SUPREME COURT REPORTS [2015] 4 S.C.R.
A the direction or order of the domestic court (or vice versa),
unless there are very good reasons not to do so.
51. From a review of the above decisions, it is quite
clear that there is complete unanimity that the best
B
interests and welfare of the child are of paramount
importance. However, it should be clearly understood that
this is the final goal or the final objective to be achieved
- it is not the beginning of the exercise but the end.
c
52. Therefore, we are concerned with two principles
in a case such as the present. They are (i) The principle
of comity of courts and (ii) The principle of the best
interests and the welfare of the child. These principles
0
have been referred to "contrasting principles of law" 32 but
they are not 'contrasting' in the sense of one being the
opposite of the other but they are contrasting in the sense
of being different principles that need to be applied in the
E facts of a given case.
32 Shilpa Aggarwal v. Aviral Mittal (a) where it has not been pronounced by
F a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(cMINHAIE/2015101302) where it appears on the face of the proceedings to
be founded on an incorrect view of international law or a refusal to recognise
G the law of India in cases in which such law is applicable;
(cf) where the proceedings in which the judgment was obtained are opposed
to natural justice;
(e) where it has been obtained by fraud;
H (/) where it sustains a claim founded on a breach of any law in force in India.
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 935
[MADAN B. LOKUR, J.]
53. What then are some of the key circumstances A
and factors to take into consideration for reaching this final
goal or final objective? First, it must be appreciated that
the "most intimate contact" doctrine and the "closest
concern" doctrine of Surinder Kaur Sandhu are very B
much alive and cannot be ignored only because their
application might be uncomfortable in certain situations. It
is not appropriate that a domestic court having much less
intimate contact with a child and having much less close C
concern with a child and his or her parents (as against a
foreign court in a given case) should take upon itself the
onerous task of determining the best interests and welfare
of the child. A foreign court having the most intimate
contact and the closest concern with the child would be D
better equipped and perhaps best suited to appreciate the
social and cultural milieu in which the child has been
brought up rather than a domestic court. This is a factor
that must be kept in mind. E
54. Second, there is no reason why the principle of
"comity of courts" should be jettisoned, except for special
and compelling reasons. This is more so in a case where
only an interim or an interlocutory order has been passed F
by a foreign court (as in the present case). In McKee
which has been referred to in several decisions of this
court, the Judicial Committee of the Privy Council was not
dealing with an interim or an interlocutory order but a final G
adjudication. The applicable principles are entirely different
in such cases. In this appeal, we are not concerned with
a final adjudication by a foreign court - the principles for
dealing with a foreign judgment are laid down in Section H
936 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 13 of the Code of Civil Procedure. 33
In passing an interim or an interlocutory order, a
foreign court is as capable of making a prima facie fair
adjudication as any domestic court and there is no reason
B to undermine its competence or capability. If the principle
of comity of courts is accepted, and it has been so
accepted by this court, we must give due respect even to
such orders passed by a foreign court. The High Court
misdirected itself by looking at the issue as a matter of
C legal rights of the parties. Actually, the issue is of the legal
obligations of the parties, in the context of the order
passed by the foreign court.
55. If an interim or an interlocutory order passed by
D a foreign court has to be disregarded, there must be
some special reason for doing so. No doubt we expect
foreign courts to respect the orders passed by courts in
India and so there is no justifiable reason why domestic
E 33 13. When foreign judgment not conclusive.-A foreign judgment shall
be conclusive as to any matter thereby directly adjudicated upon between
the same parties or between parties under whom they or any of them claim
litigating under the same title except-
F (a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an
incorrect view of international law or a refusal to recognise the law of India in
G cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed
to natural justice;
(e) where it has been obtained by fraud;
H (f) where it sustains a claim founded on a breach of any law in force in India.
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 937
[MADAN B. LOKUR, J.]
courts should not reciprocate and respect orders passed A
by foreign courts. This issue may be looked at from
another perspective. If the reluctance to grant respect to
an interim or an interlocutory order is extrapolated into the
domestic sphere, there may well be situations where a
Family Court in one State declines to respect an interim B
or an interlocutory order of a Family Court in another State
on the ground of best interests and welfare of the child.
This may well happen in a case where a person ordinarily
resident in one State gets married to another person
ordinarily resident in .another State and they reside with C
their child in a third State. In such a situation, the Family
Court having the most intimate contact and the closest
concern with the child (the court in the third State) may
find its orders not being given due respect by a Family
0
Court in the first or the second State. This would clearly
be destructive of the equivalent of the principle of comity
of courts even within the country and, what is worse,
destructive of the rule of law.
56. What are the situations in which an interim or an E
interlocutory order of a foreign court may be ignored? There
are very few such situations. It is of primary importance to
determine, prima facie, that the foreign court has jurisdiction
over the child whose custody is in dispute, based on the F
fact of the child being ordinarily resident in the territory over
which the foreign court exercises jurisdiction. If the foreign
court does have jurisdiction, the interim or interlocutory
order of the foreign court should be !;liven due weight and
respect. If the jurisdiction of the foreign court is not in doubt, G
the "first strike" principle would be applicable. That is to
say that due respect and weight must be given to a
substantive order prior in point of time to a substantive
order passed by another court (foreign or domestic).
H
.-
938 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 57. There may be a case, as has happened in the
present appeal, where one parent invokes the jurisdiction
of a court but does not obtain any substantive order in his
or her favour and the other parent invokes the jurisdiction
of another court and obtains a substantive order in his or
B her favour before the first court. In such an event, due
respect and weight ought to be given to the substantive
order passed by the second court since that interim or
interlocutory order was passed prior in point of time. As
mentioned above. this situation has arisen in the present
C appeal - Mayura had initiated divorce proceedings in India
before the custody proceedings were initiated by Surya in
the U.K. but the foreign court passed a substantive order
on the custody issue before the domestic court. This
situation also arose in Ruchi Majoo where Ruchi Majoo
0
had invoked the jurisdiction of the domestic court before
Rajiv Majoo but in fact Rajiv Majoo obtained a substantive
order from the foreign court before the domestic court.
While the substantive order of the foreign court in Ruchi
E Majoo was accorded due respect and weight but for
reasons not related to the principle of comity of courts and
on merits, custody of the child was handed over to Ruchi
Majoo, notwithstanding the first strike principle.
58. As has been held in Arathi Bandi a violation of
F
an interim or an interlocutory order passed by a court of
competent jurisdiction ought to be viewed strictly if the rule
of law is to be maintained. No litigant can be permitted to
defy or decline adherence to an interim or an interlocutory
G order of a court merely because he or she is of the opinion
that that order is incorrect - that has to be judged by a
superior court or by another court having jurisdiction to do
so. It is in this context that the observations of this court in
Sarita Sharma and Ruchi Majoo have to be appreciated.
H If as a general principle, the violation of an interim or an
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 939
[MADAN B. LOKUR, J.]
interlocutory order is not viewed seriously, it will have A
widespread deleterious effects on the authority of courts
to implement their interim or interlocutory orders or compel
their adherence. Extrapolating this to the courts in our
country, it is common knowledge that in cases of
matrimonial differences in our country, quite often more B
than one Family Court has jurisdiction over the subject
matter in issue. In such a situation, can a litigant say that
he or she will obey the interim or interlocutory order of a
particular Family Court and not that of another? Similarly,
can one Family Court hold that an interim or an C
interlocutory order of another Family Court on the same
subject matter may be ignored in the best interests and
welfare of the child? We think not. An interim or an
interlocutory is precisely what it is - interim or interlocutory
0
- and is always subject to modification or vacation by the
court that passes that interim or interlocutory order. There
is no finality attached to an interim or an interlocutory order.
We may add a word of caution here - merely because a
parent has violated an order of a foreign court does not E
mean that that parent should be penalized for it. The
conduct of the parent may certainly be taken into account
for passing a final order, but that ought not to have a
penalizing result.
F
59. Finally, this court has accepted the view 34 that in a
given case, it might be appropriate to have an elaborate
inquiry to decide whether a child should be repatriated to
the foreign country and to the jurisdiction of the foreign
court or in a given case to have a summary inquiry without G
going into the merits of the dispute relating to the best
interests and welfare of the child and repatriating the child
to the foreign country and to the jurisdiction of the foreign
34 L. (Minors), In re, H
940 SUPREME COURT REPORTS [2015] 4 S.C.R.
A court.
60. However, if there is a pre-existing order of a foreign
court of competent jurisdiction and the domestic court
decides to conduct an elaborate inquiry (as against a
B summary inquiry}, it must have special reasons to do so.
An elaborate inquiry should not be ordered as a matter of
course. While deciding whether a summary or an elaborate
inquiry should be conductesJ, the domestic court must take
into consideration:
c
(a) The nature and effect of the interim or interlocutory
order passed by the foreign court.
(b) The existe-.nce of special reasons for repatriating or
not repatriating the child to the jurisdiction of the
D
foreign court.
(c) The repatriation of the child does not cause any
moral or physical or social or cultural or
psychological harm to the child, nor should it cause
E any legal harm to the parent with whom the child
is in India. There are instances where the order of
the foreign court may result in the arrest of the
parent on his or her return to the foreign country. 35
In such cases, the domestic court is also obliged
F
to ensure the physical safety of the parent.
(d) The alacrity with which the parent moves the
concerned foreign court or the concerned domestic
·court is also relevant. If the time gap is unusually
G large and is not reasonably explainable and the
child has developed firm roots in India, the domestic
court may be well advised to conduct an elaborate
H 35 Arathi Sandi
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 941
[MADAN B. LOKUR, J.]
inquiry. A
Discussion on facts
61. The facts in this appeal reveal that Surya and
Mayura are citizens of the U.K. and their children are also
8
citizens of the U.K.; they (the parents) have been residents
of the U.K. for several years and worked for gain over
there; they also own immovable property Oointly) in the
U.K.; their children were born and brought up in the U.K.
in a social and cultural milieu different from that of India c
and they have grown up in that different milieu; their elder
daughter was studying in a school in the U.K. until she was
brought to India and the younger daughter had also joined
a school in the U.K. meaning thereby that their exposure
to the education system was different from the education D
system in lndia. 36 The mere fact that the children were
admitted to a school in India, with the consent of Surya is
not conclusive of his consent to the permanent or long term
residence of the children in India. It is possible, as
explained by his learned counsel, that he did not want any E
disruption in the education of his children and that is why
he consented to the admission of the children in a school
in India. This is a possible explanation and cannot be
rejected outright.
F
62. Mayura has not taken a'ny steps to give up her
foreign citizenship and to acquire Indian citizenship. She
has taken no such steps even with respect to her children.
Clearly, she is desirous of retaining her foreign citizenship
at the cost of her Indian citizenship and would also like her G
children to continue with their foreign citizenship, rather than
36 In our order dated 9th July, 2014 we have noted that according to Mayura
the children are attending some extra classes. This is perhaps to enable them
to adjust to the education system and curriculum in India. H
942 SUPREME COURT REPORTS [2015] 4 S.C.R.
A take Indian citizenship. That being the position, there is no
reason why the courts in India should not encourage her
and the children to submit to the jurisdiction of the foreign
court which has the most intimate contact with them and
closest concern apart from being located in the country of
B their citizenship. The fact that Mayura is of Indian origin
cannot be an overwhelming factor.
63. Though Mayura filed proceedings for divorce in
India way back in August 2012, she made no serious effort
C to obtain any interim order in her favour regarding the
custody of the children, nor did she persuade the trial court
for more than two years to pass an interim order for the
custody of the children. On the other hand, the foreign
court acted promptly on the asking of Surya and passed
D an interim order regarding the custody of the children,
thereby making the first strike principle applicable.
64. It would have been another matter altogether if the
Family Court had passed an effective or substantial order
E or direction prior to 131h November, 2012 then, in our view,
the foreign court would have had to consider exercising
self-restraint and abstaining from disregarding the direction
or order of the Family Court by applying the principle of
comity of courts. However, since the first effective order or
F direction was passed by the foreign court, in our opinion,
principle of comity of courts would tilt the balance in favour
of that court rather than the Family Court. We are·
assuming that the Family Court was a court of competent
jurisdiction although we must mention that according to
G Surya, the Family Court has no jurisdiction over the matter
of the custody of the two children of the couple since they
are both British citizens and are ordinarily residents of the
U.K. However, it is not necessary for us to go into this
H issue to decide this because even on first principles, we
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 943
[MADAN 8. LOKUR, J.]
are of the view that the orders or directions passed by the A
foreign court must have primacy on the facts of the case,
over the Family Court in Coimbatore. No specific or
meaningful reason has been given to us to ignore or
bypass the direction or order of the foreign court.
B
65. We have gone through the orders and directions
passed by the foreign court and find that there is no final
determination on the issue of custody and what the foreign
court has required is for Mayura to present herself before
it along with the two children who are wards of the foreign C
court and to make her submissions. The foreign court has
not taken any final decision on the custody of the children.
It is quite possible that the foreign court may come to a
conclusion, after hearing both parties that the custody of
the children should be with Mayura and that they should D
be with her in India. The foreign court may also come to
the conclusion that the best interests and welfare of the
children requires that they may remain in the U.K. either
under the custody of Surya or Mayura or their joint custody
or as wards of the court during their minority. In other E
words, there are several options before the foreign court
and we cannot jump the gun and conclude that the foreign
court will not come to a just and equitable decision which
would be in the best interests and welfare of the two F
children of the couple.
66. The orders passed by the foreign court are only
interim and interlocutory and no finality is attached to them.
Nothing prevents Mayura from contesting the correctness
of the interim and interlocutory orders and to have them G
vacated or modified or even set aside. She has taken no
such steps in this regard for over two years. Even the later
order passed by the foreign court is not final and there is
no reason to believe that the foreign court will not take all H
944 SUPREME COURT REPORTS [2015] 4 S.C.R.
A relevant factors and circumstances into consideration
before taking a final view in the matter of the custody of
the children. The foreign court may well be inclined, if the
facts so warrant, to pass an order that the custody of the
children should be with Mayura in India.
B
67. There is also nothing on the record to indicate that
any prejudice will be caused to the children of Mayura and
Surya if they are taken to the U.K. and subjected to the
jurisdiction of the foreign court. There is nothing to suggest
C that they will be prejudiced in any manner either morally
or physically or socially or culturally or psychologically if they
continue as wards of the court until a final order is passed
by the foreign court. There is nothing to suggest that the
foreign court is either incompetent or incapable of taking a
D reasonable, just and fair decision in the best interests of
the children and entirely for their welfare.
68. There is no doubt that the foreign court has the
most intimate contact with Mayura and her children and
E also the closest concern with the well being of Mayura,
Surya and their children. That being the position even
though Mayura did not violate any order of the foreign court
when she brought her children to India, her continued
refusal-to abide by the interim and interlocutory order of
F the foreign court is not justified and it would be certainly in
the best interests and welfare of the children if the foreign
court, in view of the above, takes a final decision on the
custody of the children at the earliest. The foreign court
undoubtedly has the capacity to do so.
G
69. We have considered the fact that the children have
been in Coimbatore since August 2012 for over two years.
The question that arose in our minds was whether the
children had adjusted to life in India and had taken root in
H India and whether, under the circumstances, it would be
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 945
[MADAN B. LOKUR, J.]
appropriate to direct their repatriation to the U.K. instead A
of conducting an elaborate inquiry in India. It is always
difficult to say whether any person has taken any root in a
country other than that of his or her nationality and in a
country other than where he or she was born and brought
up. From the material on record, it cannot be said that life B
has changed so much for the children that it would be
better for them to remain in India than to be repatriated to
the U.K. The facts in this case do not suggest that because
of their stay in India over the last two years the children
are not capable of continuing with their life in the U.K. C
should that become necessary. However, this can more
appropriately be decided by the foreign court after taking
all factors into consideration.
70. It must be noted at this stage that efforts were D
made by this court to have the matter of custody settled in
an amicable manner, including through mediation, as
recorded in a couple of orders that have been passed by
this court. Surya had also agreed to and did temporarily
shift his residence to Coimbatore and apparently met the E
children. However, in spite of all efforts, it was not possible
to amicably settle the issue and the mediation centre
attached to this court gave a report that mediation between
the parties had failed. This left us with no option but to F
hear the appeal on merits.
71. Given these facts and the efforts made so far, in
our opinion, there is no reason to hold any elaborate inquiry
as postulated in L. (Minors) - this elaborate inquiry is best
left to be conducted by the foreign court which has the most G
intimate contact and the closest concern with the children.
We have also noted that Surya did not waste any time in
moving the foreign court for the custody of the children.
He moved the foreign court as soon as he became aware H
946 SUPREME COURT REPORTS [2015] 4 S.C.R.
A (prior to the efforts made by this court) that no amicable
solution was possible with regard to the custody of the
children.
72. We are conscious that it will not be financially easy
B for Mayura to contest the claim of her husband Surya for
the custody of the children. Ther~fore, we are of the opinion
that some directions need to be given in favour of Mayura
to enable her to present an effective case before the foreign
court.
c
73. Accordingly, we direct as follows:-
(1) Since the children Sneha Lakshmi Vadanan and
Kamini Lakshmi Vadanan are presently studying in
a school in Coimbatore and their summer vacations
D
commence (we are told) in May, 2015 Mayura
Vadanan will take the children to the U.K. during
the summer vacations of the children and comply
with the order dated 291h November, 2012 and
E participate (if she so wishes) in the proceedings
pending in the High Court of Justice. Surya
Vadanan will bear the cost of litigation expenses of
Mayura Vadanan.
(2) Surya Vadanan will pay the air fare or purchase the
F
tickets for the travel of Mayura Vadanan and the
children to the U.K. and later, if necessary, for their
return to India. He shall also make all arrangements
for their comfortable stay in their matrimonial home,
G subject to further orders of the High Court of
Justice.
(3) Surya Vadanan will pay maintenance to Mayura
Vadanan and the children at a reasonable figure to
be decided by the High Court of Justice or any other
H
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 947
[MADAN B. LOKUR, J.]
court having jurisdiction to take a decision in the A
matter. Until then, and to meet immediate out of
pocket expenses, Surya Vadanan will give to
Mayura Vadanan prior to her departure from India
an amount equivalent to £1000 (Pounds one
thousand only). B
(4) Surya Vadanan shall ensure that all coercive
processes that may result in penal consequences
against Mayura Vadanan are dropped or are not
pursued by him. C
(5) In the event Mayura Vadanan does not comply with
the directions given by us, Surya Vadanan will be
entitled to take the children with him to the U.K. for
further proceedings in the High Court of Justice. To o
enable this, Mayura Vadanan will deliver to Surya
Vadanan the passports of the children Sneha
Lakshmi Vadanan and Kamini Lakshmi Vadanan.
74. The appeal is disposed of on the above terms. E
Kalpana K. Tripathy Appeal disposed of.
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