SURYA VADANAN V. STATE OF TAMIL NADU & ORS AIR 2015 SCC 2243
FACTS
Surya Vadanan and Mayura Vadanan were married in Chennai on 27th January 2000. While both are of Indian origin, Surya is a resident and citizen of the UK, and Mayura was a resident and citizen of India at the time of their marriage.
After the marriage, Mayura joined Surya in the UK in March 2000. Later, she acquired British citizenship in February 2004. The couple has two daughters: Sneha Lakshmi Vadanan, born on 23rd September 2004, and Kamini Lakshmi Vadanan, born on 21st September 2008, both in the UK and British citizens by birth.
On 13th August 2012, Mayura left the UK with their daughters and moved to her parents’ house in Coimbatore, Tamil Nadu. Upon arrival in India, Mayura filed a petition for divorce under Section 13(1) (i-a) of the Hindu Marriage Act, 1955, in the Family Court in Coimbatore on 23rd August 2012. She also filed an application for custody of the children, though no orders were passed on this application.
Surya went to Coimbatore on 27th August 2012 to resolve differences with Mayura and stayed with her and their daughters at her parents' house, unaware of the divorce petition. The children were admitted to a school in Coimbatore with Surya’s consent. Surya received a summons from the Family Court in Coimbatore on 16th October 2012, and the divorce proceedings were ongoing with no substantial orders passed.
Surya petitioned the UK High Court of Justice on 8th November 2012 to make the children wards of the court due to their unauthorized departure from their UK school. The court granted the petition on 13th November 2012 and ordered the children to return to the UK by 27th November 2012, with a request for assistance from UK and Indian authorities.
In February 2013, Surya filed a writ petition (HCP No. 522 of 2013) in the Madras High Court for a writ of habeas corpus, alleging illegal custody by Mayura. On November 4, 2013, the Madras High Court dismissed the petition, emphasizing the welfare of the children over legal custodial rights and noting that Surya had access to the children during weekends and the UK court's orders had been complied with.
Surya appealed to the Supreme Court of India on or about 9th April 2014, challenging the High Court's decision.
ISSUE
The central issue before the court revolved around determining the custody arrangements, financial responsibilities, and enforcement measures concerning the children’s welfare amidst parental disputes and foreign legal judgments.
RULE
Comity of Courts: Foreign courts’ orders should be respected unless there are compelling reasons not to do so.
The ultimate goal is ensuring the child’s welfare.
HELD
The Supreme Court noted that if there is an existing order from a foreign court of competent jurisdiction, and a domestic court opts for an extensive inquiry (as opposed to a summary inquiry), it must provide special reasons for doing so.
If the foreign court's jurisdiction is unquestionable, the "first strike" principle applies, meaning that a substantive order issued earlier should be respected and given due weight over a subsequent order from another court, whether foreign or domestic.
An elaborate inquiry should not be standard practice. When deciding whether to conduct a summary or an elaborate inquiry, the domestic court must consider the following:
The nature and impact of the interim or interlocutory order issued by the foreign court.
The presence of special reasons for either repatriating or not repatriating the child to the foreign court's jurisdiction.
Ensuring that repatriation does not cause any moral, physical, social, cultural, or psychological harm to the child, nor should it result in any legal harm to the parent with whom the child is in India. For example, the domestic court must ensure the parent's physical safety if the foreign court's order could lead to the parent's arrest upon returning to the foreign country. [Arathi Bandi v Bandi Jagadrakshaka Rao, (2013) 15 SCC 790: LNIND 2013 SC 671 : (2014) 5 SCC (Civ) 475]
The promptness with which the parent approaches either the foreign or domestic court is also significant. If there is an unusually long and unexplained delay, and the child has established firm roots in India, the domestic court might be better advised to conduct an extensive inquiry.
The foreign court issued a custody order before the domestic court. The mother's delayed request for interim custody orders in India suggests a lack of urgency.
The foreign court, which has the closest connection, is better suited to decide on the children’s welfare. The foreign court orders are interim and subject to change, and the mother can contest these orders in the foreign court.
Directions Given by the Court
The mother should take the children to the UK during their summer vacation to comply with the foreign court’s order.
The father will bear the litigation expenses, travel costs, and make arrangements for their stay in the UK.
The father will provide an initial £1000 for expenses and ensure maintenance is decided by the foreign court.
The father will ensure no coercive actions with penal consequences are pursued against the mother.
If the mother does not comply, the father can take the children to the UK, and she must hand over their passports.
The appeal was resolved based on these terms, prioritizing the jurisdiction and decision-making capacity of the foreign court.
COMMENTARY
However, this decision was overruled by a three judge bench in Nithya Anand Raghavan v State (NCT of Delhi). The application of the first strike principle enunciated in Surya Vadananwas specifically disapproved by observing as under:
The invocation of first strike principle as a decisive factor, in our opinion, would undermine and whittle down the wholesome principle of the duty of the court having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance. If the court is convinced in that regard, the fact that there is already an order passed by a foreign court in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration. The interests and welfare of the child are of paramount consideration.
The court began by observing that the that the concept of forum convenience had no place in wardship jurisdiction. Speaking for the court Khanwilkar J outlined the scope of the writ of habeas corpusin a custody proceeding between spouses in the following terms:
In a habeas corpus petition as aforesaid, the high court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child.