RUCHI MAJOO V. SANJEEV MAJOO AIR 2011 SC 1952
FACTS
- The case involves a legal battle for the custody of an 11-year-old child, Kush.
- Kush was born in America and is a U.S. citizen.
- The father, the respondent in this appeal, filed for divorce and custody in an American court.
- The Superior Court of California, County of Ventura, issued an order leading to a red corner notice against the mother for child abduction.
- The mother, also of Indian origin, resides with her parents in Delhi.
- The Addl. District Court at Delhi granted interim custody of Kush to the mother on April 4, 2009, under the Guardians and Wards Act.
- The father filed a petition under Article 227 of the Constitution of India before the High Court of Delhi.
- The High Court of Delhi set aside the Addl. District Court's order and dismissed the mother’s custody case, citing lack of jurisdiction as Kush was not ordinarily residing in Delhi.
- The High Court ruled that custody issues should be decided by the American court, considering all parties were American citizens and citing the principle of comity of courts.
- The present appeal is against HC judgment.
ISSUES
- Jurisdiction: Whether the High Court was justified in dismissing the custody petition on the grounds that the Delhi court lacked jurisdiction.
- Comity of Courts: Whether the High Court correctly declined to exercise jurisdiction based on the principle of comity of courts.
- Whether the order granting interim custody to the mother should be modified to grant visitation rights to the father pending the trial court's decision.
RULE
- Indian courts have jurisdiction under the doctrine of “comity of courts” to entertain petitions even if a foreign court has already passed a decree or order. In matters concerning the welfare of minors.
HELD
- The court examined the expression "ordinarily resides" to determine the jurisdiction.
- Kuldip Nayar and Ors. v. Union of India and Ors. (2006) MANU/SC/3865/2006: 2006 (7) SCC 1 The case interpreted "ordinary residence" in the context of the Representation of People Act, 1950. The Supreme Court emphasized that the term "ordinarily" directs not to the duration but to the purpose of residence, implying a general and habitual residence rather than a special or limited one.
- Various definitions and case laws were considered to understand "ordinary residence," which is primarily a question of intention and fact, indicating a regular, settled, and habitual residence.
- The respondent's claim of duress and coercion was unsupported by evidence, as the respondent chose not to provide evidence to substantiate his claims. Indicating that the decision to stay in Delhi and enroll the minor in school there was consensual.
- Based on the available material, including the respondent's letter and subsequent emails, the court concluded that the minor was ordinarily residing in Delhi.
- Consequently, the Delhi court has jurisdiction to entertain the custody petition under Section 9(1) of the Guardian and Wards Act, 1890.
- The court emphasized that the principle of comity of courts does not mean that foreign judgments and orders are automatically conclusive in India. In matters concerning the welfare of minors, Indian courts must independently examine the issue, considering foreign judgments only as one of many factors.
- The child had been living in India and attending a reputable school in Delhi for nearly three years. The court observed that the child appeared happy and settled in his current environment, expressing no desire to return to America.
- Considering the child's current settled life, his lack of interest in returning to America, and the respondent's remarriage, the court found that repatriating the child to the United States was not a suitable option. The High Court's dismissal of the custody application based on comity of courts was deemed improper.
- The Delhi Court did not provide visitation rights for the father in its interim custody order.
- The court emphasized that both parents' involvement is crucial for the child's healthy development.
- The child was influenced to dislike the father, which the court criticized, stressing the father's role in the child's development.
- The court instructed the mother to allow and encourage telephonic and video contact between the father and the child.
- Appeal Allowed, setting aside the High Court's order.
- Interim custody with the mother affirmed, with specified visitation rights for the father.
COMMENTARY
- 13. When foreign judgment not conclusive.
- Applying the principle laid down in V. Ravi Chandran,893 the Supreme Court has reiterated that in cases pertaining to custody of children where there is conflict of laws in private international law of two sovereign States, the jurisdiction of the State which has the most intimate contact with the issues arising shall be preferred.894 In V. Ravi Chandran, the petitioner, who was of Indian origin, was a citizen of USA. He married and had a child while the couple was in USA.
- Subsequently, a dispute arose between the parties regarding custody of the child, and the parties obtained consent order from the court of competent jurisdiction in USA under which both the parents were to have alternate custody of the child on weekly basis.
- However, the mother, in violation of the said court’s orders, removed the child to India for staying with her parents. The petitioner in turn moved the USA court for modification of custody order and for taking action against mother for violation of court order. The petitioner was granted temporary sole legal and physical custody of the minor child and mother was directed to immediately turn over the minor child and his passport to the petitioner.
- The order could not however be implemented in the USA because of removal of the child to India. The petitioner thereafter filed habeas corpus petition under Article 32 of the Constitution in the Supreme Court for production of the minor child and for handing over his custody to the petitioner along with the child’s passport.
- The Supreme Court specifically approved the modern theory of conflict of laws, which prefers the jurisdiction of the State which has the “most intimate contact with the issues arising in the case”. The court also held that jurisdiction is not attracted “by the operation or creation of fortuitous circumstances”.
- It was held that it would be in accord with the principles of comity as well as on facts to return the child back to the USA from where he had been removed and enable the parties to establish the case before the courts there for modification of the existing custody orders.