Foreign Court Child Custody order in India.
* IN THE
HIGH COURT OF DELHI AT NEW DELHI
+
W.P.(Crl.) 494/2010
SURJEET
SINGH ..... Petitioner
versus
STATE
& ANOTHER ..... Respondents
Advocates
who appeared in this case:
For the
Petitioner : Mr. Arunav Patnaik & Mr. D.B.Ray For the Respondent : Mr.
Ravinder Singh for R-2
CORAM:
HON'BLE
MR. JUSTICE BADAR DURREZ AHMED
HON'BLE
MR. JUSTICE V.K.JAIN
V.K.
JAIN, J.
This is a
petition under Article 226 of the Constitution of India seeking
issuance
of a writ/order/direction in the nature of habeas corpus to the respondents
to
produce minor children viz. Jasmine Kaur and Vaani Kaur, daughters of the
petitioner
before this Court and giving their custody to him.
Respondent
No.2 before this Court Mrs. Harpreet Kaur is the wife of the
petitioner
and their marriage was solemnized in India on 17.11.2003. The
petitioner
was a permanent resident of New Zealand prior to his marriage. In
February,
2004, both of them came to live in New Zealand. Respondent No.2 also
acquired
permanent residency of New Zealand in the year 2006. The petitioner
W.P(Crl.)
494/2010 Page 1 of 29 became a New Zealand citizen in March, 2008. Both the
children were born in
New
Zealand and consequently acquired citizenship of that country.
The
petitioner, respondent No.2 as well as both their children came to India
on
6.3.2009. The petitioner had planned to return to New Zealand on 10.4.2009,
whereas
respondent No.2 was to return on 12.6.2009 along with both the children.
It is
alleged that respondent No.2 refused to return to New Zealand and also
retained
the custody of the children with her, in India. On 25.2.2010 the petitioner
preferred
a petition before the High Court of New Zealand under the provisions of
Care of
Children Act, 2004, for placing his minor children under the guardianship
of the
Court at New Zealand. Vide order dated 12.3.2010, the High Court of New
Zealand
directed that both the children be placed under the guardianship of that
Court.
Respondent No.2 was directed to ensure that the children were returned to
the
jurisdiction of New Zealand court within two weeks. Since respondent No.2
did not
comply with the order passed by the New Zealand court, this petition has
been
filed seeking production and custody of the children.
2. The
petition has been opposed by respondent No.2. In her counter-affidavit
she has
alleged that she apprehends danger/threat to her life and lives of her
children,
if she goes to New Zealand. She also fears harassment by the petitioner,
who is
alleged to be violent by nature and guilty of treating her with utmost cruelty
on
numerous occasions. She has also submitted that the children are not in
W.P(Crl.)
494/2010 Page 2 of 29 wrongful custody, she being their mother and having
lawfully brought them to
India
along with the petitioner. It has been pointed out that this is not a case
where
children
have been brought to India in disobedience of an order of the foreign
court. It
is further submitted that the children being girls of tender age and
respondent
No.2, being their mother, the respondent No.2 is in a better position to
take care
of them. Referring to the e-mails sent by the petitioner to her and the
telephonic
conversation between them, respondent No.2 has alleged that in the light
of his
behavior, the petitioner is not entitled to any relief from this Court.
3. It is
an undisputed fact that both the children were brought to India jointly by
the petitioner
and respondent No.2. It is also not in dispute that when the petitioner
left for
New Zealand, respondent No.2 as well as children stayed back in India with
his
consent though they were scheduled to return to New Zealand on 12.6.2009 and
their
air-tickets for the travel had been booked in advance. The elder daughter viz.
Jasmine
Kaur was born on 16.9.2004 and the younger child Vaani Kaur was born
on
3.1.2008. Both these children were less than 5 years old when they were
brought
to India on 6.3.2009. Even as on today, Jasmine Kaur is about 7 ½ years
old,
whereas Vaani Kaur is about 04 years old. Section 6 of Hindu Minority and
Guardianship
Act, 1956 which applies to the parties, to the extent it is relevant,
provides
that the custody of a minor child, who has not completed the age of 05
years
shall ordinarily be with the mother. Hence, on the date these children were
W.P(Crl.)
494/2010 Page 3 of 29 brought to India, respondent No.2 being their mother, was
lawfully entitled to their
custody.
She continues to be entitled to the custody of Vaani Kaur, who is less
than 05
years old. Section 13(2) of the Act provides that no person shall be
entitled
to the guardianship by virtue of provisions of this Act or of any law
relating
to guardianship in marriage among Hindus, if in the opinion of the Court,
his or
her guardianship will not be for the welfare of the minor. Though the natural
guardians
are enumerated in Section 6 the right is not absolute and the Court has to
give
paramount consideration to the welfare of the minor.
Supreme
Court dealing with a habeas corpus seeking custody of minor children,
inter
alia, observed as under:-
"11.
From the principles laid down in the aforementioned cases it is clear that in
an application seeking a writ of Habeas Corpus for custody of minor children
the
principal
consideration for the Court is to ascertain whether the custody of the children
can be said to be unlawful or illegal and whether the welfare of the
children
requires that present custody should be changed and the children should be left
in care and custody of somebody else. The principle is well settled that in a
matter of custody of a child the welfare of the child is of paramount
consideration of the Court."
Court
quoted with approval the following statement of law in America with respect
to the
custody of a child in a habeas corpus matter:
W.P(Crl.)
494/2010 Page 4 of 29 "Generally, where the writ of habeas corpus is
prosecuted for the purpose of determining the right to custody of a child, the
controversy does not involve the question of personal freedom, because an
infant is presumed to be in the custody of someone until it attains its
majority. The Court, in passing on the writ in a child custody case, deals with
a matter of an equitable nature, it is not bound by any mere legal right of
parent or guardian, but is to give his or her claim to the custody of the child
due weight as a claim founded on human nature and generally equitable and just.
Therefore, these cases are decided, not on the legal right of the petitioner to
be relieved from unlawful imprisonment or detention, as in the case of an
adult, but on the Court's view of the best interests of those whose welfare
requires that they be in custody of one person or another; and hence, a court
is not bound to deliver a child into the custody of any claimant or of any
person, but should, in the exercise of a sound discretion, after careful
consideration of the facts, leave it in such custody as its welfare at the time
appears to require. In short, the child's welfare is the supreme consideration,
irrespective of the rights and wrongs of its contending parents, although the
natural rights of the parents are entitled to consideration.
An
application by a parent, through the medium of a
habeas
corpus proceeding, for custody of a child is
addressed
to the discretion of the court, and custody may be withheld from the parent
where it is made clearly to appear that by reason of unfitness for the trust or
of other sufficient causes the permanent interests of the child would be
sacrificed by a change of custody. In
determining
whether it will be for the best interest of a child to award its custody to the
father or mother, the Court may properly consult the child, if it has
sufficient judgment.
(emphasis
supplied)"
W.P(Crl.)
494/2010 Page 5 of 29 With respect to the principle of comity of Courts, the
Supreme Court in a
observed
and held as under:
"47........Welfare
of the minor in such cases being the paramount consideration; the court has to
approach the issue regarding the validity and enforcement of a foreign decree
or order carefully. Simply because a foreign court has taken a particular view
on any aspect concerning the welfare of the minor is not enough for the courts
in this country to shut out an independent consideration of the matter.
Objectivity and not abject surrender is the mantra in such cases. That does
not, however, mean that the order passed by a foreign court is not even a
factor to be kept in view. But it is one thing to consider the foreign judgment
to be conclusive and another to treat it as a factor or consideration that
would go into the making of a final decision......
58.
Proceedings in the nature of Habeas Corpus are
summary
in nature, where the legality of the detention of the alleged detente is
examined on the basis of affidavits placed by the parties. Even so, nothing
prevents the High Court from embarking upon a detailed enquiry in cases where
the welfare of a minor is in question, which is the paramount consideration for
the Court while exercising its parens patriae jurisdiction. A High Court may,
therefore,
invoke its extra ordinary jurisdiction to determine the validity of the
detention, in cases that fall within its jurisdiction and may also issue orders
as to custody of the minor depending upon how the court
views the
rival claims, if any, to such custody.
59. The
Court may also direct repatriation of the minor child for the country from
where he/she may have been removed by a parent or other person; as was directed
by this Court in Ravi Chandran's & Shilpa Aggarwal's cases
W.P(Crl.)
494/2010 Page 6 of 29 or refuse to do so as was the position in Sarita Sharma's
case. What is important is that so long as the alleged detenue is within the
jurisdiction of the High Court no question of its competence to pass
appropriate orders arises. The writ court's jurisdiction to make appropriate
orders regarding custody arises no sooner it is found that the alleged detenue
is within its territorial jurisdiction.
63.......
What needs to be examined is whether the High Court was right in relying upon
the principle of comity of courts and dismissing the application. Our answer is
in the negative. The reasons are not far to seek. The first and foremost of
them being that `comity of courts'
principle
ensures that foreign judgments and orders are unconditionally conclusive of the
matter in controversy. This is all the more so where the courts in this country
deal with matters concerning the interest and welfare of minors including their
custody. Interest and welfare of the minor being paramount, a competent court
in this country is entitled and indeed duty bound to examine the matter
independently, taking the foreign judgment, if any, only as an input for its
final adjudication. Decisions of this Court in Dhanwanti Joshi, and Sarita
Sharma's cases, clearly support that proposition."
the parties
were residing in USA along with their two minor children one aged
seven
years and the other aged three years. Proceedings for dissolution of marriage
were
initiated by the husband in a US court. In those proceedings, interim orders
were
passed from time to time with respect to the care and custody of the children
and
visitation right of the appellants. During the pendency of divorce proceedings,
the
petitioner-mother of the children took the children with her though in USA
W.P(Crl.)
494/2010 Page 7 of 29 itself. The Associate Judge passed an order for putting
children back in the care of
the
father and the mother was given only visitation right. On 7.5.1997, the mother
Smt.
Sarita picked up the children from the residence of the husband while
exercising
her visitation right. She was to bring the children back to the school next
day
morning, but she failed to do so. On the husband informing the police, a
warrant
of her arrest was issued. Smt. Sarita came to India with her children. On
12.6.1997,
a divorce decree was passed by the Associate Judge and the husband
was given
sole custody of the children. Sarita was denied even the visitation right.
The
husband Sushil Sharma then filed a writ petition in this Court. This Court
rejected
the contention of Sarita Sharma that the decree of divorce and order for
custody
of the children had been obtained by the husband by practising fraud on
the Court
and directed Sarita Sharma to restore the custody of the children to the
husband.
Their passports were also ordered to be handed over to him. Being
aggrieved
from the order passed by this Court, the wife Sarita approached the
Supreme
Court by way of a Special Leave Petition. It was contended by her that
when she
came to India with children, she was their natural guardian.
The
question which arose before the Court was whether the custody of the
children
had become illegal as Sarita committed a breach of the order of the
Marriage
Court directing her not to remove children from the jurisdiction of the
court
without its permission. Another question which came up before the Supreme
W.P(Crl.)
494/2010 Page 8 of 29 Court was as to whether her custody of the children
became illegal after decree of
divorce
and order passed by American Court giving custody of children to her
husband.
Allowing the appeal of the mother and setting aside the order passed by
this
Court, the Supreme Court, inter alia, held as under:
"6.
Therefore, it will not be proper to be guided entirely by the fact that the
appellant Sarita had removed the children from U.S.A. despite the order of the
Court of that country. So also, in view of the facts and
circumstances
of the case, the decree passed by the
American
Court though a relevant factor, cannot override the consideration of welfare of
the minor children. We have already stated earlier that in U.S.A. respondent
Sushil is staying along with his mother aged about 80 years. There is no one
else in the family. The respondent appears to be in the habit of taking
excessive alcohol. Though it is true that both the children have the
American
citizenship and there is a possibility that in U.S.A. they may be able to get
better education, it is doubtful if the respondent will be in a position to
take proper care of the children when they are so young. Out of them one is a
female child. She is aged about 5 years. Ordinarily, a female child should be
allowed to remain with the mother so that she can be properly looked after. It
is also not desirable that two children are separated from each other. If a
female child has to stay with the mother, it will be in the interest of both
the children that they both stay with the mother. Here in India also proper
care of the children is taken and they are at present studying in good schools.
We have not found the
appellant
wanting in taking proper care of the children. Both the children have a desire
to stay with the mother. At the same time it must be said that the son, who is
elder than daughter, has good feelings for his father also. Considering all the
aspects relating to the Welfare of the children, we are of the opinion that in
spite of the order
W.P(Crl.)
494/2010 Page 9 of 29 passed by the Court in U.S.A. it was not proper for the
High Court to have allowed the Habeas Corpus 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 directed the
respondent
to initiate appropriate proceedings in which such an inquiry can be
held.........."
was
living with the husband in USA for ten months after her marriage to him on
11.6.1982,
left the respondent on 20.4.1983 along with their child who at that time
was 35
days old. There was litigation between the parties, both civil and criminal,
in India
as well as in USA for 14 years. The husband continued to live in USA
while the
wife along with her son was living in India. The husband filed a divorce
case in
USA and also sought custody of the child. A divorce decree was passed ex
parte on
23.9.1983. On 20.2.1984, the appellant came to India along with the child.
The
respondent husband then obtained an order on 11.4.1984 whereby visitation
rights
were given to him. This was followed by another order whereby temporary
custody
was given to him. On 28.4.1986, the US Court passed an ex parte order
granting
permanent custody of the child to the respondent-husband. The appellant
filed a
petition in the Civil Court seeking declaration that her marriage with
respondent
was null and void, he being already married at that time. The
W.P(Crl.)
494/2010 Page 10 of 29 respondent came to India and filed a Habeas Corpus
petition seeking custody of the
child.
The writ petition was dismissed by the High Court. The husband, however,
was given
visitation rights. A petition under Section 13 of the Hindu Minority and
Guardianship
Act was filed by the appellant/mother, seeking permanent custody of
the
person and property of her son. The court appointed her the permanent and
lawful
guardian of the person and property of the child. The order of the trial court
was
upheld by the High Court. The matter was taken to Supreme Court, by the
husband.
The Supreme Court, while dismissing the appeal filed by the husband
observed
that he could have any other remedy open in law against the ex parte
decree.
The husband/respondent then filed a petition seeking custody of the child.
The
family court allowed the application filed by him and granted custody of the
child to
the respondent. The appeal filed by the mother/appellant against the order
of the
family court was dismissed for non-prosecution. An application filed by her
to set
aside the dismissal order, was also dismissed holding that she had no case, on
merit,
for retaining the custody of the child. One of the questions which fell for
consideration
before the Supreme Court in the appeal filed by the wife was as to
whether
her bringing the child to India contrary to the order of US Court, would
have any
bearing on the decision of the courts in India, while deciding about
custody
and welfare of the child. The Supreme Court held that it was the duty of
the
courts in the country to which a child is removed, to consider the question of
W.P(Crl.)
494/2010 Page 11 of 29 the custody having regard to the welfare of the child.
As observed by the Supreme
Court in
Ruchi Majoo (supra), in doing so, the order passed by the foreign court
would
yield to the welfare of the child and comity of Courts simply demands
consideration
of any such order issued by the foreign courts and not necessarily
their
enforcement.
6. It
would, thus, be seen that in the case of Sarita Sharma (supra), the
Supreme
Court allowed the wife to have custody of the child, giving primacy to the
welfare
of the child, despite the fact that she had removed the children from the
custody
of the husband, in violation of the order passed by the Associate Judge,
who had
put them in custody of her husband and further order of the US Court,
declaring
that the sole custody of the children shall be with the husband. In
Dhanwanti's
case (supra), also, Supreme Court allowed the wife to retain custody
of the
child despite the order of US court, giving permanent custody of the child to
the
husband. In both these cases welfare of the child was held to be the paramount
consideration
in such matters. The court was clearly of the view that the principle
of comity
of Courts and the orders passed by the foreign courts were only one of
the relevant
factors to be taken by the courts into consideration, the prime
consideration
in all such cases being as to whether the welfare of the child lies with
the
husband or the wife. In the case before this court, admittedly, there was no
order of
New Zealand court giving custody of the children to the petitioner alone or
W.P(Crl.)
494/2010 Page 12 of 29 to both, the husband and wife, at the time the children
came to India. The children
were not
brought to India at the back of their father or without his consent. The
entire
family came together to India. While leaving India, the petitioner agreed that
respondent
No.2 would join him later in New Zealand in the month of June along
with
children. Therefore, neither the children were brought to India in violation of
a
court's
order nor can it be said that respondent No.2 was illegally withholding the
children
with her when they came to India or when the petitioner left for New
Zealand.
7. It is
not in dispute that the relations between the petitioner and respondent
No.2 are
far from cordial. This became evident when respondent No.2 did not
return to
New Zealand along with the children in June 2009 despite their return
tickets
having already been booked. In her counter affidavit, respondent No.2 has
alleged
cruelty and harassment at the hands of the petitioner. Some of the instances
of
cruelty and harassment alleged in the counter affidavit are as under:
"13.04.2005
That on the 13th of April, 2005, the respondent called her mother to wish her
on her birthday. She
inquired
about her father and learnt that he was attending the Sat Sang. On haring this,
the petitioner got angry and started shouting at the respondent and also
slapped her despite the assurance of petitioner's parents.
Jan 2006
That in January, 2006 a friend of respondent was leaving for India and while
returning from the New
Zealand
airport after seeing her off, the petitioner started
W.P(Crl.)
494/2010 Page 13 of 29 shouting at the respondent for having talked about her
parents at the airport.
Oct 2007
That in October, 2007, respondent was expecting another baby and the petitioner
insisted her to call her mother to New Zealnad. The brother of respondent No.2
asked her about the visa procedure and for this too she was slapped by the
petitioner. The mother of respondent no.2 visited her in New Zealand on
3.1.2008 and on that date, her second daughter was born. During the stay of the
respondent mother, the father of the petitioner abused the mother of respondent
and blamed her that it was
because
of her, the respondent no.2 had a pre-mature baby and they had to spend money
on her medical
treatment.
11.03.2009
That on 11.3.2009, the parties came to Delhi and went to the house of the
petitioner where they stayed till 8.4.2009 when the petitioner left for New
Zealand.
During
this stay, the respondent and her minor children only once visited the house of
her parents.
10.4.2009
That on 10.4.2009, the respondent came to her parents house for few days in
May, 2009 her brother
came to
India from U.S.A. to find a suitable match for his marriage. The respondent's
brother found a match and on 6.6.2009 a Roka ceremony was held. At, 9 a.m., the
father of
the respondent invited at phone the family of the petitioner but the petitioner
had instructed not to attend the function. The ceremony was to be held at 11.30
a.m., followed by a lunch at 2.30 p.m. but with the intent to harass the
respondent, the petitioner sent respondent late so that ceremony could be held
at 1.30 p.m. and lunch at 5 p.m. the respondent was brought by her father in
law at 6 p.m.
08.06.2009
That on 8.6.2009, the father of the petitioner told the father of the
respondent to give a phone call to the petitioner thanking him for allowing the
respondent to
W.P(Crl.)
494/2010 Page 14 of 29 attend the function. But the petitioner abused him on
pone for an hour using filthy language.
09.06.2009
That on 9.6.2009, the uncle of respondent came to her in laws house to bring
her to Rajinder Nagar, New Delhi, as the respondent was suspposed to leave for
New Zealand on 10.6.2009, and after begging for four hours, the father of the
petitioner allowed the respondent to go but after getting in writing four pages
with her signatures and dates that is she is going on her own accord and she
was not allowed to take her kids, Ms. Jasmine Kaur and Ms. Vaani Kaur as was
instructed by the respondent. The purse of the respondent was also checked. She
was
allowed
to go at 4 p.m. without her daughters aged 5 years and 1½ years old. She
requested her father in law to give her kids as her younger daughter was on
breast feed but he abused her. At 11 p.m. respondent and her uncle went to the
house of the in-laws and the father in law started abusing them. He also gave a
jolt to the turban of the uncle of the respondent and also slapped him. The
shocked uncle came back quietly.
10.06.2009
That on 10.6.2009, the father in law of the respondent who had received
instructions from the
petitioner
started using rough and filthy language and forcibly put off the jewellery of
the respondent. At 1 p.m. the father of respondent having undergone so much
trauma
about these cruelties with the help of police freed respondent and her kids
from her father in law and
brought
her back home wearing apparels only. Since then she is living with her parents and
all her belongings are also kept by the in laws."
8. The
allegations made in the counter affidavit have been denied by the
petitioner
in the rejoinder affidavit filed by him. We cannot examine the
W.P(Crl.)
494/2010 Page 15 of 29 truthfulness or otherwise of all these allegations in
this petition under Article 226
of the
Constitution. We would, however, like to take note of certain facts which
have a
bearing on the issue of welfare of the minor children:
(a)
Criminal M.A. No. 83/2010 was filed by respondent No.2 alleging
therein
that the petitioner made a telephone call to her on 23.5.2010 and made
derogatory,
abusing, threatening and uncivilized remarks not only against her but
against
her parents and relatives as well. A cassette of the tape-recorded telephonic
conversation
was also annexed to the application. The learned counsel representing
the
petitioner on 04.06.2010, on instructions from the petitioner, categorically
denied
that the petitioners had made any such telephonic call on 23.5.2010 at 11
a.m. or
that he had used derogatory remarks against by respondent No.2 or her
parents
or relatives. Vide order dated 13.8.2010 we directed the petitioner to file an
affidavit
indicating as to whether the male voice in the recorded conversation was
his voice
or not. Another copy of the audio cassette was also handed over to his
counsel.
We also directed learned counsel for the petitioner to take instructions
from him
as to whether he was willing to come to India for giving his voice sample
so that
the same can be compared with male voice in the recorded cassette
submitted
by the respondent No.2. On 26.11.2010, we were informed that the
petitioner
was not willing to come to India for this purpose. The cassette was then
sent by
us to CFSL, CBI, New Delhi for the purpose of examining as to whether
W.P(Crl.)
494/2010 Page 16 of 29 the audio contained therein had been deterred/tampered
with or not by insertion or
deletion
of pieces of conversation which is recorded therein. We received a report
from
CFSL, opining that the recording in the cassette was continuous and no form
of
tampering to the recording had been detected. Therefore, it cannot be said that
the
cassette filed by respondent No.2 has been interpolated in any manner. As
regards
the male voice in the cassette, it was subsequently conceded by the learned
counsel
for the petitioner, during the course of arguments before us that the voice
was that
of the petitioner. Thus, we have an admission of the petitioner that the
voice in
the cassette is his voice and we also have a report from the CFSL opining
that
there has been no tampering with the said cassette. It is also evident from the
admission
made by the learned counsel for the petitioner before us, during the
course of
arguments, that the petitioner, through his counsel, had made a false
statement
before us on 04.06.2010 when he stated that he had not made any
derogatory
remarks against respondent No.2 or her parents or her relatives. Some
of the
extracts from the English translation of the Hindi conversation recorded in
the said
cassette read as under:
"Surjeet:-Where
Jasmine is gone.
Harpreet:-She
went to Gurudwara.
Surjeet:-You
bastard are sitting in the house, Bhen ki lori sent her to Gurudwara,
Haramjadi, Kutte ki bacchi I am trying on phone for two hours and not
attending, your entire family is sons of bastard, Kanjaro, Bhenchodo live
ashamed.
W.P(Crl.)
494/2010 Page 17 of 29 Harpreet:-Really you have no manners.
Surjeet:-Bhen
ki lodi, kutti, Bhenchod, Randi you have no manners.
Harpreet:-This
is manners, this is manners, this is manners. Surjeet:-You will teach me
manners, why you sit for fucking when your father shown manners and what
manners
shown by
your father, your uncle bhen ka loda, son of dog what manners he shown to you.
Harpreet:-good
on you, Good on you. You have got these manners. I say one year has completed
in one man.
Surjeet:-You
come to fuck your mother, your attraction has finished and you again coming for
fucking sister. You and your father are very bastards and he was not feeling
ashamed while disconnecting phone. And on next day
when I
made phone call he called police then he was not ashamed.
Harpreet:-Your
father not ashamed when took out my jewellery and not ashamed while naked her
daughter in law.
Surjeet:-Kutti
ki bacchi, Harm ki aulad, Benchod, your father was not ashamed.
Harpreet:-
Your parents are not ashamed when they gives filthy abusing.
Surjeet:-Call
your brother, Bhen ke lode in my front, Bhenchod has died.
Harpreet:-You,
You are a impossible person.
Surjeet:-Tere
maa ki chut, Bhenki lodi, callyour father I will talk with him, call that
Bhenchod if he is son of only a man. Call your brother and father so that I can
talk with them.
xx xx xx
xx xx xx xx xx xx
Surjeet:-Your
uncle Randwa, Behnchod says me that my wife has lost attraction for me and he
was putting penis for giving, you were sitting for fucking by your uncle.
Harpreet:-Be
ashamed, how can a person can tell all these for his wife and what compromise
will be made by him,
what is
your aim.
Surjeet:-Bhenki
Lodi, talk with me on phone today, come in front of me I fuck your mother.
W.P(Crl.)
494/2010 Page 18 of 29 Harpreet:-Very good, give more abusing except that what
you know and learnt and I was telling for long time what type of you and know
this person very well.
xx xx xx
xx xx xx xx xx xx
Surjeet:-He
will fuck his daughter after going in house.
xx xx xx
xx xx xx xx xx xx
Surjeet:-Your
father was bastard since first day and use to say I demand for dowry.
Harpreet:-Whether
you have married with me or my father. Tell me from whom you married.
Surjeet:-Haram
ki aulad, call your Benchod father.
xx xx xx
xx xx xx xx xx xx
Surjeet:-I
say that you are daughter of bastard and not daughter of your father and you
will be daughter of bastard if you not tell that you have to live with me after
marriage. You should come her along with children. Come here and
why are
escaping from situation and responsibility.
xx xx xx
xx xx xx xx xx xx
Harpreet:-I
have allowed my children to talk with you but how can allow a father who talks
with children by giving abusing.
Surjeet:-The
person will be son of dog who will sent his sister for fucking again and why
you not told before the court that you want to live with me and why told lie.
xx xx xx
xx xx xx xx xx xx
Surjeet:-Kutte
ki bacchi, haramjadi, Ullu ki pathi."
W.P(Crl.)
494/2010 Page 19 of 29 (b) The petitioner has been sending messages to respondent
No.2 and to
say the
least, the expressions used in some of these SMSs cannot be said to be
parliamentary
and do not behove of an educated person like him. One SMS sent by
the
petitioner to respondent No.2 reads as under:-
"Is
it your status'O' you mean character bastard father, you have given these bad
teachings to your daughter that she lost her attraction towards her husband
& you will search new husband for your daughter.
9. Having
considered the matter and heard the learned counsel for the parties at
considerable
length, we are of the opinion that for the reasons stated herein below,
it could
not be in the interest of the minor children, to sent them to New Zealand.
i) Both
the children are minor girls, one aged about seven years and the other
aged
about four years and hence both of them need constant company of their
mother.
If we direct the respondent No.2 to take the children to New Zealand and
live with
the petitioner, considering the behavior of the petitioner as is reflected in
the
tape-recorded conversation, it will not be safe for respondent No.2 to live
with
the
petitioner in New Zealand. The petitioner is likely to cause mental as well as
physical
cruelty to respondent No.2 if she lives with him. If the petitioner
misbehaves
with respondent No.2 in the presence of these minor girls, it is bound
to have a
damaging and ever-lasting negative impact on them and make them
constantly
worry about their safety and the safety and welfare of their mother. The
W.P(Crl.)
494/2010 Page 20 of 29 cruelty with respondent No.2 is likely to cause trauma
and distress not only to her,
but also
to her children.
ii) If we
give custody of the children to the petitioner, that would not be in the
interest
of these girls who need constant care, attention, devotion and love from
their
mother. Of course, it cannot be disputed that the children need the company of
the
father as well, but if a choice has to be made between the father and the
mother,
we are of
the firm view that in the facts and circumstances of the case, the welfare
of the
children lies in being with the mother rather than being with the father.
iii) As
far as the younger daughter Vaani's care is concerned, she being less than
five
years old, respondent No.2 continues to be her natural guardian in terms of
Hindu
Minority and Guardianship Act, 1956 and it would not be in the interest of
the
children to separate them from each other. Even the children would not like to
part with
the company of each other, even if it is at the cost of losing the company
of their
father.
iv) Both
the children are now in India for the last almost three years and are
receiving
education in Delhi. It will not be in their interest to discontinue their
studies
abruptly and join some school in New Zealand, since the education received
by them
in India is not likely to be recognized by the schools in New Zealand.
v)
Section 3(3) of Domestic Violence Act, 1995 (New Zealand) reads as
under:-
W.P(Crl.)
494/2010 Page 21 of 29 "3 Meaning of domestic violence:
(1) In
this Act, domestic violence , in relation to any person, means violence against
that person by any other person with whom that person is, or has been, in a
domestic
relationship.
(2) In
this section, violence means--
(a)
Physical abuse:
(b)
Sexual abuse:
(c)
Psychological abuse, including, but not limited
to,--
(i)
Intimidation:
(ii)
Harassment:
(iii)
Damage to property:
(iv)
Threats of physical abuse, sexual abuse,
or psy-
chological abuse:
(v) In
relation to a child, abuse of the kind
set out
in subsection (3) of this section.
(3)
Without limiting subsection (2)(c), a person
psychologically
abuses a child if that person--
(a)
causes or allows the child to see or hear the
physical,
sexual, or psychological abuse of a person with whom the child has a domestic
relationship; or
(b) puts
the child, or allows the child to be put, at real risk of seeing or hearing
that abuse occurring;-- but the person who suffers that abuse is not
regarded,
for the purposes of this subsection, as
having
caused or allowed the child to see or hear
the
abuse, or, as the case may be, as having put the child, or allowed the child to
be put, at risk of
seeing or
hearing the abuse."
Considering
the behavior of the petitioner as is reflected in the tape-recorded
conversation
referred hereinabove, if the petitioner physically or mentally abuses
respondent
No.2, which we feel he is likely to do considering his past behavior, and
W.P(Crl.)
494/2010 Page 22 of 29 such an act on the part of the petitioner is witnessed
by the children, this would
amount to
psychologically abusing the children under the laws of New Zealand and
it would
not be appropriate for us to pass an order which is likely to result in the
children
being psychologically abused by the petitioner.
vi) On
19.4.2012, we interacted with the children in our chambers in the
presence
of the learned counsel for the parties, to ascertain whether they wanted to
live in
India or to go to New Zealand. Both the children clearly stated that they
would
like to stay in India with their mother even if it is at the cost of being
deprived
of the company of their father. Both the children, therefore, have clearly
expressed
a disinclination to go to New Zealand to their father.
10.
Having given due regard to the order passed by the New Zealand Court
directing
the respondent No.2 to place both the children in its custody, we are of
the view
that the relief sought in this petition should not be granted since it will not
be in the
interest of the children to send them back to New Zealand. The welfare of
the minor
is the paramount consideration, even in a case involving principle of
comity of
courts.
11.
During the course of arguments, learned counsel for the petitioner placed
reliance
upon the decisions of the Supreme Court in V. Ravi Chandran v. Union of
SCC 591.
In V. Ravi Chandran (supra), the Supreme Court was dealing with a
W.P(Crl.)
494/2010 Page 23 of 29 Habeas Corpus petition filed directly before it under
Article 32 of the Constitution.
In that
case, respondent No.6 before the Supreme Court had approached New York
State
Supreme Court, for divorce and dissolution of marriage. A consent order
governing
issue of custody and guardianship of minor child Adithya was passed by
the court
on 18.4.2005, granting joint custody of the child to the petitioner and
respondent
No.6. Both of them consented to the order giving joint custody of the
child to
them. The marriage between them was dissolved on 8.9.2005. The order
pertaining
to the custody of the child was incorporated in that order. With the
consent
of the parties, the order was passed by the family court of State of New
York on
18.6.2007, ordering that the parties shall share joint legal and physical
custody
of the minor child. Some other directions were also given in that order. On
28.6.07,
respondent No.6 brought the minor child to India informing the petitioner
that she
would be residing with her parents in Chennai. On 8.8.2007, the petitioner
filed a
petition before the family court of the State of New York, for modification
and
alleging violation of the custody order, by respondent no.6. The Court passed
an order
giving temporary sole custody of the child to the petitioner and respondent
no.6 was
directed to immediately return minor child and his passport to the
petitioner.
The family court of the State of New York also issued Child-abuse Non-
bailable
warrant against respondent No.6. It was in this backdrop that the Supreme
court,
directed respondent No.6 to take the child to United States of America as per
W.P(Crl.)
494/2010 Page 24 of 29 the consent order dated 18.6.2007 passed by the family
court of the State of New
York till
such time any further order was passed by that Court. Certain directions
with
respect to travelling expenses of respondent No.6 and the child as well as for
making
arrangements for residence of respondent No.6 in the USA were also given
by the
court. In the course of judgment, Supreme Court, inter alia, observed as
under:
"29.
While dealing with a case of custody of a child removed by a parent from one
country to another in contravention to the orders of the court where the
parties had set up their matrimonial home, the court in the country to which
child has been removed must first consider the question whether the court could
conduct an elaborate enquiry on the question of custody or by dealing with the
matter summarily order a parent to return custody of the child to the country
from which the child was removed and all aspects relating to child's welfare be
investigated in a court in his own country. Should the court take a view that
an elaborate enquiry is necessary, obviously the court is bound to consider the
welfare and happiness of the child as the paramount consideration and go into
all relevant aspects of welfare of child including stability and security,
loving and understanding care and guidance and full
development
of the child's character, personality and talents. While doing so, the order of
a foreign court as to his custody may be given due weight; the weight and
persuasive effect of a foreign judgment must depend on the circumstances of
each case."
The
Supreme Court took note of the fact that keeping in view the welfare
and
happiness of the child and in his best interests, the parties had obtained a
series
of
consent orders concerning his custody/parenting rights, maintenance etc from
W.P(Crl.)
494/2010 Page 25 of 29 the competent court of jurisdiction in USA. The court
also found that there was
nothing
on record which may even remotely suggest that it would be harmful to the
child to
be returned to USA. However, in the present case, the children have not
been
brought to India in violation of any order passed by a court at New Zealand.
The
children came to India with their parents and with the consent of both of them.
No order
with respect to the custody of the children was passed by the Court at
New
Zealand with the consent of the parties. In the case of V. Ravi Chandran
(supra),
there was nothing to even remotely suggest that it would be harmful to the
child to
be returned to USA. On the other hand, there is ample material before this
Court
which clearly suggests that it would be harmful not only for respondent No.2
but also
for the children if they are sent to New Zealand. The facts of this case are,
therefore,
clearly distinguishable from the facts in V. Ravi Chandran (supra).
In Shilpa
Aggarwal (supra), following some disagreement between the
parties,
the appellant before the Supreme Court came to India on 12.9.2008, but
returned
on 14.10.2008. The appellant was supposed to join him in his family at
New Delhi
at his arrival in to India but she chose not to do so. Both of them were
supposed
to leave for U.K. 9.11.2008, but, the appellant got their tickets cancelled
on
7.11.2008 and remained behind in India. The respondent husband thereupon
started
proceedings before the High Court of Justice, Family Division, U.K. on
25.11.2008,
for an order that the minor child be made ward of the court and for a
W.P(Crl.)
494/2010 Page 26 of 29 direction to the appellant to return the minor child to
the jurisdiction of the said
court. On
the application of the husband, the High Court of Justice, Family
Division,
U.K. vide order 26.11.2008 directed the appellant to return the minor
child to
the jurisdiction of the court. A further direction was given for the passport
and
travelling documents of the minor child to be handed over to the Solicitor of
respondent
No.1. This Court directed the appellant before the Supreme Court to
take the
child to England and join proceedings failing which the child was to be
handed
over to the husband to be taken of England as a measure of interim custody,
and
thereafter, it was for the courts of England and Wales to determine which
parent
would be best suited to have the custody of child. Finding no fault with the
order of
this Court, the appeal filed by the wife was dismissed by the Supreme
Court. It
would be pertinent to take note of the fact that in the case of Shilpa
Aggarwal
(supra), there was nothing before the court to even suggest that the
husband
was likely to cause physical or mental cruelty to his wife, and therefore, it
would be
in the interest of the child to send him back to U.K. On the other hand, in
the case
before this Court, the conduct of the petitioner as reflected in the tape-
recorded
conversation filed by respondent No.2 in the Court, clearly indicates that
it would
not be in the interest of the minor daughters of the parties to sent them to
New
Zealand, with or without respondent No.2 accompanying them. If these girls
are sent
to New Zealand, there is all likelihood of respondent No.2 being tortured
W.P(Crl.)
494/2010 Page 27 of 29 mentally and/or physically by the petitioner and such
torture being witnessed by
the
children which, in turn, is bound to have an adverse impact on them thereby
amounting
to their psychological abuse in terms of the laws applicable in New
Zealand.
12. For
the reasons stated hereinabove, we are of the view that it is not a fit case
for
exercising our extraordinary jurisdiction under Article 226 of the Constitution
by
directing respondent No.2 to either return to New Zealand along with children
or to
give custody of the children to the petitioner. It would, however, be open to
the
petitioner, if he so desires, to apply to the appropriate court in India seeking
custody
of the children.
However,
in order to ensure that the petitioner is not deprived of his
legitimate
right to be in the company of his children, whenever he visits India, we
direct
that he will be entitled to visit after advance intimation, the house where the
respondent
No.2 is residing at that time with the children and be in the company of
the
children for two hours during day time, on every Saturday, Sunday and school
holiday.
While visiting the house of respondent No.2 in India, the petitioner will be
alone and
will not misbehave with her or any member of her family in any manner
and will
conduct himself in a dignified and appropriate manner. If the petitioner
fails to
do so, it would be open to respondent No.2 to refuse entry to the petitioner
in her
house. If the petitioner while at the house of respondent No.2 in India,
W.P(Crl.)
494/2010 Page 28 of 29 conducts himself appropriately, he will be entitled to a
peaceful company of his
children
uninterrupted by respondent No.2 or any member of her family in terms of
this
order.
The writ
petition stands disposed of accordingly. In the facts and
circumstances
of the case, there shall be no order as to costs.
V.K.JAIN,
J
BADAR
DURREZ AHMED, J
__________________________________________________________________________________________________________________________________________________________________
Madras High Court
Ms.Dorothy Thomas vs Mr.Rex Arul
Dated :
27.07.2011
Coram :
The
Honourable Mr.Justice V.RAMASUBRAMANIAN
OA.NO.191
OF 2011 IN CS.NO.135 OF 2011
Ms.Dorothy
Thomas ...Applicant/Plaintiff
Vs
Mr.Rex
Arul ...Respondent/Defendant
CIVIL
SUIT under Order VII Rule 1 of the Civil Procedure Code read with Order IV Rule
1 of the Original Side Rules seeking a judgment and decree against the
defendant for (i) a declaration that the final order dated 1.11.2010 passed by
the Superior Court of Cobb County, State of Georgia, USA in Civil Action File
NO.10-1-8238-48 to the extent that it deals with issues of custody of the minor
child Rhea Immaculate Arul (aged 3= years) as inconclusive, unenforceable, null
and void and not binding on the plaintiff and the minor child Rhea Immaculate
Arul, in all aspects except for the dissolution of the marriage between the
plaintiff and the defendant; (ii) a permanent injunction restraining the
defendant, his men, agents, representatives, assigns or any persons claiming
through or under him, from in any manner separating the plaintiff from the
minor child Rhea Immaculate Arul (aged 3= years) except by following due
process of law; (iii) a permanent injunction restraining the defendant, his
men, agents, representatives, assigns or any persons, claiming through or under
him, from publishing in any manner, directly or indirectly, whether orally, in
writing or by signs or innuendo, any material that is defamatory or tends to
defame, derogate, denigrate or lower the reputation of the plaintiff in the
eyes of right minded persons in society; and (iv) a permanent injunction
restraining the defendant, his men, agents, representatives, assigns or any
persons claiming through or under him, from in any manner causing any physical
harm to the plaintiff or the minor child namely Rhea Immaculate Arul (aged 3=
years). OA.No.191 of 2011 seeking to grant temporary injunction restraining the
respondent, his men, agents, representatives, assigns or any persons, claiming
through or under him, from in any manner enforcing order dated 1.11.2010 of the
Superior Court of Cobb County, State of Georgia, USA in Civil Action File
No.10-1-8238-48 or harassing the applicant and separating the applicant from the
minor child Rhea Immaculate Arul, pending disposal of the above suit.
For
Applicant/Plaintiff : Mr.J.Sivanandaraj
For
Respondent/Defendant : Ms.A.Arulmozhi
O R D E R
Pending
suit for a declaration that the final order dated 1.11.2010 passed by the
Superior Court of Cobb County, State of Georgia, USA in Civil Action File No.
10-1-8238-48, to the extent that it deals with issues of custody of the minor
child Rhea Immaculate Arul, aged about 4 years is inconclusive, unenforceable,
null and void and not binding on the plaintiff and the minor child and for
consequential decrees of permanent injunction, the plaintiff, who is the mother
of the minor child, came up with 3 applications, viz., (i) O.A.No.191 of 2011
seeking an interim order of injunction restraining the respondent father from in any manner seeking to enforce
the said order of the Superior Court of Cobb County, State of Georgia, in so
far as the custody of the minor child is concerned (ii) O.A.No.192 of 2011,
seeking an interim order of injunction restraining the defendant from in any
manner publishing any defamatory or derogatory material, lowering the
reputation of the plaintiff in the eyes of the right minded persons and (iii)
A.No.1220 of 2011, seeking a stay of operation of the final order dated
1.11.2010, passed by the Superior Court of Cobb County, State of Georgia,
U.S.A., in Civil Action File NO.10-1-8238-48.
2. On
28.2.2011, when the above applications were moved for ad interim ex parte
orders, I granted an order of interim injunction in favour of the applicant/
plaintiff in O.A.No.191 of 2011. In the other two applications, notice was
ordered. After service of notice, the defendant came up with a counter in
O.A.No.191 of 2011 along with a set of documents and both parties agreed to
argue O.A.No.191 of 2011 in the first instance, since it concerned the custody
of a minor child aged 4 years.
3.
Therefore, O.A.No.191 of 2011 was taken up for hearing and I have heard
Mr.J.Sivanandaraj, learned counsel appearing for the applicant/plaintiff and
Ms.A.Arulmozhi, learned counsel appearing for the respondent/defendant.
4. The
brief facts on which the parties are not and cannot, be in dispute and which
are borne out by the documents filed on either side, are as follows :
a. The
plaintiff married the defendant on 23.9.2005 in Atlanta, USA. Both of them were
divorcees at the time of their marriage;
b. Out of
the said wedlock, the minor girl Rhea Immaculate Arul was born on 18.5.2007.
The marriage between the plaintiff and the defendant ran into rough weather
leading to the plaintiff herself filing a petition for divorce on 7.5.2010 on
the file of the Superior Court of Cobb County, State of Georgia, USA;
c. After
filing the petition for divorce on 7.5.2010 in the said Court, the plaintiff
left USA on 11.5.2010 along with the child and arrived in India on 12.5.2010.
d. But
she returned to U.S., on 22.5.2010 and withdrew her petition for divorce on
3.6.2010, after service of summons on the defendant on 1.6.2010;
e. On
26.7.2010, the plaintiff again came back to India with the child. Thereafter,
she filed a petition in Civil Action File NO.10-1-8238-48 on the file of the
same Court namely Superior Court of Cobb County, State of Georgia, praying not
only for divorce, but also for primary custody of the minor child and for the
grant of child support in accordance with the Child Support Guidelines. This
petition dated 16-8-2010 was filed on 17.8.2010 by the plaintiff, through her
counsel in U.S., though the plaintiff herself was in India at that time; f.
Upon receipt of summons in the second petition filed by the plaintiff, the
respondent/defendant filed an 'Answer and Counter Claim' on 24-8-2010, seeking
divorce as well as primary custody of the minor child;
g. Along
with his Answer and Counter claim, the respondent also moved a 'Motion for
Emergency Hearing' on his counter claim in so far as the issue of custody of
child is concerned, expressing an apprehension that the plaintiff may settle
down in India with the child. But the plaintiff opposed the motion for emergency
hearing on the ground that she was due to attend the regular hearing on
18-10-2010 and that it would be difficult to make an emergent trip to U.S. Then
the parties agreed not to press for an early hearing, on the understanding that
the plaintiff would attend the regular hearing on 18-10-2010 with the child. h.
But, the plaintiff and child did not return to United States for the hearing on
18.10.2010. On the contrary, the plaintiff requested the dismissal of her
petition for divorce and it was accordingly dismissed. Therefore, the
respondent proceeded with his counter claim and after examining the defendant
and marking 24 exhibits, the Superior Court of Cobb County, State of Georgia
passed a final order dated 1.11.2010. The final order comprises of several
parts. By the first part, the marriage between the plaintiff and the defendant
was dissolved by a decree of divorce. By the second part, the plaintiff was
directed to return the minor child to USA on or before 24.11.2010. This date
was fixed by the court, taking into account the fact that the plaintiff had a
confirmed return journey ticket for her and the child on 23-11-2010. By the
second part of the order, the defendant was also granted sole physical custody
of the minor child with visitation rights to the plaintiff on the fourth week
end of every month. The parenting schedule to be followed during holidays was
spelt out in the third part of the order. The other parts of the order dealt
with child support, health insurance, division of property, marital debts,
alimony and attorney's fees; i. Since the plaintiff did not return to USA with
the child as per the final order passed by the said Court and as per the return
journey ticket with which she arrived in India, the defendant filed a petition
for the issue of a Writ of Habeas Corpus on the file of the same Court on
16.12.2010.
j. The
summons on the Writ of Habeas Corpus in Civil Action File No.10-1-12222-48 were
served on the plaintiff herein on 8.1.2011 in India, by a Special Process
Server appointed by the Superior Court of Cobb County. Despite service of
summons in the Habeas Corpus, the plaintiff herein did not take any steps.
Therefore, by an order dated 15.2.2011, the Superior Court of Cobb County,
State of Georgia issued a Writ of Habeas Corpus to attach the body of the child
and to deliver the child to the defendantfather; k. Simultaneously with the
habeas corpus petition, the defendant also filed a contempt petition on
10.12.2010 in Civil Action File No.10.1.12096.48. The Superior Court of Cobb
County issued summons to the plaintiff herein in that contempt petition. The
summons, the motion for contempt and the other relevant papers, were all served
in India, on the plaintiff herein by a Special Process Server appointed by the
Court of Cobb County, on 8.1.2011. l. After receiving the summons both in the
Writ of Habeas Corpus and the Contempt Petition, on 8.1.2011, the plaintiff
filed the above suit. The papers were presented originally on 28.1.2011 along
with an application for leave to sue under Clause 12 of the Letters Patent. On
1.2.2011, leave was granted in A.No.561 of 2011. Thereafter, the suit got
numbered as above and an interim order of injunction was granted by me in
OA.NO.191 of 2011 on 28.2.2011; m. In the meantime, the defendant also filed a
petition for grant of a Writ of Habeas Corpus in HCP.NO.213 of 2011 on the file
of this Court in January 2011. The said Habeas Corpus petition is pending
adjudication in view of the fact that larger issues are raised in the above
suit;
n. Though
the contempt proceedings in Civil Action File No.10-1-12096-48 was filed by the
defendant on 10.12.2010 and the service of process on the plaintiff was also
completed, the plaintiff did not respond. Therefore, the Court passed an order
on 12.4.2011, directing the plaintiff herein to return the child on or before
25.5.2011, in order to purge herself of the contempt. The order also stated
that if the plaintiff failed to return the child by the designated date and
time, the order itself will serve as an order for incarceration. o. In view of
the orders of the Superior Court of Cobb County (1) granting primary custody of
the child to the defendant herein (2) finding the plaintiff herein guilty of
contempt prima facie (3) issuing a writ of habeas corpus to return the child to
U.S.A., and in view of the resistance on the part of the plaintiff in complying
with every order of the said Court, it appears that a red corner notice has
also been issued through the U.S. Consulate. It is in the background of these
facts that the above application was taken up for hearing.
5.
Admittedly, there is a final order passed by the Court of competent
jurisdiction namely the Superior Court of Cobb County of the State of Georgia
as on date, granting permanent custody of the minor child to the defendant.
Therefore, the main prayer in the above suit is for a declaration that the said
judgment, which is a foreign judgment within the meaning of Section 2(6) of the
Code of Civil Procedure, is not conclusive and binding upon the parties.
6. Under
Section 14 of the Code of Civil Procedure, a presumption arises that the
foreign judgment produced before the Court, was pronounced by a Court of
competent jurisdiction. But, it is a rebuttable presumption. Section 13 of the
Code makes a foreign judgment conclusive as to any matter thereby directly adjudicated
between the same parties. But, Section 13 lists out six exceptions to the
general rule that a foreign judgment is conclusive. The exceptions are : (i)
where it was not pronounced by a Court of competent jurisdiction;
(ii)
where it was not given on the merits of the case;
(iii)
where it appears on the face of the proceedings to be founded on an incorrect
view of International Law or a refusal to recognise law of India;
(iv)
where the proceedings were opposed to natural justice;
(v) where
it was obtained by fraud; and
(vi)where
it sustains a claim founded on a breach of any law in force in India.
7. In
R.Viswanathan Vs. Rukn-ul-Mulk Syed Abdul Wajid (AIR 1963 SC 1), the Supreme
Court pointed out that Section 13 incorporates a branch of the principle of res
judicata. However, the Supreme Court also clarified that though both rules are
founded upon the principle of sanctity of judgments competently rendered, the
rule of conclusiveness of a foreign judgment as enacted in Section 13 is some
what different in its operation from the rule of res judicata incorporated in
Section 11. But, the rule of conclusiveness of a foreign judgment applies only
to matters directly adjudicated upon and hence, what is conclusive is the
judgment. While the competence of a Court, for the application of the rule of
res judicata, is determined strictly by the Municipal Law, the competence of
the foreign court is determined by the dual test of competence by the laws of
the State, in which the court functions as well as in an international sense.
To apply the rule of res judicata, the adjudication should have been in a
former suit. But, for the application of rule of conclusiveness, it is not
necessary that the judgment must have been delivered by the foreign court,
before the institution of the suit in which the plea is set up. Again, what is
conclusive in respect of a foreign judgment is only the final adjudication and
not the reasons. More importantly, the Supreme Court held in R.Viswanathan that
in adjudging the competence of the foreign court, it would not be open to the
Indian court to ignore the course of practice in that court, even if it be not
strictly warranted by the procedural law of that State. Whether the procedure
of the foreign court, which does not offend natural justice is valid or not, is
for the foreign court to decide and not by the court in which the foreign
judgment is pleaded as conclusive.
8.
Keeping in mind, the above fundamental principles laid down by the Apex Court
with regard to the scope of Section 13 of the Code, if we analyse the contents
of the plaint, the following picture emerges. According to the plaintiff -
(i) her
life with the defendant became extremely difficult to manage, forcing her to
file a petition for divorce on 7.5.2010 in the Superior Court of Cobb County in
Georgia.
(ii)
after the filing of the divorce petition, she came to India on 12.5.2010 on the
advise of her family members.
(iii)
mediatory discussions were held, which made the defendant adopt a conciliatory
approach.
(iv) it
was agreed that the couple would shift to India permanently.
(v) the
defendant agreed to shift to India, after obtaining U.S., citizenship.
(vi)
after both of them agreed for permanent relocation in India, she did several
things such as (A) got the child admitted to a school in Chennai on 28.5.2010,
(B) withdrew her first petition for divorce on 3.6.2010, (C) put up the house
in US for sale, (D) sold her car, (E) withdrew the child from the school in
U.S., on 8.6.2010 and (F) came back to India on 26.7.2010.
(vii)
after the plaintiff came to India, the defendant changed his mind and started
torturing her, compelling the plaintiff to file a second petition for divorce
on 16.8.2010 from India itself, through her counsel in U.S.
(viii)
the defendant filed a counter claim in the said action and also moved an
application for emergency hearing, compelling the plaintiff to agree to go to
U.S., to attend the hearing scheduled for 18.10.2010.
(ix) she
did not have adequate financial resources to travel to U.S., and she did not
even have any assurance for her return to India and hence she sent a mail dated
14.10.2010, asking the defendant to provide funds for her travel to U.S., and
also to provide an assurance that she would be permitted to travel back to
India.
(x) the
plaintiff could not go to U.S., for the hearing scheduled for 18.10.2010, in
view of the failure of the defendant to provide funds for her travel and in
view of a sense of insecurity regarding her return to India.
(xi)
taking advantage of her inability to travel to U.S., and attend the hearing on
18.10.2010, the defendant proceeded with his counter claim on 18.10.2010 and
also obtained a final order, behind her back by playing fraud and by misleading
the Court.
9. A scan
of the plaint averments and the contentions raised at the time of hearing would
show that the plaintiff assails the final order of the Superior Court of Cobb
County, on 3 distinct grounds viz., (a) that it was not given on the merits of
the case (b) that the proceedings were opposed to the principles of natural
justice and (c) that it was obtained by fraud and misrepresentation. In other
words, the plaintiff stakes her claim in terms of clauses (b), (d) and (e) of
Section 13 CPC.
10. Apart
from the above 3 grounds, the plaintiff has also made a feeble attempt to
assail the decision of the foreign Court, on the ground that it had no
territorial jurisdiction, to try and decide a claim relating to physical
custody of the child. This is seen from para 32 of the plaint. This contention
is raised on the ground that the child was in India at the time when original
complaint for divorce was filed and also at the time when the counter claim was
made, by the defendant. But this contention was not pressed hard at the time of
hearing, in view of the fact that it was the plaintiff who fired the first
salvo, by filing the petition for divorce before the Superior Court of Cobb
County, Georgia, seeking both divorce as well as primary custody of the child.
Therefore, the jurisdiction of the foreign court to decide the issue of custody
of the child, was invoked by the plaintiff herself even when she was in India
and hence she cannot now question the jurisdiction of that Court, whose
jurisdiction she voluntarily invoked, not once but twice. It must also be
remembered that the plaintiff is no ordinary person, but a legal practitioner
in India, carrying on her shoulders, an important position in a leading law
firm. Even in U.S., she was running the office of the said law firm. Therefore,
realising the fact that it was she who invoked the jurisdiction of the foreign
Court, the plaintiff did not press hard on the question of jurisdiction at the
time of hearing. Hence, we may have to test the claim of the plaintiff only
with reference to the 3 grounds relatable to Section 13 (b),(d) and (e) of the
Code of Civil Procedure 1908.
11. But
before taking up those 3 grounds, I would first deal with one interesting
submission made by Mr.J.Sivanandaraj, learned counsel for the plaintiff. The
submission is that while a decree of dissolution of marriage, passed by a
foreign court, may require recognition out of necessity, an order relating to
the custody of children, being in the nature of an ancillary order, need not be
recognised. In support of the said contention, the learned counsel relied upon
the 65th Report of the Law Commission of India, which dealt with the topic of
'Ancillary Orders' under Chapter 19. After tracing the history of the
jurisdiction of Courts to pass ancillary orders in matrimonial causes and
Section 8(3) of the English Act of 1971, the Law Commission referred to the
decision of the Court of Appeal in Wood vs. Wood {1957 (2) All E.R. 14}. In
that decision, the Court of Appeal drew a distinction between matters of status
and matters of personal right and obligation. The Court accepted a foreign
decree as terminating the status of marriage, but did not accept a decree
discharging personal rights. The Law Commission also referred to a few American
cases, where the impact of Article IV, Section 1 of the American Constitution,
containing the 'full faith and credit clause' was examined. Thereafter, the Law
Commission recommended the adoption of the principle on which Section 8(3) of
the English Act of 1971, was based. The suggestion made by the Law Commission
in paragraph 19.15 reads as follows:- '19.15. The need for such a provision
arises by reason of the combined operation of the following two factors:-
(a) The
divorce granted by the foreign court is to be recognised under the proposed
law, and the parties would no longer be husband and wife.
(b) At
the same time, since the proposed law is going to provide (in effect) that the
ancillary order passed by the foreign court may not be recognised, the
ancillary order will be of no consequence in India.
The
result will be that there will be an hiatus, in regard to matters governed by
ancillary orders. It is in order to fill up this hiatus that a provision of the
nature suggested above is needed.'
12. Based
on the above recommendation of the Law Commission, the learned Counsel for the
plaintiff contended that the order of the foreign court, in so far as it
concerns the custody of the child, need not be recognised by this court, as it
is only an ancillary order.
13. But
the said contention cannot be countenanced for the simple reason that no law
was made on the basis of the above recommendation. As a matter of fact, the
Supreme court pointed out inY.Narasimha Rao vs. Y.Venkata Lakshmi {(1991)
3 SCC 451} that the labours of the Law Commission poured in its 65th Report on
this very subject, had not fructified eversince April 1976, when it was
submitted. In paras 11 and 12 of the said decision, the Apex Court pointed out
the following:- (i) In matters of status or legal capacity of natural persons,
matrimonial disputes, custody of children, adoption, testamentary and intestate
succession etc., the problem in India is complicated due to the existence of
different personal laws.
(ii) The
distinction between matters concerning personal and family affairs and matters
concerning commercial relationships, civil wrongs etc., is well recognised in
other countries and legal systems. The law in the former area tends to be primarily
determined and influenced by social, moral and religious considerations and
public policy plays a special and important role in shaping it.
(iii) No
country can afford to sacrifice its internal unity, stability and tranquility
for the sake of uniformity of rules and comity of nations. These considerations
are important and appropriate to facilitate international trade, commerce,
industry, communication, transport, exchange of services, technology, manpower
etc. alone.
14. But
interestingly, the decision in Y.Narasimha Rao, took note of only one earlier
decision, viz., the one in Satya
vs. Teja Singh {1975 (1) SCC 120}. The decisions in (i)
Surinder Kaur Sandhu (ii) Elizabeth Dinshaw and (iii) Dhanwanti Joshi, which
were rendered in 1984, 1987 and 1988 (which I shall deal with later) were not
taken note of in Y.Narasimha Rao. The decisions which came after Y.Narasimha
Rao, viz., (i) Sarita Sharma (ii) Shilpa Agarwal (iii) V.Ravichandran and (iv) Ruchi
Majoo, dealt with these issues in greater detail, specifically with reference
to the question of child custody. In the 7 cases in which the Supreme Court
dealt with this issue, specifically on the subject of custody of child, the
Court laid down 3 basic principles, which we shall see later. These principles
were evolved on the basis of International Conventions, to some of which, India
was a party and to others India was not. Therefore, a foreign decree on the
custody of the child cannot anymore be treated as an ancillary order, which can
be disregarded by this court. It may be a temporary order capable of being
varied by the very same court on change of circumstances. Even here, every
child custody order is treated as temporary, entitling the parties to seek
modification of the same at any time,upon change of circumstances. But a
custody order passed by a foreign court of competent jurisdiction cannot be
treated as an ancillary order, which can be disregarded totally. In fact, the
courts in US, do not regard even decrees of divorce obtained in certain
jurisdictions, such as mail order divorces granted by Mexican courts. Therefore
the distinction sought to be made between decrees of divorce and decrees for
maintenance and custody passed by foreign courts, has to be seen in the context
of the law laid down by courts. The field is occupied only by Jugde made law.
Whenever a foreign decree relating to custody of a child is produced, the court
has to decide (i) whether by a summary order, the parties should be directed to
seek redressal from the foreign court itself or (ii) whether the court should
conduct a detailed inquiry into the question of interest and welfare of the
child, taking the foreign decree as one of the several inputs. This is how the
law has evolved from out of the 7 decisions so far rendered by the Apex court.
Therefore, I cannot rely upon the report of the Law Commission and reject the
foreign court order outright. Hence, let me now move on to the other issues.
JUDGMENT NOT GIVEN ON THE MERITS OF THE CASE
15. The
first ground on which the foreign judgment is assailed is that it was not given
on the merits of the case. This contention is based primarily upon the fact
that the plaintiff withdrew her petition for divorce and remained ex parte to the
counter claim made by the defendant. Therefore, a draft text of the judgment
was prepared and presented by the Attorney for the defendant, as seen from the
endorsement towards the end of the "Final Order" dated
1.11.2010, passed by the learned Judge of the Superior Court of Cobb County,
State of Georgia, filed as plaint document No.45. This, according to the
plaintiff, shows that whatever was prepared as a draft text of the judgment by
the Attorney of the defendant, was accepted by the Foreign Court without any
independent application of mind, merely because the plaintiff remained exparte
to the counter claim. Moreover, the plaintiff contends that there is no
discussion in the judgment, on the merits of the case and the evidence
available on record. Even a judgment rendered ex parte in India, is supposed to
contain some discussion on the merits. But there is no discussion even on the
issue of interest and welfare of the child, though the plaintiff has been asked
to pay $ 600 per month to the child. Therefore, it is the plaintiff's
contention that the foreign judgment was not rendered on merits, making it
vulnerable for an attack under section 13 (b), CPC.
16. But
there are 3 strong reasons for me reject the said contention. They are:-
(i) The
preamble part of the Final Order, dated 1.11.2010, contains a gist of what had
actually transpired in Court. The defendant has also filed a Transcript of the
proceedings that really took place on 18-10-2010 in the court hall. The entire
conversation that took place between the learned Judge and the counsel for the
defendant as well as the oral evidence tendered by the defendant on oath, are
recorded verbatim in the transcript of the proceedings. The transcript runs to
about 26 pages and it reflects the active participation of the learned Judge,
while recording the oral evidence of the defendant. To be fair to the whole
system, the evidence of the defendant had been recorded in extenso, despite the
fact that the plaintiff herein did not participate. In other words, the
proceedings were not short circuited merely because they were ex parte
proceedings. What is contained in the transcript, is an uncensored faithful
version of every thing that transpired in Court, except perhaps gestures,
yawning, sneezing and the physical movements of persons present in court.
Therefore, the contention that there was no application of mind, is
uncharitable. As a matter of fact, the questions put by the learned Judge to
the counsel for the defendant, before the commencement of the examination of
the defendant as a witness, runs to nearly 6 pages. The transcript shows that
even in the course of examination of the defendant by his counsel, the Court
intervened and asked several questions. Some of the questions related to the
employment of the plaintiff and the employment of the defendant. At one stage,
the learned Judge had even put a question to the defendant about the reasons
for the plaintiff seeking a divorce or moving back to India. When the defendant
marked exhibits 23 and 24, which were the affidavits of friends and neighbours,
who were aware of the situation and when the counsel asked the defendant to
spell out the contents of a few of them, the learned Judge intervened and said
that he could read the affidavits. Therefore, the judgment was actually a
considered one on merits. (ii) It is seen from the transcript that after the
completion of the evidence of the defendant, the counsel for the defendant
sought the permission of the Court to make a brief statement of the case. The
learned Judge permitted him. Thereafter, a conversation ensued between the
learned Judge and the counsel for the defendant. This is recorded in pages 22
to 26 of the transcript. This conversation revolves around (a) the question as
to whether it would be a temporary or final order (b) the question as to when
the plaintiff was served with the counter claim of the defendant and whether
she had sufficient time (to respond) and (c) the question as to whether the
time limit for the return of the child could be prescribed in such a manner as
to tally with her expected date of return to US in November, as per her
original schedule. This conversation between the Judge and the counsel for the
defendant shows the extent to which the learned Judge analysed each and every aspect
of the matter, in depth. (iii) It is also seen from the transcript that the
defendant asked for $ 1,000/- for child support from the plaintiff, but the
learned Judge slashed it to $ 600/- per month. Before winding up, the counsel
for the defendant seems to have requested the Judge to pass an order that would
result in the incarceration of the plaintiff, without the necessity for filing
a contempt petition, if she failed to comply with the order for the return of
the child. But the learned Judge refused that prayer and said that the
defendant had to file a separate petition for that.
17. Thus
the proceedings that had taken place on 18.10.2010 before the Superior Court of
Cobb County, leaves not an iota of doubt in my mind that despite the plaintiff
being absent, the learned Judge applied his mind to each and every detail,
small or big, before arriving at the decision. The decision does not appear to
be in the nature of ex parte orders that we are familiar with, in this part of
the world and the transcript would actually make any of our Judicial Officers
feel envious of the time, the facility and the infrastructure available there
and the kind of assistance provided to the courts there.
18.
Coming to the issue of draft order circulated by the counsel for the defendant,
the same appears to be an accepted practice in U.K. and U.S.A. As a matter of
fact, in the U.K., 'Practice Direction 40E-Reserved Judgments', which was
issued to supplement the Civil Rules of Practice Part 40, provides for inviting
the views of the parties, whenever a judgment is reserved. Clause 2.1 of those
Practice Directions stipulates that where a judgment is to be reserved, the
Judge may, at the conclusion of the hearing, invite the views of the parties'
legal representatives as to the arrangements made for the handing down of the
judgment. If the judgment will not attract any special decree of
confidentiality or sensitivity, the Court may, under Clause 2.3 of those
Practice Directions, provide a copy of the draft of the judgment to the parties'
legal representatives by 4.00 P.M., on the 2nd working day before handing down
the verdict. Under Clause 2.9, the case will be listed for judgment and the
judgment will be handed over thereafter. Under Clause 3.1 of the Practice
Directions, the parties are entitled to notify the clerk of the Judge, any
proposed corrections to the draft judgment. Under Clause 4.1, the parties must
seek to agree to consequential orders, after the circulation of the judgment.
19. The
above procedure, of circulating copies of the draft of the judgment, to the
parties, even before the pronouncement of the judgment, may be surprising if
not shocking, to a conservative mind. But it has the sanction of law in those
countries, where the Civil Rules of Practice provide for the same. Therefore,
the fact that a draft was circulated, as indicated in the final order dated
1.10.2010 of the Superior Court of Cobb County, does not mean that there was no
application of mind. Nor would it mean, that the judgment was not given on the
merits of the case, so as to fall within clause (b) of Section 13 of the Code.
The decision has been rendered on merits, with respect to each and every issue
viz., (i) divorce (ii) permanent custody (iii) visitation (iv) the time for
return of the child (v) child support (vi) division of properties (vii) health
insurance (viii) marital debts and (ix) alimony. The decision was rendered
after considering the pleadings and the evidence of the defendant, which
included his oral testimony and 24 documents taken as exhibits. It is relevant
to note that despite being an ex parte hearing, the questions put to the
defendant as a witness, were not entirely leading questions requiring mono
syllable answers. There has been an active participation of the learned Judge
throughout the proceedings. Therefore, the contention on the basis of Section
13 (b) CPC, is not well founded.
20.
However, the learned counsel for the plaintiff relied upon the following
passage from the decision of the Supreme court in Y.Narasimha
Rao v. Y.Venkata Lakshmi {(1991) 3 SCC 451}:-
"16.
Clause (b) of Section 13 states that if a foreign judgment has not been given
on the merits of the case, the Courts in this country will not recognise such
judgment. This clause should be interpreted to mean (a) that the decision of
the foreign Court should be on a ground available under the law under which the
parties are married, and (b) that the decision should be a result of the
contest between the parties. The latter requirement is fulfilled only when the
respondent is duly served and voluntarily and unconditionally submits
himself/herself to the jurisdiction of the Court and contests the claim, or
agrees to the passing of the decree with or without appearance. A mere filing
of the reply to the claim under protest and without submitting to the
jurisdiction of the Court, or an appearance in the Court either in person or
through a representative for objecting to the jurisdiction of the Court, should
not be considered as a decision on the merits of the case. In this respect the
general rules of the acquiescence to the jurisdiction of the Court which may be
valid in other matters and areas should be ignored and deemed
inappropriate."
21. The
decision in Narasimha Rao arose under extraordinary circumstances. The parties
married at Tirupati and the husband filed a petition for divorce first in
Tirupati, claiming to be a resident of New Orleans, USA. But subsequently, he
obtained a decree of divorce from the Circuit Court of St.Louis County,
Missouri, claiming that he was a resident of that State for 90 days preceding
the date of filing of the petition. The Supreme court found (i) that the
Circuit court assumed jurisdiction on a patently false statement about the
residential status and (ii) that it granted a divorce on the ground of
irretrievable break down, a ground not available here in India. But in the case
on hand (i) it was the plaintiff who invoked the jurisdiction of the Superior
court of Cobb County, not once, but twice (ii) the parties were married in USA,
as per the laws of the State (iii) the child was born there and was thus a US
citizen. Therefore, this is a case, where the plaintiff who fired the first
shot, cannot ward off the plea of acquiescence. The plaintiff not only invoked
the jurisdiction of the foreign court, but has also benefited by one portion of
the final order passed by that court, viz., the portion relating to divorce. As
pointed out earlier, she has accepted the decree of divorce granted by that
court and is challenging only the portion relating to custody. A person who
seeks to retain a benefit, out of a judgment, cannot be allowed to attack the
other portions of the judgment on the ground that the decision was not rendered
after contest.
22. The
learned counsel for the plaintiff next relied upon the decision in International
Wollen Mills vs. Standard Wool (U.K.) Ltd {AIR 2001 SC 2134}
and contended that since the judgment did not discuss anything about the
interest and welfare of the child at all, it cannot be construed as one on
merits. But the said decision is of more assistance to the defendant than to
the plaintiff. Towards the end of para 29 of the said decision, the Supreme
court approved the view of the Patna High court (in Wazir Sahu vs. Munshi Das
AIR 1941 Pat 109) to the effect the real test to find out whether it was on
merits or not, is to see if it was delivered as a matter of course or by way of
penalty for the non appearance of the defendant. No doubt, it was pointed out
therein that merely on the basis of the presumption under Illustration (e) of
Section 114 of the Evidence Act, an ex parte decree cannot be presumed to be
one on merits. Though an ex parte decree may be a decree regularly passed, it
may not still be a decree on merits, the Supreme Court held. A foreign judgment
would be treated as one given on merits if some evidence had been adduced on
behalf of the plaintiff and if the foreign judgment, however brief, was based
on a consideration of that evidence. It is only in cases where no evidence was
adduced on the side of the plaintiff and yet the Court proceeded to decree the
suit merely because of the absence of the defendant, either by way of penalty
or in a formal manner that the judgment cannot be considered to be one on the
merits of the case. On facts, the Supreme court found in that case that the
foreign court had pronounced judgment simply on the basis of the (i) affidavit
filed by the Solicitor for the respondent, before service of summons on the
appellant and (ii) the affidavit of service filed by the respondent. No
affidavit in evidence nor any oral evidence was let in, before the foreign
court, in that case and this compelled the Supreme court to hold that it was
not a judgment on merits. But in the case on hand, oral evidence was let in and
the defendant marked 24 exhibits. Therefore, the case on hand cannot be equated
to the case before the Supreme court in International Woollen Mills.
23. The
learned counsel for the plaintiff then relied upon a decision of the Punjab
High Court in CDJ 1999 PHC 1070 and a decision of the Division Bench of the
Delhi High court in Emirates Bank International vs. Vijay Talwar (MANU/DE/ 2799/
2009). In the case before the Punjab High Court, the court found in para 26 of
the decision that there was nothing on record to show that the documents said
to have been filed before the London Court were examined by the court. Even the
2 affidavits said to have been filed by the Solicitor before the London court,
did not find a mention in the judgment. Therefore, the Punjab High Court came
to the conclusion that the judgment was not on merits. Similarly, in the case
before the Division Bench of the Delhi High court (Emirates Bank case), two
things were borne out, viz., (i) the Dubai court did not even take care to see
if service of summons on the defendant had been properly effected or not and
(ii) in any case the Dubai court proceeded to decree the claim on the basis of
photo copies of documents taken on record without examining any witness.
Therefore, the Delhi court followed the ratio in International Woollen Mills
(cited supra). In para 16 of its decision, the Delhi High Court extracted the
law laid down in International Woollen Mills to the effect that "where
no evidence is adduced on the plaintiff's side and his suit decreed merely
because of the absence of the defendant either by way of penalty or in a formal
manner, the judgment may not be one based on the merits of the case".
This is exactly the test I have applied to the case on hand and I find that the
judgment of the Superior Court of Cobb County, Georgia, was one on merits.
24. I
must also point out that there are distinguishing factors between the case on
hand and all the 3 decisions relied on by the plaintiff, (one of the Supreme
court, the other of the Punjab High Court and the third of the Delhi High
Court). They are, (i) while those cases arose either out of execution proceedings
or out of suits, filed by persons who secured foreign decrees, for their
enforcement in India, the case on hand is by a person who seeks to set aside
the foreign decree; and (ii) while in those cases the very service of summons
on the defendants before the foreign courts became the subject matter of
controversy, it is not so in the case on hand, since the plaintiff herein was
the plaintiff before the foreign court also. It was the plaintiff who initiated
the proceedings before the foreign court.
25. In Mohamed
Kasim vs. Seeni Pakir Bin Ahmed {AIR 1927 Mad 265}, (referred to by the Supreme
court in Internationa Woollen Mills), a Full Bench of this Court held that a
foreign judgment given on default of appearance of the defendant, on the plaint
allegation, without any trial or evidence, is not a judgment given on the
merits of the case within the meaning of Section 13 (b). But after considering
the said decision of the Full Bench, a Division Bench of this Court held in
Rajarathnam vs. Muthuswami Kangani {AIR 1958 Mad 203}, that though a foreign
judgment might have been passed ex parte, the decision must be deemed to be on
merits, if it was passed on a consideration of the evidence. A similar view was
taken by another Division Bench in Sivagaminatha Pillai vs. K.Nataraja Pillai
{AIR 1961 Mad 385}, that a decree of a foreign Court, even if passed ex parte,
will be binding on the parties thereto and will be conclusive under Section 13,
if it was passed on the evidence taken and the decision was on consideration of
the evidence.
26. In
Ponnuswamy vs. Periasami Pillai {1980 (2) MLJ 155}, this Court was concerned
with a foreign decree for recovery of money passed by a District Court at
Ceylon, by consent of parties. The main contention raised before this Court was
that since the foreign judgment was not rendered on merits, the case would fall
under the exception (b) to Section 13. But S.Rathnavel Pandian, J., as he then
was, held that "what is conclusive under Section 13 CPC, is the
judgment, that is, the final adjudication and not the reasons" and
that "the true test for deciding whether a judgment has been given on
the merits or not is to see whether it has been given as a penalty for any
conduct of the defendant or whether it is based on a consideration of the truth
or otherwise of the plaintiff's case".
27.
Therefore, in as much as the foreign court did not pronounce a verdict merely
on account of the absence of the plaintiff, either by way of penalty or in a
formal manner, but decided the case on the basis of the oral and documentary
evidence let in by the defendant, I have no doubt that it was on the merits of
the case. The fact that oral and documentary evidence were let in by the
defendant is borne out by the transcript of the proceedings dated 18-10-2010.
As pointed earlier, the foreign court, conducted the proceedings very
elaborately, questioning the defendant and his counsel on various aspects. The
court even rejected some of the prayers made by the defendant. Therefore, there
has been an application of mind.
28. As a
last straw, the learned counsel for the plaintiff contended that the
application of mind on the part of the learned Judge, to the evidence on
record, should be reflected in the judgment itself and that merely on the
strength of the transcript of the proceedings, an application of mind to the
ultimate decision, cannot be inferred. To buttress his contention, the learned
Counsel relied upon the decision in Mohinder Singh Gill vs. The Chief Election
Commissioner (AIR 1978 SC 851).
29. But
the contention is far fetched. The structure in which a judgment is produced,
may vary from person to person and from country to country. What is important
is its substance and not form. Unlike in India, the whole proceedings are video
or audio recorded in the courts in a few countries. They form part of the
records. Once they disclose an active participation by a Judge, in the course
of recording of evidence and also while considering the reliefs to be granted,
the ultimate decision rendered by him, cannot be said to be without application
of mind, merely because all the reasons are not incorporated in the judgment
itself. To make a case come within section 13 (b), what is to be seen is
whether the decision was on merits or not. I am not sitting on appeal against
the foreign judgment. The decision in M.S.Gill relates to orders passed by
statutory authorities and it cannot be imported to judgments of courts.
Therefore, the first contention that the foreign judgment was not merits, is
rejected. PROCEEDINGS OPPOSED TO NATURAL JUSTICE :
30. The
next ground of attack is that the proceedings before the foreign court were
opposed to natural justice. Since natural justice is something which is
normally identified with administrative and quasi judicial authorities, it is
necessary to find out the facets of natural justice that are applicable to
court proceedings.
31. For a
long time, the English Courts regarded natural justice (in relation to foreign
judgments) as being confined only to two requirements namely (i) due notice;
and (ii) proper opportunity to be heard. As Denman, CJ said in one of the
earliest cases, "that injustice has been done is never presumed,
unless we see in the clearest light that the foreign law or at least some part
of the proceedings of the foreign court are repugnant to natural justice and
this has even been made the subject of enquiry in our courts".
32.
Quoting from Cheshire on Private International Law, the Supreme court pointed
out in R.Viswanathan (cited supra), that "What the Courts are vigilant
to watch is that the defendant has not been deprived of an opportunity to
present his side of the case". Cheshire indicated two cases. The first
is that of assumed jurisdiction over absent defendant. Second is that of a litigant,
who, though present at the proceedings, was unfairly prejudiced in the
presentation of his case to the Court."
33. But
in paragraphs 40 and 41 of the report, the Supreme court indicated a slight
deviation from the rigidity of the English rule and held as follows :
"....Whatever
may be the content of the rule of Private International Law relating to
'natural justice' in England or elsewhere (and we will for the purpose of this
argument assume that the plea that a foreign judgment is opposed to natural
justice is now restricted in other jurisdictions only to two grounds want of due notice and denial of opportunity
to a party to present case) the plea has to be considered in the light of
statute law of India, and there is nothing in Section 13 of the Code of Civil
Procedure, 1908, which warrants the restriction of the nature suggested. By
Section 13 of the Civil Procedure Code a foreign judgment is made conclusive as
to any matter thereby directly adjudicated upon between the same parties. But
it is the essence of a judgment of a court that it must be obtained after due
observance of the judicial process i.e the court rendering the judgment must
observe the minimum requirements of natural justice it must be composed of impartial persons, acting
fairly, without bias, and in good faith, it must give reasonable notice to the
parties to the dispute and afford each party adequate opportunity of presenting
his case. A foreign judgment of a competent court is conclusive even if it
proceeds on an erroneous view of the evidence or the law, if the minimum
requirements of the judicial process are assured; correctness of the judgment
in law or on evidence is not predicated as a condition for recognition of its
conclusiveness by the municipal court. Neither the foreign substantive law, nor
even the procedural law of the trial be the same or similar as in the municipal
court. As observed by Charwell,J, in Robinson Vs. Fenner (28), "In any
view of it, the judgment appears, according to our law, to be clearly wrong,
but that of course is not enough : Godard Vs. Gray (29) and whatever the
expression 'contrary to natural justice', which is used in so many cases, means
(and there really is very little authority indeed as to what it does mean), I
think that it is not enough to say that a decision is very wrong, any more than
it is merely to say that it is wrong. It is not enough, therefore, to say that
the result works injustice in the particular case, because a wrong decision
always does." A judgment will not be conclusive, however, if the
proceeding in which it was obtained is opposed to natural justice. The words of
the statute make it clear that to exclude a judgment under clause (d) from the
rule of conclusiveness the procedure must be opposed to natural justice. A
judgment which is the result of bias or want of impartiality on the part of a
Judge will be regarded as a nullity and the 'trial coram non judice'
(Vassilades Vs Vassilades (30) and Manik Lal Vs. Dr. Prem Chand (31)."
Therefore, the question whether the procedure adopted by the foreign court was
opposed to natural justice or not is to be considered in the light of the above
principles.
34. But
before doing so, I must also take note of the fact that though natural justice
was traditionally regarded as being confined only to the requirements of (i)
due notice; and (ii) proper opportunity to be heard, the English Courts also
made an attempt to expand the scope of the principles of natural justice, in
later years, by holding that the court may consider whether there had been a
procedural defect such as to constitute a breach of an English Court's views of
substantial justice {Adams Vs Cape Industries PLC (1990 Ch. 433 at 557)}.
However, in Cheshire and North's Private International Law, 13th Edition, the
learned Authors have the following to say, on the issue of expanding the
concept of natural justice, so as to include the theory of 'want of substantial
justice' : 'It opens up a gap between, on the one hand, commercial cases and,
on the other hand, cases of recognition of foreign divorces and annulments,
where the natural justice defence is expressly confined to instances of want of
due notice and opportunity to be heard. "Want of substantial justice
was a much criticised concept, and is no longer a basis for the refusal of
recognition of foreign divorces, etc." The use of the concept of
substantial injustice in relation to the recognition and enforcement of foreign
judgments creates new uncertainty over the ambit of the defence of natural
justice. Cases of procedural unfairness which do not involve a lack of due
notice or opportunity to be heard would be better dealt with under the defence
of public policy.'
35. Apart
from the fact that the theory of "want of substantial justice"
has been criticised even in England, it did not gain recognition here in India.
In Sankaran Govindan Vs. Lakshmi Bharathi {1975 (3) SCC 351}, K.K.Mathew,J
pointed out that even if there was any breach of the rule of procedure
prevailing in the forum where the proceedings were conducted, that would not be
material, as what we have to see is whether the proceedings have been conducted
in substantial compliance with the prevailing notions of fair play. Therefore,
the allegation of violation of natural justice has to be tested on the
touchstone of (i) due service of notice; (ii) opportunity of being heard; and
(iii) compliance with the prevailing notion of fair play.
36. In
Y.Narasimha Rao vs. Y.Venkata Lakshmi {(1991) 3 SCC 451}, the
Supreme court held that what is stated in section 13 (d) of the Code is no more
than an elementary principle on which any civilized system of justice rests.
But in matters concerning family law, the court held, that this principle has
to be extended to mean something more than mere compliance with the technical
rules of procedure. Explaining what would be considered to be sufficient
compliance with the principles of natural justice, the Supreme court laid down
2 tests. They are: (i) It is necessary to ascertain whether the respondent was
in a position to present or represent himself/herself and contest effectively
the proceedings; and
(ii) If
the foreign court has not ascertained and ensured such effective contest by
requiring the petitioner to make all necessary provisions for the respondent to
defend including the cost of travel, residence and litigation where necessary,
it should be held that the proceedings are in breach of the principles of
natural justice.
Therefore,
in addition to the traditional requirements of (i) want of notice (ii)
opportunity of being heard and (iii) compliance with the prevailing notion of
fair play (prescribed in Sankaran Govindan), let me also test the contention
relating to natural justice, on the touchstone of the principles evolved in
Y.Narasimha Rao.
37. As
stated elsewhere, the plaintiff pitches her claim under section 13 (d) of the
Code on the ground that she did not have notice, either of the intention of the
defendant or of the inclination of the Foreign Court to proceed with the final
hearing of the counter claim made by the defendant on 18-10-2010 and that
therefore, the entire proceedings before the Foreign Court and the Final Order
passed therein, without putting the plaintiff on notice of the intention to
proceed with the counter claim, were opposed to the principles of natural
justice.
38. In
order to test the validity of the above contention, we may take note of a few
facts. The facts relevant for this issue, on which there is or there can be, no
controversy, are as follows:-
(i) The
plaintiff and the defendant were earlier married to different persons and those
marriages were already dissolved by competent Courts.
(ii) The
plaintiff and the defendant entered into matrimony in U.S.A., on 23.9.2005, as
seen from the Marriage Certificate, issued by the Probate Court.
(iii) The
child was born on 18.5.2007 at Wellstar Cobb Hospital in the Town of Austell.
Therefore, the minor child is a U.S., citizen.
(iv) On
7.5.2010, the plaintiff applied for divorce in Civil Action No. 10.1.4230.48,
on the file of the Superior Court of Cobb County, Georgia, through her counsel
by name Michael E. Manely. The reliefs sought by the plaintiff included a
prayer for primary custody of the minor child, as seen from the copy of the
petition filed as plaint document No.3.
(v)
Within 4 days of filing of the petition for divorce, the plaintiff came to
India along with the child on 11/12.5.2010, stayed here for about 10 days and
returned on 22.5.2010. The petition was listed for hearing on 24-5-2010, but
somehow summons were not served on the defendant till 1-6-2010.
(vi)
After the service of summons on the defendant on 1-6-2010, the plaintiff filed
a memo on 3.6.2010, into Court for the dismissal of her petition for divorce
without prejudice. Till 1-6-2010, the defendant was kept in the dark about such
a petition.
(vii) On
26.7.2010, the plaintiff returned to India. From India, she filed a second
petition for divorce in Civil Action File No.10.1.8238.48, through the same
counsel that she had earlier engaged. Summons on this Civil Action, were served
on the defendant on 17.8.2010.
(viii)
Immediately, the defendant filed an "Answer and Counter
Claim" on 24.8.2010 through a counsel by name Mr.Todd A. Orston, Esq.
The reliefs sought for in the Counter Claim were the grant of divorce, primary
physical custody of the minor, child support, equitable division of the
properties etc.
(ix) On
the same day viz., 24.8.2010, the counsel for the defendant served a
"Motion for Emergency Hearing" on the counsel for the
plaintiff, expressing an apprehension that the plaintiff may refuse to return
to the U.S., after service of the copy of the "Answer and Counter
Claim".
(x) The
Motion for Emergency Hearing along with the Answer and Counter Claim of the
defendant, were served on the counsel for the plaintiff on 25.8.2010, by fax as
seen from the copy of the same filed by the plaintiff herself as part of plaint
document Nos.23 and 24.
(xi) The
plaintiff filed a "Response to Motion for Emergency Hearing"
on 9.9.2010. She stated therein that the original case was already scheduled
for hearing on 18.10.2010 and that it would be unjust to make her travel to
U.S., for an unnecessary Emergency Hearing.
(xii) On
the Motion for Emergency Hearing, a "Rule Nisi" was taken on
15.9.2010, for informing the parties that a hearing was scheduled on 5.10.2010
and that the child is to be returned to the jurisdiction of that Court. It was
also served on the counsel for the plaintiff. (This Rule Nisi dated 15.9.2010
is filed as plaint document No.25).
(xiii) By
a mail dated 21.9.2010 filed as part of defendant's document No.22 series, the
counsel for the plaintiff herein requested the counsel for the defendant herein
to withdraw the Rule Nisi issued for Emergency Hearing on 5.10.2010 and also
requested for Mediation on 15th October 2010, with a commitment that the
plaintiff herein would return to U.S., by that time. The relevant part of the
mail dated 21.9.2010 sent by the plaintiff's counsel to the defendant's
counsel, reads as follows:- "Also, I received your Rule Nisi,
scheduling this matter for October 5th. As you may know, on August 31 we
scheduled this matter for a Rule Nisi on October 18th. Ms.Thomas had already
made arrangements for her return for the week before the hearing to prepare.
I am
writing to ask that you consent to the Nisi on the 18th and withdraw the Nisi
on the 5th. Additionally, I think it would be beneficial to mediate this matter
on the 15th, while Ms.Thomas is here. We would need to find a mediator who
could work with our date. Are you available on that day?".
(xiv) In
response to the said mail dated 21.9.2010, the defendant's counsel sent a mail
dated 24.9.2010 (part of defendant's document No.22 series), making it clear
that the defendant was agreeable to withdraw the Motion for Emergency Hearing,
if the plaintiff assures to return the child to Georgia for the hearing on
18.10.2010.
(xv) By a
mail dated 27.9.2010, the counsel for the plaintiff herein confirmed to the
counsel for the defendant that the plaintiff would return to U.S., with the
child and that he would like to mediate on 15.10.2010.
(xvi) By
a mail dated 28.9.2010, the defendant's counsel agreed to withdraw the Motion
for Emergency Hearing and also agreed to the request for Mediation, on the
basis of the assurance given by the counsel for the plaintiff that she would
return to U.S.A., with the child.
(xvii)
Consequently, by a letter dated 29.9.2010, the counsel for the defendant also
made a request to the Staff Attorney of the Court, requesting the Judge to
remove the case from the Calendar for 5.10.2010, stating very clearly that it
was being done on the basis of the assurance given by the plaintiff's counsel
to return the child for the hearing scheduled on 18.10.2010.
(xviii)
It appears that thereafter, the counsel for the plaintiff and the counsel for
the defendant also had discussions and a referral was made to Mediation by the
ADR Office. This is seen from a letter dated 8.10.2010 sent by the counsel for
the plaintiff to the defendant's counsel, informing him that they (the
plaintiff and her counsel) had given a deadline of 11.10.2010 for selecting a
Mediator. In this letter dated 8.10.2010, the counsel for the plaintiff
asserted that the plaintiff was returning on the 15th and that she would come
to the house to stay along with the child. (xix) But on 14.10.2010, the
plaintiff herein sent a mail to the defendant. In this mail filed as plaint
document No.40, she claimed that the defendant was well aware of their
relocation to India and that she would come to U.S., for the hearing of the
case on 18.10.2010, if certain assurances were made. The relevant part of the
mail, reads as follows:-
"Hence,
if you can provide me with a written assurance that I can return to India with
Rhea to care of my work, commitments here and Rhea can go back to school
without disruption of her classes and that you agree that we can once again
come back to the US during thanksgiving as originally planned and during Rhea's
December vacation for a one month period. During Rhea's vacation in December
either she will come to the US or you can choose to be with her in India (this
will be your choice), if this can be agreed within 24 hours I will come for the
hearing. I believe this is really a fair proposition. If not, I fear you are
calling us to just ensure we are trapped in place where I have no family or
income or support." (xx) The above mail dated 14.10.2010 appears to be
a sudden twist in the drama. Till 8.10.2010, as it appears from the letter of
the plaintiff's counsel in U.S., the plaintiff had been repeatedly promising to
return to U.S., with the child on 15.10.2010. But the mail of the plaintiff
dated 14.10.2010, refusing to go over to U.S., unless an assurance, as
extracted above was given, was really a bolt out of the blue. (xxi) Eventually,
the plaintiff not only failed to return to U.S., with the child on 15.10.2010,
but also failed to turn up for the hearing of the case on 18.10.2010.
(xxii) On
18.10.2010, the counsel for the plaintiff informed the learned Judge in the
Court of Cobb County, that the plaintiff was dismissing her petition for
divorce. Immediately, the defendant who was present with his Attorney,
announced that he would proceed with the counter claim. Therefore, the learned
Judge proceeded to hear the counter claim. As pointed out elsewhere in this
order, the defendant examined himself as a witness and marked 24 exhibits in
order to prove his counter claim. Thereafter, the Court passed an order on
1.11.2010, after 13 days of the conclusion of the hearing.
39. The
sequence of events narrated above, which are borne out by records reveal the
following:-
(i) It
was the plaintiff who first invoked the jurisdiction of the Court of Cobb
County, by filing a petition for divorce on 7.5.2010, then leaving the country
for India on 11.5.2010, but returning to U.S., on 22.5.2010 and later
requesting the court to dismiss her petition for divorce on 3.6.2010. The
defendant was kept completely in the dark about this first petition, until
1-6-2010.
(ii) It
was the plaintiff who invoked the jurisdiction of the Court of Cobb County, for
a second time, by filing another petition for divorce on 17.8.2010, even while
she was in India. It is relevant to note here that the second petition was
filed by the plaintiff when she was in India.
(iii) The
plaintiff was aware of the "Answer and Counter Claim" filed
by the defendant on 24.8.2010, whereby the defendant sought the dismissal of
the plaintiff's claim apart from seeking divorce and primary physical custody
of the child.
(iv) The
plaintiff did not choose to file any response to the counter claim made by the
defendant on 24.8.2010.
(v) The
defendant's Motion for Emergency Hearing, applied on 24.8.2010, was opposed by
the plaintiff through her response dated 9.9.2010. In that "Response
to the Motion for Emergency Hearing" filed on 9.9.2010, the plaintiff
made it clear that she was due to go over to U.S., for the hearing originally
scheduled for 18.10.2010.
(vi)
Through her counsel, the plaintiff gave two assurances viz., (A) that she would
return to U.S., with the child on 15.10.2010 to participate in the hearing
scheduled for 18.10.2010 and (B) that a Mediation could take place through the
ADR Centre after her arrival.
(vii)
Contrary to the assurances that the plaintiff was giving through her counsel
during the period from 9.9.2010 till 8.10.2010, she suddenly demanded an
assurance from the defendant, for the first time through her mail dated
14.10.2010. Thereafter, taking umbrage under the said mail, she not only failed
to turn up for the hearing on 18.10.2010, but also sought a dismissal of her
own petition for divorce, despite being fully aware of the existence of the
counter claim.
40. It is
interesting to note that the State of Georgia has an Enactment called
"Uniform Child Custody Jurisdiction and Enforcement Act",
known in short as "Georgia UCCJEA". Article 19-9-70 of the
said Act, prescribes the procedure for the Court to order a party to a child
custody proceeding to appear before the Court with or without the child. Clause
(d) of Article 19-9-70 stipulates that if a party to a child custody
proceeding, who is outside the State of Georgia, is directed to appear or
desires to appear personally before the Court, with or without the child, the
Court may require another party to pay reasonable and necessary travel and
other expenses of the party so appearing and of the child.
41. In
this case, as pointed out earlier, it was the plaintiff who filed the case
before the Superior Court of Cobb County. The defendant filed a response and a
counter claim. The date of hearing of the case was fixed as 18.10.2010. From
24.8.2010 till 14.10.2010, the plaintiff maintained that she would return to US
with the child before 15.10.2010. She also had a confirmed return journey
ticket for 23-11-2010. But on 14.10.2010, she sent a mail to the plaintiff
asking for several assurances. On the premise that the defendant did not
respond to her mail dated 14.10.2010, the plaintiff did not appear before Court
on 18.10.2010. On the contrary, she requested the Court to dismiss her petition
for divorce. At the time when she made that request, to dismiss her petition,
the plaintiff had an option to make a request to the Superior Court of Cobb
County, under Article 19-9-70 (d), to require the defendant to pay reasonable
and necessary travel and other expenses for so appearing with or without the
child. In other words, the last minute demand made by the plaintiff by her mail
dated 14.10.2010 for appearing for the hearing on 18.10.2010, could have been
made by her even to the Court under Article 19-9-70 (d). A person who is an Attorney
at Law, who invoked the jurisdiction of the Foreign Court, cannot now take
advantage of her own mistake in not availing a provision of the local law which
was available to her benefit.
42. It is
in the background of these facts that we have to see if her allegation that the
whole proceedings before the Court of Cobb County, were opposed to the
principles of natural justice, is justified or not.
43.
Interestingly, the grievance of the plaintiff is not that she did not have due
notice of the counter claim itself. Her grievance is that she was not put on
notice of the intention of the defendant and the intention of the court to
proceed with the hearing of the counter claim.
44. But
the said grievance, in my considered view, is wholly unjustified. The petition
for divorce filed by the plaintiff and the counter claim made by the defendant,
were both slated for hearing on 18.10.2010. Every case is listed before every
Court, only with the intention of taking it up for hearing, irrespective of
whether it actually happens or not. Therefore, the listing of the case on
18.10.2010 before the Court of Cobb County, was with the intention of taking up
both the petition for divorce filed by the plaintiff and the counter claim
filed by the defendant. No client is entitled to think that a case will be
listed for hearing on one day and that the Court will also put the client on
notice of its intention to hear it on that date. Once a case is listed for
hearing, on a specified date, with the consent of the counsel on both sides, it
reflects the intention of the Court to take it up for hearing. There is no
obligation on the part of the Court to put on notice, a party who fails to
appear on the appointed day and who also withdraws her claim on that date.
45. On
18-10-2010, when the petition for divorce filed by the plaintiff and the
counter claim made by the defendant came up for hearing, the plaintiff's
counsel Mr. Manely was present in court. This is seen from the preamble to the
final order dated 1-11-2010. At the commencement of the hearing, the
plaintiff's counsel informed the court of the plaintiff's decision to have her
petition dismissed. Immediately, the counsel for the defendant informed the
court that he would proceed with the counter claim. In the course of hearing of
the counter claim, the plaintiff's counsel appears to have walked out of the
court hall as he was disengaged by the plaintiff. In the transcript of the
proceedings that happened before court on 18-10-2010, (filed as one of the
defendant's document) it is recorded in page no.4 that Mr.Manely left the court
saying that he was no longer involved in the case. Therefore, it is clear that
the plaintiff's counsel was very much aware of the intention of the defendant
to proceed with the counter claim. The plaintiff cannot now take advantage of
her own action in dismissing her claim and disengaging her counsel at the last
minute on the date of the hearing and contend that the proceedings were
vitiated for want of due notice.
46. Even
if the petition for divorce had been filed by the plaintiff in an Indian Court
and the defendant had filed a counter claim, our Court would have done the same
thing as the Superior Court of Cobb County had done in this case. This is the
mandate of the law under Order VIII, Rules 6A to 6G of the Code of Civil
Procedure, 1908. Under Rule 6D of Order VIII, CPC, the Court is obliged to
proceed with the counter claim, in cases where the suit of the plaintiff is
stayed, discontinued or dismissed. Rule 6E goes a step further by entitling the
Court to pronounce judgment against the plaintiff in relation to the counter
claim, if the plaintiff makes default in putting in a reply to the counter
claim made by the defendant.
47. As
pointed out earlier, the plaintiff filed the petition for divorce on 17.8.2010.
The defendant filed his "Answer and Counter Claim" on
24.8.2010. The Answer and Counter Claim were served on the plaintiff's counsel
along with a Motion for Emergency Hearing. For reasons best known to her, the
plaintiff chose to respond to the Motion for Emergency Hearing, but not to the
counter claim. Therefore, if the case was before an Indian Court, Rule 6E of
Order VIII of the Code, could have been validly invoked, due to the failure of
the plaintiff to put up a reply to the counter claim. If really this had
happened, the plaintiff would not be heard to allege any violation of the
principles of natural justice.
48. The
plaintiff, as pointed out by the defendant, is no ordinary litigant, but a
legal practitioner, heading a unit of one of the leading law firms of the
country. Therefore, she must be deemed to be aware of the consequences of (i)
her non appearance before the Court of Cobb County, whose jurisdiction she
herself invoked voluntarily, not once but twice and (ii) her dismissal of her
petition for divorce, at the last minute, despite the pendency of the counter
claim.
49. As
pointed out by a Division Bench of this Court, to which I was a party, in
Dr.C.Chendroyaperumal v. National Institute of Port Management {2006 (4) MLJ
989}, the principles of natural justice are for thoroughbred horses and not
wild horses. Therefore, a person who initiates proceedings before a Court of
competent jurisdiction and withdraws it at the last minute, after a counter
claim is lodged, can never be allowed to contend that the Court should have put
him on notice of its intention to proceed with the hearing of the counter
claim. Such a contention can be termed only as an unnatural demand for natural
justice. What makes the cry of the plaintiff for natural justice foul, is the
fact that even today she seeks to retain a benefit that has accrued out of the
very same order that she assails. She has accepted that portion of the order of
the American court by which her marriage has been dissolved. Therefore, to term
the proceedings before the Court of Cobb County as opposed to the principles of
natural justice, is very uncharitable, especially from a litigant who is also a
practitioner of law.
50. In
any case, the hearing of the counter claim took place on 18.10.2010, when the
defendant was examined on oath and 24 documents were marked as exhibits. But
the decision of the Court was pronounced only on 1.11.2010. The fact that the
hearing of the counter claim had taken place on 18.10.2010 and that the written
orders were expected in a few days, was posted by the defendant in the net on
20.10.2010 itself. The plaintiff herself has filed a copy of this mail as her
document No.43. Even then, she did not take any steps from 20-10-2010 till
1.11.2010 when the Court pronounced final order. Just as the plaintiff was
permitted to file her petition for divorce on 17.8.2010 through her counsel in
U.S., even while she was in India, it was possible for her to make her counsel
file an application for reopening the hearing, at least after coming to know
through the mail dated 20.10.2010, of the hearing that took place on
18.10.2010. The plaintiff did not choose to do it.
51. Now
we may look at her conduct after the mail dated 20.10.2010. In response to the
mail dated 20.10.2010 sent by the defendant, the plaintiff sent a reply dated
20.10.2010. She has filed a copy of this mail as plaint document No.44. In that
mail, she never even whispered that the hearing of the counter claim was
proceeded, in violation of the principles of natural justice, without due
notice to her. Therefore, her claim that the entire proceedings were opposed to
the principles of natural justice, is entirely frivolous.
52. The
other limbs of the argument relating to violation of the principles of natural
justice, relate to (i) proper opportunity of being heard (ii) notions of fair
play and (iii) arrangements to be made to enable a woman to contest the
proceedings. These limbs of the contention also have to fail, in view of the
fact (i) that it was she who initiated the proceedings, (ii) that she was put
on notice of the counter claim as well as a Motion for Emergency Hearing (iii)
that she did not choose to reply to the counter claim (iv) that she repeatedly
assured the defendant that she would attend the hearing on 18.10.2010 and that
a Mediation could also be arranged and (v) that at the last minute, she refused
to attend the hearing, but requested her petition to be dismissed. Therefore, a
person who was aware of the date of hearing and who was represented by counsel
on the date of the hearing (at least for the purpose of getting her petition
dismissed), cannot be allowed to contend that proper opportunity of hearing was
not granted. What transpired on 18.10.2010 was a matter of choice made by the
plaintiff and not a matter of chance. A person who fails to avail the
opportunity of hearing, cannot contend that there was no proper opportunity.
Therefore, the attack to the foreign judgment under Section 13(d) is bound to
fail.
53. Even
if the tests prescribed in Y.Narasimha Rao are applied, the plaintiff had a
return journey ticket to US, only with which she always assured to return for
the hearing fixed for 18-10-2010. Admittedly she had an add-on credit card, for
which the payments were to be made by the defendant. In any event, the court,
while passing the order dated 1-11-2010, fixed the date for the plaintiff's
return to coincide with the date on which she had a confirmed booking for her
return journey. As pointed out repeatedly, the date of hearing 18-10-2010 was
not a date fixed at the instance of the defendant in respect of any case
independently filed by him. It was a date fixed for the hearing of a case filed
by the plaintiff herself. Therefore, the plaintiff cannot take refuge under the
dictum of Y.Narasimha Rao, just by relying upon a mail sent on 14-10-2010 to
create a record. In paragraphs 20 and 21 of the decision in Y.Narasimha Rao,
the court held as follows:- "20. .. .. .. .. ..
The
jurisdiction assumed by the foreign Court as well as the grounds on which the
relief is granted must be in accordance with the matrimonial law under which
the parties are married. The exceptions to this rule may be as follows: (i)
where the matrimonial action is filed in the forum where the respondent is
domiciled or habitually and permanently resides and the relief is granted on a
ground available in the matrimonial law under which the parties are married;
(ii) where the respondent voluntarily and effectively submits to the
jurisdiction of the forum as discussed above and contests the claim which is
based on a ground available under the matrimonial law under which the parties
are married; (iii) where the respondent consents to the grant of the relief
although the jurisdiction of the forum is not in accordance with the provisions
of the matrimonial law of the parties.
21. The
aforesaid rule with its stated exceptions has the merit of being just and
equitable. It does no injustice to any of the parties. The parties do and ought
to know their rights and obligations when they marry under a particular law.
They cannot be heard to make a grievance about it later or allowed to bypass it
by subterfuges as in the present case."
The case
on hand obviously falls within the exceptions stated above. Moreover, the
plaintiff had ample opportunities to take recourse to Article 19-9-70 (d) of
Georgia UCCJEA, which I have extracted earlier. Despite the fact that the case
was filed by her in the first instance, she could have applied to the American
court for remedy under the said Article for payment of the expenses for travel
and stay. If the court had refused, she may perhaps be entitled to invoke the
tests laid in Y. Narasimha Rao. Since she failed to do it, the challenge to the
order on the ground of violation of natural justice should also fail. FRAUD AND
MISREPRESENTATION
54. The
next ground on which the foreign judgment is assailed is that it was obtained
by fraud and misrepresentation by the defendant. In paragraph 29 of the plaint,
the plaintiff has claimed that she withdrew her petition for divorce on the
bona fide belief that the defendant would also be withdrawing his counter
claim. She has claimed that the root cause of all the problems was perceived by
the defendant to be her divorce petition and that therefore based upon the representations
and assurances, she withdrew the petition. But according to her, the defendant
pursued his counter claim and fraudulently obtained a decree.
55. It is
contended by the plaintiff in paragraph 34 of the plaint that a
misrepresentation was made to the Court by the defendant, as though he was not
aware of the plaintiff's shifting to India. The decision to come to India,
according to the plaintiff, was consensual and that therefore, the Court of
Cobb County was misled by the defendant by false representations.
56. In
Sankaran Govindan (cited supra), K.K.Mathew,J cited De Gray, CJ in The Duchess
of Kingston's case to explain the nature of fraud that would vitiate a
judgment. It was pointed out therein that though a judgment would be res
judicata and not impeachable from within, it might be impeachable from without.
In other words, it may not be permissible to show that the court was mistaken.
However, it could be shown that it was misled. There is a clear distinction
between mistake and trickery. The clear implication of the distinction is that
an action to set aside a judgment cannot be brought on the ground that it has
been decided wrongly, namely that on the merits, the decision was one which
should not have been rendered, but that it can be set aside if the court was
imposed upon or tricked into giving the judgment. There is a clear distinction
between mistake and trickery.
57. To
bring out the distinction between a court being mistaken and a court being
misled, the Supreme Court referred to English, Canadian and American decisions
and thereafter summed up the legal position in paragraphs 31 and 32 as follows
:
"Although
there is general acceptance of the rule that a foreign judgment can be
impeached for fraud, there is no such accord as to what kind of fraud is
sufficient to vitiate a foreign judgment. Must it be only fraud which has not
been in issue or adjudicated upon by the court which gave the judgment ? Must
the court in the subsequent action where fraudulent misleading of the foreign
court is alleged refrain from going so far in its search for such fraud as to
re-try the merits of the original action ? The wide generality of the
observations of Coleridge,CJ in Abouloff Vs Oppenheimer (supra) and of
Lindley,J in Vadala vs Lawes (supra) in favour of the vitiating effect of fraud
to the utter disregard of the res judicata doctrine certainly departs from the
usual caution with which the courts proceed when dealing with a subject, the
law of which is still in the making. We have already referred to what Coleridge,
CJ said in Abouloff Vs. Oppenheimer, namely that the question whether the
foreign court was mislead in pronouncing judgment never could have been
submitted to it, never could have been in issue before it and, therefore, never
could have been decided by it. This is, generally speaking, true. But it is
also axiomatic that the question of credibility of witnesses, whether they are
misleading the court by false testimony, has to be determined by the tribunal
in every trial as an essential issue, decision of which is a prerequisite to
the decision of the main issue upon the merits. A judgment on the merits,
therefore, necessarily involves a res judicata of the credibility of witnesses
in so far as the evidence which was before the tribunal is concerned. Thus,
when an allegation is made that a foreign judgment is vitiated because the
court was fraudulently mislead by perjury, and issue is taken with that
allegation and heard, if the only evidence available to substantiate it is that
which was used in the foreign court, the result will be a re-trial of the
merits. It is hard to believe that by his dictum Lord Coleridge, CJ ever
intended, despite the abhorrence with which the common law regards fraud, to
revert to the discredited doctrine that a foreign judgment is only prima facie
evidence of a debt and may be re-examined on the merits, to the absolute
disregard of any limitation that might reasonably be imposed by the customary
adherence to the res judicata doctrine. Duff,J with his usual felicity put the
point thus in MacDonald Vs.Pier (1923 SCR 107, 120-121): 'One is constrained to
the conclusion upon an examination of the authorities that there is
jurisdiction in the court to entertain an action to set aside a judgment on the
ground that it has been obtained through perjury. The principle I conceive to
be this : such jurisdiction exists but in the exercise of it the court will not
permit its process to be made use of and will exert the utmost care and caution
to prevent its process being used for the purpose of obtaining a re-trial of an
issue already determined, of an issue which transivit in rem judicatam, under
the guise of impugning a judgment as procured by fraud. Therefore, the perjury
must be in a material matter and therefore it must be established by evidence
not known to the parties at the time of the former trial.' As Garrow,J said in
Jacobs Vs Beaver (supra) the fraud relied upon must be extrinsic or collateral
and not merely fraud which is imputed from alleged false statements made at the
trial which were met with counter statements and the whole adjudicated upon by
court and so passed into the limbo of estoppel by the judgment. That estoppel
cannot be disturbed except upon allegation and proof of new and material facts
which were not before the former court and from which are to be deduced the new
proposition that the former judgment was obtained by fraud."
58. It is
seen from the statement extracted above, that the supreme court first addressed
itself to the question as to whether in an action alleging fraudulent
misleading of the foreign Court, the court would refrain from going so far in
search of such fraud, as to retry the merits of the original action. Then the
Supreme Court pointed out that the fraud relied upon, must be extrinsic or collateral
and not merely fraud which is imputed from alleged false statements made at the
trial which were met with counter statement and the whole adjudicated upon by
Court and so passed into the limbo of estoppel by the judgment. That estoppel,
according to the Supreme Court, cannot be disturbed except upon allegation and
proof of new and material facts which were not before the former Court and from
which are to be deduced the new proposition that the former judgment was
obtained by fraud.
59.
Similarly, the Supreme Court pointed out in Sathya vs. Teja Singh, that
"in order to render a foreign decree subject to collateral attack on
the ground of fraud, the fraud in procurement of the judgment must go to the
jurisdiction of the Court". Keeping the principles laid down in
Sankaran Govindan and Sathya, if we analyse the facts of the case, it will be
clear that the Foreign Court was neither mistaken nor misled by the defendant.
On the contrary, it was the plaintiff, who is guilty of misleading the defendant
even with regard to the Court proceedings. When the defendant moved a Motion
for Emergency Hearing, along with his answer and counter claim on 24.8.2010,
the plaintiff managed to make the counsel for the defendant agree not to press
for an Emergency Hearing on 5.10.2010 by promising two things viz., (i) that
she would return to U.S., along with the child and be present in Court for the
hearing and (ii) that there could also be a mediation on 15.10.2010. Going back
on the repeated assurances, the plaintiff failed to return to U.S., and also
sought the withdrawal of her petition for divorce, at the last minute.
60. The
only ground on which the plaintiff alleges fraud is that after having consented
for their permanent re-location in India, the defendant misled the Foreign
Court as though he was unaware of her re-location. But this would hardly amount
to a fraud or misrepresentation. The question as to whether the defendant
agreed for the plaintiff's permanent re-location in India or not, has become a
contentious issue. While the plaintiff claims that by consent, she was
relocated in India, the defendant disputes it. As a matter of fact, the
defendant has been consistent in contending that there was no agreement for
permanent relocation.
61.
Assuming for a moment, that the plaintiff came to India in July 2010 by
consent, for a relocation, there was no necessity for her to file a petition
for divorce on 24.8.2010 in the U.S., Court, while she was in India. Even in
the petition for divorce filed by the plaintiff, it is not stated that by
consent of parties, she had shifted to India permanently. On the contrary, it
was stated by the plaintiff in her complaint for divorce that "she was
currently vacationing in India".
62.
Moreover, in the Motion for Emergency Hearing, the defendant made an allegation
that the plaintiff took the minor child to India for a vacation with an
understanding that she would return the minor child to U.S., at the end of the
vacation. In paragraph-7 of the Motion for Emergency Hearing, the defendant
specifically pleaded that after reaching India, the plaintiff notified the
defendant about her intention to relocate permanently in India. This stand
taken by the defendant in his Motion for Emergency Hearing, was stoutly denied
by the plaintiff in her response to the Motion for Emergency Hearing. Thus, the
question as to whether the parties agreed for the permanent relocation of the
plaintiff and the child to India, became a contentious issue.
63. Once
an issue becomes contentious, it is for the parties to lead evidence in support
of their rival contentions. A party who fails to appear before Court and lead
evidence in respect of a contentious issue cannot even accuse the opposite
party of misleading the Court and of perpetrating a fraud upon the Court. What
is done behind the back of a person, is what would actually amount to fraud. If
a person takes a particular stand with regard to a matter in issue,
consistently, to the knowledge of another, he cannot be accused of misleading
the court, when he takes the same stand in court.
64. As a
matter of fact, the transcript of the Foreign Court proceedings filed by the
defendant as one of his documents would show that the defendant was honest
enough to bring to the notice of the Court, a mistake that had crept in to the
transcript. To a question by his counsel, which appears in page 18 of the
transcript, the defendant appears to have replied that he was not in Town when
the plaintiff actually packed up and left for India. The copy of the transcript
was made applicable to the defendant on 16.6.2011. Upon perusal of the same,
the defendant found a few mistakes and applied to the Court for correction of
the mistakes. One of the mistakes which the defendant pointed out was that he
was not in Town when the plaintiff packed up and shifted her property to India
and that she used the time when he was out of Town to remove the personal
property and that he was in Town when she actually left.
65. It
must be remembered that the entire transcript is filed in this case by the
defendant and not by the plaintiff. The plaintiff did not even have a copy of
the transcript. Therefore, it was possible for the defendant to have left the
transcript of the proceedings to remain as such without any corrections. The
plaintiff was not even aware of the mistake that had crept in the transcript.
Yet the defendant took steps to have the mistakes corrected in the transcript,
disclosing the fact that there was no attempt on his part to mislead the
Foreign Court.
66. The
circumstances under which the plaintiff left U.S., were narrated by the
defendant to the Court of Cobb County on the following lines, which itself
would disclose that there was no attempt at misleading the Court or playing
fraud upon the Court:-
"The
first time she ever broke the news of having to want a divorce was April 22nd
of 2010. On May 7th she filed a divorce suit in this very august Court but she
did not serve the papers until June 1st when I strongly refused her to go back
to India.
But once
I agreed to a temporary trip of three to four months, she immediately wanted to
dismiss her divorce suit on June 3rd of 2010 in this august Court.
And she
left for India on June 26th, 2010, with the kid under the real notion that it's
going to be a temporary trip.
But immediately
after landing in India, within 18 days she again filed a second divorce suit in
this county Court again and sued me, which is the current selection case.
So now,
since she is having some concerns of probably not having the facts straight,
she is trying to file a dismissal here and kind of like go and file a similar
complaint back in India because she feels that it might be a favourable Court
for her. And I'm not an Attorney. So I'm literally at the mercy of the justice
system here and in India."
67.
Moreover, the actual arrangement reached between the parties, is reflected by a
mail dated 18-5-2010. When the plaintiff was in India during the period from
12.5.2010 to 22.5.2010, the defendant sent a mail on 18.5.2010 to the sister
and brother-in-law of the plaintiff. A copy of this mail is filed as plaint
document No.12. A perusal of this mail shows that when the relationship got
strained by the end of April 2010, the plaintiff threatened to return to India
with the child. This mail also discloses that attempts were made by the
plaintiff's sister and brother-in-law to arrive at a mediated settlement. The
points that the defendant wanted to be part of any amicable settlement, were
indicated by him in the said mail, some of which are extracted as under:- ''1.
Between May 13th and May 18th, you had several rounds of conversations with
Dorothy and suggested the following for both of us to consider.
2.
Dorothy will take Rhea to Chennai (Madras) on a round-trip ticket somewhere
towards last week of July or first week of August returning back to the US
sometime in early January 2011.
3. The US
Courts will continue to be the venue and of natural jurisdiction because of
Rex's domicile and residency, notwithstanding the fact that Dorothy will be
travelling to Chennai on a temporary experiment. She will continue to be the
tax-payer at Cobb-County, Georgia and will continue to own the house and other
liabilities, including driving-license and an address.
8.
Dorothy will try a temporary assignment/ experiment of working in her Chennai
Office of her current employer Kochhar & Company.
9. During
this time, she will rent her own apartment and will put Rhea on a temporary
play-school. She would want to experiment and see how much it costs for her and
Rhea and so she will manage her salary/monies that she will get in India. I
offered to send in additional monies from US, if for any reason, there is
shortage of monies in Chennai for Dorothy and Rhea.
11. Rhea
will be travelling to India, strictly on temporary basis on her current Indian
visitor visa. Due to the new Government of India regulations, subsequently to
the American terrorist Headley's case, a visitor to India on tourist visa
cannot re-enter India for a minimum period of 2 months and so between now and July
last week, Rhea cannot travel to India.
12.
Dorothy will file for a ReEntry Permit/Advance Parole with the US Citizenship
and Immigration Services to ensure that her 5-6 month stay for the Chennai
experiment does not throw her Green-Card into any disarray. Dorothy should make
sure this information of the re-entry-permit is shared with me as well.
13. Rex
will try his best to visit Dorothy and Rhea in December 2010, as he usually
visits India for Christmas.
14.
Dorothy will bring Rhea back to the US in January 2011 for at least a minimum
of 2 weeks. This way, Rhea will get to visit her friends, her former
school-teachers, neighbours and will also be able to spend some quality time in
her own great country, the United States, for which she needs nobody's permission!
In other words, Rhea's citizenship and her inalienable rights should be
respected by Dorothy and everybody.
15.
Besides, it is during this January 2011, that Dorothy should make up her mind
as to whether her Chennai experiment worked or failed. If it failed, she will
come back to the US permanently, discarding this temporary experiment in
Chennai.
17.
Assuming that Dorothy wants to continue the experiment, she will again take
Rhea back to India to continue with her experiment with the Re-entry permit she
already had and it is around this time in January or February 2011, that Rhea
will be having her P10 Card for the first time.
20. On or
around April-June 2011, i will try to visit India on a temporary basis to see
if both Dorothy an Rex can continue to rear Rhea in India.
21. As
part of the mediation brokered, it comes at a tremendous cost to me personally
because it totally does not consider my career concerns and ambitions with me
having a very good position in the evolving areas of Smart Grid and Smart
Meters in the Energy and Power Industry. Yet, I am ready to throw everything
and do what is the right thing for my poor 3 year old daughter Rhea's sake,
whose birthday happens to be today! So, I am ready to come as a pauper,
throwing everything that I had painfully earned in this great country US only because I feel it is very cruel to
subject Rhea to a divorce and bitter custody fight. I will continue to do
everything in my capacity to ensure that Rhea has a smooth childhood. When she
grows as a big girl, I want her to know that her Dad tried EVERYTHING just for
HER SAKE gave up everything he painfully
assembled, just to spare her of any ordeal.
22. Any
conflict at this stage should be resolved through negotiations/mediation and if
that should fail, then take legal recourse with the Court of jurisdiction being
the US Courts, especially the one with the natural jurisdiction, which will
continue to be the Superior Court of Cobb County of the State of Georgia, US
because this is where our marriage was solemnized and registered and this is
the county that we all (Rhea, Dorothy and I) are residents and Rhea being a US
Citizen and potentially around this time-frame. I could be a US citizen as
well.
24.
Dorothy should resist all attempts to avoid International Parental Child
Abduction. This involves, not taking Rhea to a 3rd country from India. As such,
she should entrust Rhea's passport with Prabhu Uncle-Sheela Akka, while in
India. Likewise, up until late July 2010/early August 2011, Dorothy should
entrust Rhea's passport with Rex or any other mutually agreeable 3rd party
because Dorothy will continue to have Rhea by her side and it is only fair that
Rhea's passport not be with her as well.
26. If at
any time, Dorothy refuses to bring back Rhea to her country of citizenship (US)
after repeated requests from Rex in the US, then Rex will move the Courts in the
US for ex parte custody orders to properly file a complaint with the US State
Department for International Parental Child Abduction thereby making Dorothy
come to the US to fight in the US Courts to decide on the terms of divorce and
custody of Rhea in a fair and legal manner.
68. As
stated earlier, the plaintiff was in India from 12.5.2010 to 22.5.2010 when the
above mail was sent by the defendant. She returned to US on 22.5.2010 and all
the arrangements such as (i) sale of the house (ii) sale of the car (iii)
withdrawal of the child from the school (iv) admission of the child in a school
in Chennai (v) hiring an apartment in Chennai etc., had taken place only
thereafter, partly when she was in US and partly after she came to India by the
end of July 2010. If the plaintiff had arrived in India on 26.7.2010, with any
respect for the above settlement, she should not have filed a second petition
for divorce, within 20 days of her arrival in India, on 16.8.2010, through her
counsel. The filing of the petition for divorce on 16.8.2010, shows that all
the conditions subject to which the defendant agreed for a settlement, by his
mail dated 18.5.2010, were thrown to the winds by the plaintiff. Therefore, the
contention of the defendant that his consent was for a temporary relocation,
subject to certain conditions, on an experimental basis, appears to be
acceptable. This is clear also from another mail dated 26.7.2010 filed as
defendant's document No.16. In para 2 of the said mail, the defendant made it
clear, even before the plaintiff left US that he agreed to her going to India
only temporarily. In the penultimate paragraph of the same mail, he again
reiterated that she could go only temporarily. When the defendant perceived the
relocation only as temporary at all points of time and that too subject to
certain conditions, his presentation of the case before the foreign Court, on
the same perception, cannot by any stretch of imagination be termed as
fraudulent or misleading. In any case, the filing of the petition for divorce
on 16.8.2010, by the plaintiff, was not the product of any consent. Therefore,
the defendant, who was consistent in his understanding and communication, of
the nature of the plaintiff's visit to India along with the child, did not
either mislead or play fraud upon the foreign Court. Even in cases where a
finding of fact is rendered on the basis of evidence, but such fact is actually
not true, the case will not fall under the category of fraud. In T.Sundaram
Pillai vs. Kandasamy Pillai {AIR 1941 Mad. 387}, King, J., held that
"merely because a plaintiff obtains a decree upon evidence which is
believed by the Court, but which in fact is not true, he cannot be stated to
have obtained that decree by fraud. The learned Judge further pointed out that
there must be fraud connected with the procedure in the suit itself to bring
the matter within Clause (e) of Section 13".
69. In
order to establish that by consent of parties, she shifted to India
permanently, the plaintiff has brought out the following facts in her pleadings
viz.:-
(i) The
sale of their house in Atlanta.
(ii) The
sale of the plaintiff's Car in Atlanta.
(iii) The
farewell to the child in her school in Atlanta.
(iv) The
vetting of 1-131 Form by defendant.
(v) The
defendant vetting the lease agreement for the house at Chennai.
(vi) The
contribution of the defendant's parents for the furniture.
(vii) The
purchase of the tickets by the defendant for the plaintiff as well as the
child.
(viii)
The enrolment of the child in a school at Chennai.
(ix)
Withdrawal of the child's medical records from the U.S. Hospital and the
shipment of child's personal facts to India.
70.
Though the plaintiff has filed a bill of sale as plaint document No.8 signed by
the defendant, in evidence of the sale of the car with the consent of the
defendant, all other things pleaded in the preceding paragraph, do not appear
to have had the consent of the defendant. This is seen from the following:-
(i) The
letter dated 8.6.2010 addressed to the Shreiner Academy for cancellation of the
admission of the child, filed as plaint document No.9, contains only the
signature of the plaintiff. Though the letter is described as emanating from
both the defendant and the plaintiff, it is signed only by the plaintiff.
(ii)
Similarly, the Authorisation to Release Health Information, filed on 6.11.2010
(plaint document No.10) shows that the said form was also signed only by the
plaintiff and not by the defendant.
(iii) The
mail dated 28.5.2010, filed as plaint document No.11, signed by the plaintiff
to the defendant, shows that the information regarding withdrawal of the child
from the school in U.S., and the registration of the child for admission to a
school in Chennai, were passed on by the plaintiff to the defendant just by way
of information.
(iv) Form
1-131 is only an application for travel document, which appears to have been
obtained with the consent of the defendant. But the necessity for obtaining the
said document was to facilitate re-entry of the plaintiff into the U.S., as seen
from the document itself, filed as plaint document No.14. Therefore, this has
nothing to do with the idea of permanent relocation.
(v) The
emails filed as plaint document No.15 relate to air ticket reservations. The
payment for the air tickets were made out of the bank account of the defendant.
But the air tickets were admittedly round trip tickets and hence they only
disclose the belief that the defendant had that the plaintiff would return to
U.S.
(vi) The
mails dated 21.6.2010, 1.7.2010, 2.7.2010, filed as plaint document No.16, by
which the plaintiff informed the defendant of the factum of taking an apartment
on rent, are only one sided communications. These communications do not
disclose a consensus ad idem between the parties on the issue of permanent
relocation.
(vii) The
only mails that emanated from the defendant, are dated 18.5.2010, 26.7.2010 and
12.8.2010. They are filed as defendant's document Nos.12 and 16 and plaint
document No.20 respectively. They show (a) the conditions subject to which the
defendant agreed to send the child to India and (b) the defendant's belief that
the plaintiff and the child would come back to U.S., on 23.11.2010, the date
for which the return journey ticket had been reserved.
71.
Therefore, even the documents filed before me by the plaintiff disclose (i)
that what was agreed was only a temporary relocation in the first instance (ii)
that it was conditional (iii) that within 20 days of her arrival in India, the
plaintiff committed a breach of those conditions and moved the foreign court
for divorce. If on the basis of the documents filed on both sides, I myself
cannot come to a conclusion that the defendant consented unconditionally to the
plaintiff's permanent relocation in India, it is impossible for me to think
that the defendant misled the Foreign Court about this issue and obtained an
order by fraud or misrepresentation. If there had been a permanent relocation
to India, by mutual consent, in July, where was the necessity for the plaintiff
to file a petition for divorce and for primary custody of the child, on 16th
August, within about 20 days of her arrival in India ?
72.
Assuming for a moment that the defendant misrepresented to the Court of Cobb
County certain facts, it was not as though the plaintiff did not have any
opportunity to expose the falsity of his claim. The plaintiff is an Attorney
who was represented by a local Attorney in the case. The plaintiff was aware of
the claim made by the defendant about the circumstances under which she moved
to India. Therefore, she owed a duty to the Court, if there was actually a
misrepresentation on the part of the defendant, to bring it to the notice of
the very Court whose jurisdiction was actually invoked by her and not by the
defendant. The transcript of the proceedings (page-4) shows that Mr.Manely, the
Attorney engaged by the plaintiff was present at the time when the case was
called. After informing the Court of the plaintiff's decision to withdraw her
petition, the counsel left. This fact has been recorded by the learned Judge in
pages 4 and 5 of the transcript.
73. As an
Attorney by profession and as a person who had engaged a local Attorney to
represent her, the plaintiff owed a duty to the Court of Cobb County, at least
as a matter of professional commitment, to inform the Court, if there was any
attempt by the defendant to mislead the Court. The stand taken by the
defendant, which is alleged now to be a misrepresentation, was laid bare in the
Motion for Emergency Hearing filed by the defendant on 24.8.2010 itself.
Therefore, it is not as though the plaintiff was not aware of the
representations that the defendant was making before the foreign court. Despite
being aware, sufficiently in advance, of the very foundation upon which the
defendant proposed to proceed with his counter claim, the plaintiff withdrew her
appearance from Court. Therefore, the plaintiff has lost the moral authority to
contend that the Court was misled by the defendant through his
misrepresentations. Hence the attack to the judgment of the Foreign Court on
the ground that it was vitiated by fraud, cannot be sustained.
74.
Moreover, it is to be noted that the plaintiff is not attacking the foreign
judgment in entirety. The foreign judgment contains several decretal parts, one
of which is the dissolution of the marriage of the plaintiff with the
defendant. The plaintiff has conveniently chosen to accept this part of the
foreign decree and challenges only the portion relating to custody. If the
allegation of fraud is sustained, it would bring down the entire edifice built
upon a foundation made of fraud. Fraud vitiates all solemn acts and the
plaintiff cannot seek to retain one portion which is beneficial to her. Her
selective challenge makes her ground of attack extremely weak. Therefore, I do
not accept it. WELFARE CONSIDERATIONS
75.
Though the case on hand is a civil suit seeking a declaratory relief that the
foreign judgment is null and void and unenforceable, Mr.J.Sivanandaraj, learned
counsel for the plaintiff contended that since it relates to the custody of a
minor child, even if the foreign judgment is taken to be valid, it would at the
most serve as a piece of evidence or one of the factors for consideration, in a
case of this nature and that the court may still hold an enquiry into the issue
of interest and welfare of the child. According to the learned counsel for the
plaintiff, all other principles of law would yield to the principle of interest
and welfare of the child and that while performing its role of loco parentis,
the court is not fettered by other technicalities of law.
76. At the
outset, it must be remembered that I am neither dealing with a Habeas corpus
petition under Article 226 nor with a petition under the Guardians and Wards
Act, 1890. I am dealing with a suit praying for a declaration that a portion of
a foreign judgment, unpalatable to the plaintiff, is null and void. In other
words, the case on hand does not arise directly under the jurisdiction vested
either under Clause 17 of the Letters Patent or under Section 7 of the
Guardians and Wards Act,1890. Within the precincts of this heritage structure,
every Judge exercises different jurisdictions, some under the Constitution,
some on the civil appellate side, some on the ordinary original civil side and
so on and so forth. While exercising jurisdiction on one side, it is not open
to a Judge to exercise jurisdiction on another side, merely because the High
Court is one. My jurisdiction in this case arises out of some of the provisions
of the Letters Patent, the rules on the original side of this court and the
Code of Civil Procedure. Therefore, I cannot now convert this into a proceeding
under the Guardians and Wards Act. Yet, I shall consider this issue also, in
view of the fact that the ultimate decision I may render, would affect a minor
child directly. I can do so, by treating the issue of interest and welfare of
the child as part and parcel of the issue of prima facie case, while
considering the prayer for injunction.
77. The
extent to which the judgment of a foreign court is to be recognised and/or
enforced, has been the subject matter of debate not only in our courts, but
also in several jurisdictions for centuries. In England, the need to recognise
and enforce foreign decrees was originally conceived from the 17th century
onwards on the basis of the theory of comity of nations. Dicey and Morris point
out that English Judges feared that if foreign judgments were not enforced in
England, English judgments would not be enforced abroad. But, this theory was
superseded by what is called the Doctrine of Obligation, which was stated by
Parke,B., in Russell vs. Smyth {(1842) 9 M & W 810} and approved by
Blackburn, J., in Godard v. Grey {(1870) L.R. 6 Q..B. 139}. Apart from these
doctrines, Dicey in England also propounded the theory of vested rights, but
even according to the authors of Dicey and Morris, it went out of fashion after
his demise.
78. In so
far as U.S.A., is concerned, 3 theories were advanced to explain what happens
when the courts of one jurisdiction recognise or give effect to the laws of
another jurisdiction. They are (i) the Comity theory of Professor Story (ii)
the vested rights theory of Professor Beale (similar to the one propounded by
Dicey of England) and (iii) the local law theory of Professor Cook.
79. The
theory of comity is based on the premise that since a state cannot, by its
laws, directly affect or bind property out of its own territory or bind persons
not resident therein, the foreign law operates in the forum only at the will or
comity of the courts of the forum. Though Justice Cardoza has contended that
use of the word 'comity' has created problems in that it suggests a discretion
unregulated by general principles, Story wrote in his Conflict of Laws as
follows: "It would be wholly incompatible with the equality and
exclusiveness of the sovereignty of all nations that any one nation should be
at liberty to regulate either persons or things not within its own territory.
It would be equivalent to a declaration that the sovereignty over a territory
was never exclusive in any nation, but only concurrent with that of all
nations; that each could legislate for all and none for itself; and that all
might establish rules, which none were bound to obey. The absurd result of such
a state of things need not be dwelt upon"
80. The
theory of vested or acquired rights postulates that it is not the foreign law
but the rights created by the foreign law that are enforced. This theory can be
said to be similar to, though not exactly the same as, the doctrine of
obligations. But this theory came in for heavy criticism and it was pointed out
in 65 Yale L.J., 1087 (1956) that "the theory of vested rights has
been brutally murdered by Cook, Lorenzen and others, though it still flits
ghostlike through many decisions." The third theory namely the local
law theory is based on the premise that whatever effect the law of one state or
country may have in another state or country, depends upon the law of the
latter; both the right and the remedy are created by the law of the forum.
81.
Whatever be the name given to the principle adopted for recognition and
enforcement of foreign decrees, they remain mere symbols. The statement made by
Katzenbach in Conflict on an Unruly Horse: Reciprocal Claims and Tolerances in
Interstate and International Law {65 Yale L.J. 1087 (1956)} is of significance
in this regard:
"
When a court applies the rules and principles found in the statutes or judicial
decisions of another sovereign, it can be said that the court is either
enforcing foreign law, enforcing a right created by foreign law or enforcing a
right created by its own law which is as nearly homologous as possible to that
arising under the foreign law. All we are doing is using different symbols to
describe similar judicial behaviour. Unhappily, however, the symbols come
freighted with a host of philosophical assumptions, supplementing the inherent
tyranny of words" Therefore, there is no single theory which can be
said to have gained universal recognition for all time to come. As Deno Van,
L.J., said in Formosa vs. Formosa {1962 (3) All ER 419} "Rules of
Private International Law are made for men and women-not the other way
round-and a nice tidy logical perfection can never be achieved".
82.
Keeping the above theoretical forms in mind, if we come to the Indian scenario,
especially with regard to cases that arose out of child custody disputes, it is
seen that one of the earliest cases to come up before the Supreme court, was in
Sathya Vs. Teja Singh {AIR 1975 SC 105}. Quoting from Cheshire's Private International
Law, the court pointed out in that case that Private International Law is not
the same in all countries and that there is no system of Private International
Law which can claim universal recognition. The Court also quoted the celebrated
writer Graveson to the effect that "almost every country in the modern
world has not only its own system of Municipal law, differing materially from
those of its neighbours, but also its own system of conflict of laws".
After indicating that we (Indian Courts) cannot adopt mechanically, the rules
of Private International Law evolved by other countries, the Supreme Court
observed that these principles vary greatly and are moulded by the distinctive
social, political and economic conditions obtaining in these countries.
83.
Speaking of the peculiar problems of conflict of laws arising in the United
States of America, due to the co-existence of 50 States, each with its own
autonomous legal system, the Supreme Court pointed out in Sathya, that under
Article IV, Section 1 of the American Constitution, full faith and credit is
required to be given in each State, to the public Acts, Records and Judicial
Proceedings in every other State. Consequently, the validity of a divorce
decree granted by a State Court in the United States, is tested in the other
States as if it were a decree granted by a foreign Court. Though the acceptance
of the validity of a decree granted by one Court, by other Courts, is on the
principle of "comity", the Supreme Court pointed out, relying
upon the American author Livermore that comity is a matter for sovereigns and
not for Judges and that in deciding whether a decree will be recognised in
another jurisdiction, public policy and good morals have to be considered. No
country is bound by comity to give effect in its Courts to the laws of another
country which are repugnant to its own laws and public policy. To come to the
said conclusion, the Supreme Court relied upon the fact that American Courts
themselves found it abhorring to accept collusive mail-order divorces granted
by Mexican Courts to all and sundry, of whatsoever nationality and domicile. A
foreign decree of divorce is denied recognition in American Courts (i) if the
judgment is without jurisdiction or (ii) if it is procured by fraud or (iii) if
treating it as valid would offend public policy. It appears from this decision
that the shift from the "theory of comity of nations" to the
"doctrine of obligations" that took place in England even in
nineteenth century, was not noted in this or any of the subsequent cases.
84. After
quoting Cardozo, J., "we are not so provincial as to say that every
solution of a problem is wrong, because we deal with it otherwise at
home", the Supreme Court held that "we shall not brush aside
foreign judicial processes unless (not) doing so would violate some fundamental
principles of justice, some prevalent conception of good morals, some deep
rooted tradition of the common weal".
85. After
Sathya, came Surinder Kaur Sandhu vs. Bax Singh Sandhu {1984 (3) SCC 698}. That
case concerned a Sikh couple married in India and shifted to England, where a
child was born. The husband was convicted of an offence and was released on
probation. After the expiry of the probation, the husband removed the child and
brought it to India. The wife obtained an order for the custody of the child,
from a Court in England and came to India and approached the High Court for
securing the custody of the child. The High Court dismissed the petition,
forcing her to file an appeal before the Supreme Court. While allowing the
appeal, the Supreme Court pointed out that the modern theory of Conflict of
Laws recognises and, in any event, prefers the jurisdiction of the State 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 lodged. The court pointed out that to allow the
assumption of jurisdiction by another State in such circumstances will only
result in encouraging forum-shopping. The court went on to add that in matters
relating to matrimony and custody, the law of that place must govern which has
the closest concern for the well-being of the spouses and the welfare of the
offsprings of marriage.
86. In
the next decision, Mrs.Elizabeth Dinshaw vs. Arvind M.Dinshaw {AIR
1987 SC 3}, the issue of custody of a minor child, born of an Indian father and
an American mother, came up for consideration. The child was an American
citizen and the marriage between the spouses was dissolved by a decree granted
by a competent Court in U.S.A. The Court also granted permanent custody to the
mother and visitation rights to the father. The father brought the child to
India without intimating the mother as well as the Court. When the mother moved
the Michigan Circuit Court, a warrant of arrest was issued against the father
for unlawfully taking the minor out of the country. Unable to trace the child
in her matrimonial home at Pune, the mother moved a Habeas Corpus Petition.
While allowing the said petition, the Supreme Court pointed out that whenever a
question arises before a Court pertaining to the custody of a minor, the matter
is to be decided, not on considerations of the legal rights on the parties, but
on the sole and predominant criterion of what would best serve the interest and
welfare of the minor. On the ground that the child is an American citizen and
that excepting for a few months after being brought to India by a process of
illegal abduction by the father, he had spent the rest of his life in U.S.A.,
the Court allowed the petition. The Court also noted that the child had not
taken root in this country and that he is still accustomed and acclimatised to
the conditions and environment obtaining in the place of his origin in U.S.A.
Relying upon the decision of Willmer, LJ., in Re.H (infants) 1966 1 All ER 886,
the Supreme Court pointed out that it is the duty of all Courts in all
countries to do all they can to ensure that the wrong doer (the person who
removes a child unauthorisedly from one country to another) does not gain any
advantage by his wrong doing.
87.
Interestingly, the Supreme Court took note of the fact (in Elizabeth Dinshaw)
that on account of violation of the order of the Circuit Court, the Court had
cancelled the visitation rights granted to the father and had also held him
guilty of contempt of Court. Therefore, the Supreme Court directed the father
to tender unconditional apology to the same Court, and recorded a hope that the
Circuit Court (in U.S.) would take a lenient view, in the best interest of the
minor which required the avoidance of complete alienation of the child from the
father. The Supreme Court also expressed the hope that the mother of the child
would render all assistance to the father, for the withdrawal of the warrants
of arrest from the competent Court.
88. In
Dhanwanti Joshi vs. Madhav Unde {1998 (1) SCC 112}, the
question that fell for consideration was as to whether the removal of the child
from U.S.A., to India, contrary to an order of the U.S. Court, disqualified the
mother from having the custody of the child. While dealing with the same, the
Supreme Court first took note of the decision of the Privy Council in McKee vs.
McKee {1951 1 All ER 942}, where Lord Simonds held that in proceedings relating
to custody, the welfare and happiness of the infant was of paramount
consideration and that the order of a foreign Court in U.S.A., though to be
given due weight, was only one of the facts which must be taken into
consideration. The Privy Council also pointed out that the order of the foreign
Court would yield to the welfare of the child and that comity of Courts
demanded not its enforcement, but its grave consideration.
89. After
considering the decision of the Privy Council in McKee vs. McKee, the Supreme Court
(in Dhanwanti Joshi) also took note of the apparent contradiction between the
view of the Privy Council in McKee and the view taken in Re.H (infants), which
was relied upon by the Supreme Court in Mrs.Elizabeth Dinshaw. But the Supreme
Court pointed out that this conflict between McKee and H. (infants), was
resolved by the Court of Appeal in Re.L (minors) {1974 (1) All ER 913}, by
ultimately holding that McKee was still the correct law and that the latter
decisions revolved around the limited question whether the Court in the country
to which the child was removed, could conduct (a) a summary inquiry or (b) an
elaborate inquiry on the question of custody. After elaborating on the question
as to when summary jurisdiction is to be invoked and when an elaborate inquiry
is to be conducted, the Supreme Court also took note of the decision in
Elizabeth Dinshaw and held that the general principles laid down in McKee and
the distinction between summary and elaborate inquiries as stated in Re.L.
(infants) hold good in our country also.
90.
Referring to the Hague Convention on Civil Aspects of International Child
Abduction 1980, to which India is not a signatory, the Court pointed out that
under Article 12 of the Convention, the child is required to be sent back, even
if a period of more than one year had lapsed from the date of the removal to
the date of commencement of the proceedings, unless it is demonstrated that the
child is settled in its new environment. Article 16 of the Convention
prohibited the Court of the country to which the child is removed, from going
into the merits of the welfare of the child. But Article 12 is made subject to
Article 13 and hence, the request for return of the child could be refused, if
it would expose the child to physical or psychological harm or otherwise place
the child in an intolerable position. In so far as non Convention countries are
concerned, the law to be followed was summarised by the Supreme Court in para
33 of its decision in Dhanwanti Joshi, to the following effect:- "33.
So far as non-Convention countries are concerned, or where the removal related
to a period before adopting the Convention, the law is that the Court in the
country to which the child is removed will consider the question on merits
bearing the welfare of the child as of paramount importance and consider the
order of the foreign Court as only a factor to be taken into consideration as
stated in McKee vs. McKee unless the Court thinks it fit to exercise summary
jurisdiction in the interests of the child and its prompt return is for its
welfare, as explained in L. Re. As recently as 1996-1997, it has been held in P
(A minor) (Child Abduction : Non-Convention Country), Re : by Ward, L.J. (1996
Current Law Year Book, pp. 165-166) that in deciding whether to order the
return of a child who has been abducted from his or her country of habitual
residence which was not a party to the
Hague Convention, 1980 the Courts'
overriding consideration must be the child's welfare. There is no need for the
Judge to attempt to apply the provisions of Article 13 of the Convention by
ordering the child's return unless a grave risk of harm was established. See
also A (A minor) (Abduction: Non-Convention Country) (Re, The Times 3-7-97 by
Ward, L.J. (CA) (quoted in Current Law, August 1997, p.13). This answers the
contention relating to removal of the child from USA."
91. In
Sarita Sharma vs. Sushil Sharma {2000 (3) SCC 14}, the Court
was concerned with a case where in violation of an interim order of the
District Court of Tarrant County, Texas, U.S.A., the mother of the child came
back to India, along with the children. The father sought a writ of habeas
corpus before the Delhi High Court and the same was allowed on the ground that
the mother committed a wrong in violating an order of a competent Court in
U.S.A. While allowing the appeal, the Supreme Court held that it would not be
proper to be guided entirely by the fact that the appellant Sarita had removed
the children from U.S.A., despite the order of the Court of that country and
that the decree passed by the American Court, though a relevant factor, cannot
override the considerations of welfare of the minor children.
92. In
Shilpa Aggarwal vs. Aviral Mittal {2010 (1) CTC 359}, the
father of the child, who was a permanent resident of U.K., initiated
proceedings before the High Court of Justice, Family Division, U.K., on
25.11.2008 for a direction to the mother to return the minor child to the
jurisdiction of that Court. Even before the initiation of those proceedings in
the English Court, the mother and the child had returned to India on 12.9.2008.
The father also came to India on 10th October 2008 but returned to U.K., on
14th October 2008. The English Court passed an order on 26.11.2009, directing
the mother to return the minor child to the jurisdiction of that Court.
Immediately thereafter, the father filed a writ of habeas corpus before the
Delhi High Court for the production of the child and for handing over its
custody to him. The Delhi High Court allowed the writ petition and granted 14
days time to the mother to return the child to England. On appeal by the
mother, the Supreme Court considered the previous decisions in Elizabeth
Dinshaw, Dhanwanti Joshi and Surinder Kaur Sandhu and upheld the view taken by
the High Court, which placed greater reliance upon the theory of Comity of
Nations and Comity of Judgments of the Courts of different countries. Taking
note of the fact that both parents had worked for gain in U.K., and had also
acquired permanent resident status in U.K., the Supreme Court found that the
High Court had balanced the principle of Comity of Courts and the principle of
interest and welfare of the child.
93.
V.Ravichandran (Dr)(2) vs. Union of India {2010 (1) SCC 174}, is a unique case
where the Court literally launched a woman (child) hunt by directing the
Central Bureau of Investigation to trace a small child. A few facts, which
actually resulted in the extraordinary situation, of the child being directed
to be kept under the custody of the C.B.I., authorities for 2 days, before its
production before the Court, are relevant to be noted. The couple in that case
got married at Tirupathi and left for United States of America. The child was
born in U.S. Within a year of the birth of the child, the marriage broke.
Initially, a consent order governing the issues of custody and guardianship was
passed by the New York State Supreme Court on 18.4.2005, granting joint
custody. The same was modified by an order of the Family Court of the State of
New York, on 18.6.2007, by consent of parties. But the mother of the child
brought the child to India on 28.6.2007. Thereafter, the father obtained an
order from the Family Court of the State of New York, directing the mother to
return the child to America. The Family Court also issued child abuse non
bailable warrants against the mother. Thereafter, the father filed a writ
petition before the Supreme Court of India in September 2007, for the issue of
a writ of habeas corpus. Since the mother and the child could not be traced, by
the local police of the States of U.P., Chandigarh, Tamil Nadu and Karnataka,
the Supreme Court directed the C.B.I., to trace the minor child.
94. After
the child was traced and produced before the Court, the Supreme Court
considered the matter in great detail, with reference to the law laid down by
the English Courts and the Supreme Court in the various decisions cited supra.
Thereafter, in paragraphs 29 and 30, the Court indicated the duty of the Court
while dealing with such cases, on the following lines:-
"29.
While dealing with a case of custody of a child removed by a parent from one
country to another in contravention of the orders of the Court where the
parties had set up their matrimonial home, the Court in the country to which
the child has been removed must first consider the question whether the Court
could conduct an elaborate enquiry on the question of custody or by dealing
with the matter summarily order a parent to return custody of the child to the
country from which the child was removed and all aspects relating to the
child's welfare be investigated in a Court in his own country. Should the Court
take a view that an elaborate enquiry is necessary, obviously the Court is
bound to consider the welfare and happiness of the child as the paramount
consideration and go into all relevant aspects of welfare of the child
including stability and security, loving and understanding care and guidance
and full development of the child's character, personality and talents. While
doing so, the order of a foreign Court as to his custody may be given due
weight; the weight and persuasive effect of a foreign judgment must depend on
the circumstances of each case.
30.
However, in a case where the Court decides to exercise its jurisdiction
summarily to return the child to his own country, keeping in view the
jurisdiction of the Court in the native country which has the closest concern
and the most intimate contact with the issues arising in the case, the Court
may leave the aspects relating to the welfare of the child to be investigated
by the Court in his own native country as that could be in the best interests
of the child. The indication given in McKee vs. McKee that there may be cases
in which it is proper for a Court in one jurisdiction to make an order,
directing that a child be returned to a foreign jurisdiction 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 has been
explained in L (Minors), In re and the said view has been approved by this
Court in Dhanwanti Joshi. Similar view taken by the Court of Appeal in H.
(Infants), In re has been approved by this Court in Elizabeth
Dinshaw."
95. After
pointing out the choices available to the Court, either to make a summary
inquiry or to make an elaborate inquiry, the Supreme Court considered the facts
of that case and held that the custody issue did not deserve to be gone into by
the Courts in India and that the child should be returned to U.S.A., where the
mother would be free to seek a modification of the order passed by the Court in
U.S.A. This was despite the fact that by the time the order was passed by the
Supreme Court, the child was already in India for 2 years. But while ordering
so, the Court directed the father to request the concerned authorities to drop
the warrants of arrest issued against the mother. The Court also directed the
father not to file or pursue any criminal charges for the violation of the
consent order passed in U.S.A.
96. In
the latest decision, in Ruchi Majoo vs. Sanjeev Majoo {CDJ 2011
SC 553}, three questions were taken up for consideration by the Supreme Court.
The second question was as to whether the Court in India, can decline to
exercise jurisdiction on the principle of comity of Courts. This question arose
on account of the fact that the father obtained an order for the custody of the
child from the Superior Court of California. But the mother obtained an order
from the District Court at Delhi under the Guardians and Wards Act, 1890. But
the same was over turned by the High Court of Delhi under Article 227 of the
Constitution, forcing the mother to file an appeal before the Supreme Court.
97. After
pointing out that the recognition of decrees and orders passed by foreign
Courts remains an eternal dilemma, the Court held that the validity of such
decrees are to be determined in the light of the provisions of Section 13 CPC.
The Court also pointed out that simply because a foreign Court has taken a
particular view, on any aspect concerning the welfare of the minor, it is not
enough for the Courts in this country to shut out an independent consideration
of the matter. Objectivity and not abject surrender, the Court held, should be
the mantra in such cases.
98. After
referring to the 5 previous decisions viz., (i) Sathya vs. Teja Singh (ii) Dhanwanti
Joshi vs. Madhav Unde (iii) Sarita
Sharma vs. Sushil Sharma (iv) V.Ravichandran vs. Union of India
and (v)Shilpa Aggarwal vs. Aviral Mittal, the Supreme Court drew
a distinction (in Ruchi Majoo) between cases which arose out of habeas corpus
proceedings and cases which arose out of proceedings under the Guardians and
Wards Act. It was held by the Court that while the writ Court's jurisdiction
arises in cases where the alleged detenue is within its territorial
jurisdiction, the jurisdiction of the Court under the Guardians and Wards Act,
is determined by the place where the minor ordinarily resides. Therefore, the
Court held that unless the Court in India before which a proceeding is brought,
had the jurisdiction to entertain it, it cannot even order the return of the
child to the country from where the child was removed.
99. After
pointing out the above distinction, the Supreme Court gave 4 reasons for
reversing the decision of the Delhi High Court, by which the mother was
directed to return the child to U.S.A. One of the reasons is as follows:-
"What
needs to be examined is whether the High Court was right in relying upon the
principle of comity of Courts and dismissing the application. Our answer is in
the negative. The reasons are not far to seek. The first and foremost of them
being that 'comity of Courts' principle ensures that foreign judgments and
orders are unconditionally conclusive of the matter in controversy. This is all
the more so where the Courts in this country deal with matters concerning the
interest and welfare of minors including their custody. Interest and welfare of
the minor being paramount, a competent Court in this country is entitled and
indeed duty bound to examine the matter independently, taking the foreign
judgment, if any, only as an input for its final adjudication. Decisions of
this Court in Dhanwanti Joshi and Sarita Sharma's cases (supra) clearly support
that proposition."
100.
Despite holding as above, the Supreme Court did not (in Ruchi Majoo) over turn
the law laid down in the previous decisions to the effect (i) that by balancing
delicately, the principle of comity of nations and the principle of interest
and welfare of the child, the Court must first decide, whether the case
warrants a summary inquiry or an elaborate inquiry and (ii) that the Court
could also apply the test of closest contact as evolved in Surinder Kaur
Sandhu. Apart from reiterating the same principles, the Court also made it clear
that the Court exercising powers under the Guardians and Wards Act, can choose
to hold a summary inquiry and pass appropriate orders, provided it is otherwise
competent to entertain the petition.
101. In
Ruchi Majoo, the Supreme Court found (i) that the minor was not removed from
the jurisdiction of the American Court in contravention of any orders passed by
any American Court, but the father approached the American Court only after the
child came to India (ii) that the child was already living in India and
pursuing his studies for 3 years in a reputed school in India and (iii) that
the child which was aged 11 years, did not evince any interest in returning to
U.S., when interviewed. Therefore, on question No.2, the Supreme Court held
that the order of the Delhi High Court for the repatriation of the minor to the
United States, on the principle of comity of Courts, did not appear to be an
acceptable option, worthy of being exercised at that stage.
102.
After referring to all the 7 decisions of the Apex Court starting from Surinder
Kaur Sandhu, a Division Bench of this Court, in its decision rendered on
11.4.2011, in HCP No.2367 of 2010, held that in that case, it was not proper to
exercise a summary jurisdiction to return the child to USA, in view of the fact
that the child in question was a female child just aged 3 years and also in
view of the fact that the Home Study conducted by the U.S. Consulate in
Chennai, found the child to be in a good environment.
103.
Therefore, in view of the fact that a note of dissent was not recorded in Ruchi
Majoo, on the fundamental principles laid down in Dhanwanti Joshi, which was
also approved by a 3 Member Bench of the Apex Court in V.Ravichandran, the
following principles emerge:-
(i) This
Court should first consider whether an elaborate inquiry on the question of
custody is permissible or whether the Court should summarily order the return
of the child to the country from where it was removed, leaving it to the Court
in that country to investigate all aspects relating to the child's welfare.
(ii) The
question as to whether this Court could summarily order the return of the child
to the country from where it was removed, depends upon several factors. One of
those factors would be as to whether a competent Court in that other country,
was already seized of the dispute between the parties, when the child was
removed from that country and whether any order had already been passed by a
Court of competent jurisdiction in that other country. If one of the parties to
the dispute had deliberately removed himself/herself along with the child, out
of the territorial jurisdiction of the foreign Court before which a dispute was
pending, in order to escape the consequences of an order that had already been
passed or was likely to be lawfully passed by that Court of competent
jurisdiction, this Court would normally resort to a summary inquiry, since no
Court would extend a helping hand to a person, who tries to escape from the
jurisdiction of a competent Court. (iii) Again the question whether a person
removed himself/herself, out of the jurisdiction of the foreign Court,
deliberately and with a view to escape the consequences of any order that may
be passed, is a question that cannot be considered in isolation from the social
context. The Court cannot lose sight of the fact that the law and courts, in a
few countries (mostly perceived as developed countries) exhibit a cold gender
neutrality. Immigrant women from countries like ours, find it very hard to deal
with such cold neutrality, especially in an alien soil. In a country like ours,
where dependence on someone, right from the time of birth, has been the
hallmark of the life of a woman, they do not learn so easily to stand alone
independently and fight a legal battle and also eke out a livelihood especially
in a foreign land. In their home land, they are better placed to fight a legal
battle, for two reasons viz., (i) that at least for some time, they gather the
support of their family members and (ii) that the system here is perceived, at
least by men, (whether true or not), to be sympathetic rather than maintaining
crude neutrality. Even the Convention on the Elimination of All Forms of
Discrimination against Women, ratified by India, recognises under Article 4.1
that the adoption by States Parties, of temporary special measures aimed at
accelerating de facto equality between men and women shall not be considered
discrimination as defined in the Convention. However, those special measures
are required to be discontinued, when the objectives of equality of opportunity
and treatment have been achieved. Therefore, there is at least a perception,
whether it is real or not, that the home turf is safer. But in a foreign
country, where litigation is prohibitively costly, it is impossible for an Indian
woman to sustain herself and also fight a litigation. Moreover, the normal
tendency on the part of an immigrant woman, is to return to India, once the
marriage is broken. If she has a child by the time the marriage is broken, she
would be left with the hobson's choice of either coming back to India with the
child or to leave the child there and come back alone. The choice of continuing
her stay in an alien land, just for the purpose of fighting a child custody
case there, appears to be the most horrendous one. This is why the Supreme
Court held in Surinder Kaur that it is the duty of the Court to protect the
wife against the burden of litigating in an inconvenient forum.
104.
Therefore, in my considered view, apart from the 2 tests already laid down by
courts, viz., (i) the test for determining whether to hold a summary inquiry or
an elaborate inquiry and (ii) the test of closest contact with the child,
evolved by the Supreme Court in the various decisions cited supra, the Court
should also apply one more test. It is that the Court should look into the
status of the woman involved in the case. If the woman involved in the case is
incapable of sustaining herself independently in a foreign country and also
fighting a child custody case, the Court should be slow to order the return of
the child summarily.
105.
There is one strong reason for my above conclusion. The various decisions of
the Apex Court cited supra, rested their conclusions mostly upon (i)
International Conventions and (ii) the Principles of Private International Law
as applicable to the Indian context. Every International Convention that
touches upon the rights and welfare of the child, automatically touches upon
the welfare of its mother also. Article 4 of the Declaration of the Rights of the
Child, adopted by the United Nation General Assembly in 1959, not only states
that the child shall be entitled to grow and develop in health, but also states
that special care and protection should be provided both to him and to his
mother. Article 6 states that a child of tender years shall not, save in
exceptional circumstances, be separated from his mother.
106.
Following the Declaration of the Rights of the Child of 1959, the General
Assembly also adopted the Convention on the Rights of the Child in 1989, which
entered into force in 1990. Article 9.1 of the Convention stipulated that
States Parties shall ensure that a child is not separated from his or her
parents against their will, except under certain circumstances. Article 10.2
contains a significant mandate which reads as follows:- "A child whose
parents reside in different States shall have the right to maintain on a
regular basis, save in exceptional circumstances, personal relations and direct
contacts with both parents. Towards that end and in accordance with the
obligation of States Parties under Article 9, paragraph 1, States Parties shall
respect the right of the child and his or her parents to leave any country,
including their own and to enter their own country. The right to leave any country
shall be subject only to such restrictions as are prescribed by law and which
are necessary to protect the national security, public order, public health or
morals or the rights and freedoms of others and are consistent with the other
rights recognised in the present Convention."
107.
After recognising, under Article 10.2, the right of the child and his or her
parents to leave any country, including their own and to enter their own
country, the Convention on the Rights of the Child also stipulated under
Article 11 (i) that the States Parties shall take measures to combat the
illicit transfer and non-return of children abroad and (ii) that to this end,
States Parties shall promote the conclusion of bilateral or multilateral
agreements or accession to existing agreements.
108. With
the above prelude if we take a critical look at all the 7 cases decided by the
Apex court, the picture that emerges is quite interesting:-
Case
reference
Nature of
the proceedings
Special
Features
Ultimate
result
Surinder
Kaur's case 1984(3)SCC 698
Writ
petition
1.
original petition filed by mother of the minor child under sec.97 Cr.P.C., was
dismissed by Magistrate.
2. She
went to England, obtained an order by which the child became the ward of the
court in England
3. Thereafter
she came back to India and filed a writ petition. It was dismissed by High
Court and she went to Supreme court
Held:
(i)that the spouses had made England their home and the boy was born there, and
so the father cannot deprive English court's jurisdiction and (ii) that the
matrimonial home of spouses was in England and hence there are sufficient ties
or contacts with that State, which make it reasonable for English court to
assume jurisdiction.
Note:
Court also held that it is their duty to protect the wife against the burden of
litigating in an inconvenient forum
Therefore,
father was directed to hand over custody to mother
Elizabeth
Dinshaw's case AIR 1987 SC 3
Writ of
Habeas corpus
1.
Marriage in U.S. Mother was American, father Indian. Child born in U.S.
2. A
court order dissolving the marriage and dealing with the issue of custody of
child, was passed by U.S., court
3.
Thereafter the father abducted the child to India and the mother filed habeas
corpus
Held :
(i) child is an American citizen (ii) child has not taken root in this country
(iii) His welfare demands handing over custody to mother (iv) Child's presence
in India is an illegal act which cannot be taken advantage of by father.
Therefore,
child was directed to be handed over to mother, to be taken to U.S
Dhanwanti
Joshi's case 1998 (1) SCC 112
Petition
under Guardians and Wards Act before Family court
1.
Marriage took place in U.S., on 11-6-1982, child born in U.S. On 15-3-1983 and
the couple separated on 20-4-1983
2. U.S.,
court granted divorce on 23-9-1983, but the mother and the child came to India
on 20-2-1984
3. Father
then obtained visitation rights on 11-4-1984, temporary custody on 30-4-1984
and permanent custody on 28-4-1986
4. Father
came to India and filed Habeas corpus, which was dismissed on 15-4-1986, only
after which the U.S., court granted permanent custody to him
5. Mother
obtained a permanent custody order exparte from Family court. Thereafter father
filed another before the Family court and obtained an order. The appeal filed
by mother was dismissed for default by Bombay High court and she approached the
Apex court
Permanent
custody granted to mother and visitation rights to father. He was refused
temporary custody as it might result in the child not being returned to India
Sarita
Sharma's case 2000 (3) SCC 14
Habeas
corpus
1.
Proceedings were first initiated in U.S and interim orders for the care and
custody of the children passed from time to time.
2. While
exercising visitation rights, mother brought the children to India
3. Father
obtained divorce, permanent custody of children and also arrest warrants
4.
Thereafter, he came to Delhi and filed a habeas corpus. High court allowed the
writ and Supreme court reversed it
Held: (i)
Decree of U.S., court is a relevant factor but it cannot override the
consideration of welfare of children
(ii) The
interest and welfare of the children require a full and thorough inquiry
(iii) the
father is an alcoholic
Shilpa
Aggarwal's case 2010 (1) CTC 359
Habeas
corpus
1.
Matrimonial home set up in Scotland and then moved to England. Child born in
U.K., and Holds British passport
2. Mother
and child came to India in September 2008 with return tickets, but they did not
return
3. So the
father obtained an order for the return of the child to the jurisdiction of
High Court of Justice, Family Division, U.K., in November 2008
4.
Thereafter, the father initiated habeas corpus before Delhi High Court
Held:(i)
that the high court was right in balancing the issue of comity of courts and
the issue of interest and welfare of the child by directing the child to be
returned to U.K.
(ii)
having regard to the nationality of the child and parents' employment in U.K.,
the English court had the most intimate contact with the issue in question.
Therefore,
the Court directed the mother to return the child to U.K., with a further
direction to the father to meet the expenses for their travel and stay for a
month to enable them to contest the case in U.K
Ravichandran
2010(1)SCC 174
Habeas
Corpus
1.
Married at Tirupathi, child born in U.S.
2.Mother
filed divorce petition in US Court and a consent order passed governing the
issues of custody and guardianship. Marriage was also dissolved later.
3.
Consent order for custody was later modified by Family Court of New York on
18-6-2007
4. Mother
came to India thereafter, breaking those orders, forcing the father to obtain
non bailable warrants in U.S., and then filing habeas corpus in Supreme court
Keeping
in view the fact (i) that the child is an American (ii) that the parties had
already obtained consent orders for custody from the U.S. court (iii) that the
child had not developed roots in this country and (iv) that there was nothing
on record to suggest that the return of the child was harmful to it, the court
ordered the mother to return the child to U.S.
However,
the court also ordered (i) that the travel expenses and arrangements for stay
of the mother be taken care of by father (ii) that the father shall arrange to
have the warrants of arrest dropped and (iii) that he shall not pursue the
criminal complaints against her in U.S.
Ruchi
Majoo's case
Proceedings
under Guardians and Wards Act
1. Child
was a citizen of America.
2. Father
obtained a custody order from a U.S., court and a red corner notice was issued
on allegations of abduction against the mother.
3. Mother
obtained an order for interim custody from the District Court, Delhi in a
petition under the Guardians Act, but the same was set aside by the High Court
in a revision under Article 227. Mother filed an appeal to Supreme court.
Taking
into account the wishes of the child and the fact that the child is settled in
India for 3 years, the supreme court held, without overruling the earlier
decisions, that the foreign judgment is only one of the several inputs and that
the interest and welfare of the child are of paramount consideration.
Therefore, the court allowed the District court to proceed with the hearing of
the main petition under the Guardians Act
109. A
critical analysis of all the above 7 decisions of the Supreme Court would show
the following:
(i) In
the first two cases viz., Surinder Kaur and Elizabeth Dinshaw, the fathers
abducted the children to India and the Supreme Court granted reliefs to the
mothers permitting them to take the children to England and U.S., respectively,
invoking the principal of Judicial Comity and applying the test of most
intimate contact.
(ii) In
the next two cases viz., Dhanwanti Joshi and Sarita Sharma, the mothers brought
the children to India and the fathers approached the Courts for relief. But the
Supreme Court invoked the test of interest and welfare of the children and
allowed the mothers to retain the children in India.
(iii) In
Shilpa Agarwal and V.Ravichandran, the mothers brought the children to India,
but the Supreme Court directed them to return the children to the countries
from where the children were removed, invoking the principles of Judicial
Comity and the test of intimate contact.
(iv) In
the last case viz., Ruchi Majoo, the mother brought the child to India and the
father was denied relief by the Supreme Court, holding that the interest and
welfare of the child would override other considerations.
110. What
is important to note from the above discussion, is the fact that there was
unanimity of opinion in all the above 7 decisions, about the principles of law
to be followed in such cases. Yet, the application of those principles produced
different results, unlike in laboratory experiments, since law is all about
humanities and not a science. Of all the above decisions, the decision in
V.Ravichandran, was by a 3 Member Bench and the others are by 2 Member Benches.
111.
Therefore, in the light of the principles laid down in all the above 7
decisions, let me get into the facts of the case, to find out, where lies the
interest and welfare of the child, assuming that it still exists, despite all
these disputes.
112. At
the outset, it is noted from the pleadings that the plaintiff has not pleaded
anywhere that the defendant is disqualified from having the custody of the
child. On the contrary, many of the mails exchanged between the parties reflect
that the respondent has been a very affectionate and caring father for the
child. Though the plaintiff has today projected the defendant as a very bad
husband, she had praised him at the earliest point of time when the parting
shot was fired by her by a mail dated 22.4.2010. It may be recalled that the
plaintiff and the defendant got married on 26.9.2005. The first signs of cracks
developing in the relationship, was reflected in the mail dated 22.4.2010 sent
by the plaintiff to the defendant. This mail is filed as defendant's document
No.10. The relevant portions of this mail, are as follows:- 'I want to tell you
that these 4 years that I have lived with you has been very meaningful and what
we have shared and given into this relationship is something only we both know.
You have been a very good husband, a good father and a good head to our family
which you have run in the last 4 years. I hope you would also acknowledge that
I have never failed in my responsibilities in running this family and ensuring
relationships are strongly held. I thank you for every happy moment you have
brought into my life in these 4 years. Having said that, in the recent past 5
to 6 months, I was just realizing that I was growing out of this relationship
and growing out of you .. I initially thought this is a temporary feeling and
that I could curb without realizing that this feeling was only getting
stronger.
The most
important aspect I would like to add here is you have been a great dad to Rhea
and you might not have her in your daily life. It is painful now but it will be
the reality that has to be faced. But I more than accept the fact that your
right over Rhea is equal to mine in every sense and hence you will have all the
freedom to spend enough and more time with your daughter. From my end I will
ensure Rhea always knows how much you love her and she will come with open arms
and receive you at any stage of her life and that's a promise. You have the
right to blast and curse me and I will keep quite and take it as I probably
have no response. I wanted to send you this email so that you have the time
after you finish work today to read and digest this heavy truth. We will speak
when you are here tomorrow in more detail just that I wont have any answers to
most of your questions.
I do have
one request I plead that you please make
this as amicable as possible because I want to take back those 4 years of good
memories as against the few moments of bitterness. I would want to part ways
with some energy to start this new life ahead. Please do this for me and for
Rhea. And the only word I would like to conclude this mail with is I AM SORRY.'
113. The
above mail discloses that from the date of marriage viz., 26.9.2005 till the
date of issue of the mail viz., 22.4.2010, the plaintiff perceived the defendant
as a good husband and a good father. The only reason stated by her for stepping
out of the matrimony was 'that she was growing out of the relationship and
growing out of the defendant'. No one can find fault with a person, for growing
out of a relationship, especially in these days, when career and ambition tends
to overtake family ties and family values. But at the same time, it may not be
fair to invent reasons post facto, to justify one's action in walking out of
matrimony.
114.
After sending the mail dated 22.4.2010, the next step that the plaintiff took
was to file a petition for divorce on 7.5.2010. A copy of the said petition is
filed as plaintiff's document No.3 and defendant's document No.11. In that
petition, the plaintiff claimed that they were in a state of separation from
1.5.2010. Interestingly, the petition for divorce filed by the plaintiff on
7.5.2010, contains a Disclosure Statement, Summons and the Form of Order and
Rule Nisi annexed to it. They form part and parcel of the bunch of papers that
go with the divorce petition. Unfortunately, the plaintiff has not filed these
papers along with her document No.3. But the defendant has filed them. What
makes the filing of these documents crucial are (i) that in the column dealing
with 'Family Violence', the plaintiff has clearly indicated that there was no
request for relief from alleged family violence and (ii) that the Form relating
to 'Order and Rule Nisi' contains a mandate that each party is enjoined and
restrained from causing or permitting the minor children of the parties to be
removed from the jurisdiction of the Court. This Form relating to Order and
Rule Nisi, which contains a prohibition from removing the child out of the
jurisdiction of the U.S., Court, was also signed by the Judge on 7.5.2010, upon
presentation of the petition for divorce.
115.
After filing the petition on 7.5.2010, the petitioner came to India with the
child on 11/12.5.2010 and returned to U.S., on 22.5.2010. As seen from the
amended Order and Rule Nisi, the Court fixed the date for hearing of the
petition for divorce filed by the plaintiff, as 24.5.2010. But the summons was
served on the defendant only on 1.6.2010, till which point of time, the
defendant was kept in the dark, despite the fact that both of them were living
under the same roof. But after service of summons on the defendant on 1.6.2010,
the plaintiff withdrew her petition for divorce on 3.6.2010.
116. When
the plaintiff was in India during the period from 12.5.2010 to 22.5.2010, the
defendant sent a mail on 18.5.2010 to the sister and brother-in-law of the
plaintiff. A copy of this mail is filed as plaint document No.12. A perusal of
this mail shows that when the relationship got strained by the end of April
2010, the plaintiff threatened to return to India with the child. This mail
also discloses that attempts were made by the plaintiff's sister and
brother-in-law to arrive at a mediated settlement. The points that the
defendant wanted to be part of any amicable settlement, were indicated by him
in the said mail. Portions of this mail have already been extracted in a
previous paragraph. Of particular importance is paragraph 21 of the mail dated
18-5-2010. Here, the defendant states that
21. As
part of the mediation brokered, it comes at a tremendous cost to me personally
because it totally does not consider my career concerns and ambitions with me
having a very good position in the evolving areas of Smart Grid and Smart
Meters in the Energy and Power Industry. Yet, I am ready to throw everything
and do what is the right thing for my poor 3 year old daughter Rhea's sake,
whose birthday happens to be today! So, I am ready to come as a pauper,
throwing everything that I had painfully earned in this great country US only because I feel it is very cruel to subject
Rhea to a divorce and bitter custody fight. I will continue to do everything in
my capacity to ensure that Rhea has a smooth childhood. When she grows as a big
girl, I want her to know that her Dad tried EVERYTHING just for HER SAKE gave up everything he painfully assembled,
just to spare her of any ordeal.
117.
Therefore, it is clear that the defendant was ready to do any sacrifice and
travel an extra mile for the sake of the child. In contrast to the reason
indicated by the plaintiff in her mail dated 22.4.2010, for walking out of the
matrimony, the defendant's mail dated 18.5.2010 showed his anxiety to save the
marriage for the sake of the child. Therefore, the concern of the defendant for
the interest and welfare of the child, appears to be more than that of the
plaintiff.
118. In
any event, the fact that the defendant is a good father to the child, is not at
all in dispute. When the dice is evenly cast, between the plaintiff and the
defendant, on the issue of interest and welfare of the child, the only
parameter on which the case on hand could be tested, would be the principles of
Private International Law, be it on the theory of comity, on the theory of
vested rights or on the theory of local laws. If so done, it will be clear that
the child should be returned to the jurisdiction that the plaintiff herself
invoked, not once but twice, knowing well the consequences, as an Attorney at
Law.
119.
Relying upon the Report of the U.S. Consulate, dated 19.4.2011, which portrayed
the child to be appearing as healthy, happy, energetic and well cared for, it
was contended by Mr.J.Sivanandaraj, learned counsel for the plaintiff that it
would not be in the interest and welfare of the child to remove it again from
the present conditions. According to the learned counsel, from 26.7.2010 when
the child arrived in India, the child is happily settled here at Chennai for
the past one year and hence the child should not be uprooted.
120. It
is true that the staff of the U.S. Consulate made a home visit on 19.11.2010 and
found the neighbourhood in which she lived, to be clean and well kept. They
also found the apartment to be well furnished and the school to be one where
many American children were studying. But it does not mean that the alteration
of the status quo would mean disaster. The child which was born in US in May
2007, lived there for 3 years till July 2010, before she was brought to India.
The plaintiff brought the child to India upon certain conditions, reflected in
the mail dated 18.5.2010, which I have extracted elsewhere. After arriving in
India, the plaintiff filed the petition for divorce in the Superior Court of
Cobb County, Georgia, through her counsel there. She also sought for primary
custody of the child. It is only after the defendant filed a counter claim and
insisted upon the plaintiff returning to U.S., with the child that she withdrew
her petition on 18.10.2010. Despite coming to know of the fate of the counter
claim within a couple of days, the plaintiff waited till January 2011 to
initiate the present original proceedings before this Court. But the defendant
has been continuously taking steps without any let up, both before the American
Court and before this Court. Therefore, the plaintiff (i) who waited from
17.8.2010 (date of filing of her petition for divorce) till 18.10.2010 to
withdraw her petition and (ii) who delayed the initiation of the action before
this Court till January 2011, cannot now take advantage of the passage of one
year and appeal to the sympathy of this Court on the ground that the child is
settled here for the past one year.
121. As
pointed out earlier, even according to the plaintiff, the defendant had been a
good and caring father for the child. Therefore, in an ideal situation,
assuming that there is one, the child should grow up with both of them under
one roof. But it is not possible hereafter, since the marriage is already
dissolved and the plaintiff has happily accepted that portion of the final
order of the American Court. Therefore, it is unavoidable that henceforth one
of the parents would have an order of residence (custody) and the other would
have an order of contact (visitation) with the child. In the parenting schedule
that a Court would now be forced to draw, the Court has to test which of the
two parents is better suited to have a residence order.
122. To
find an answer to the above question, the plaintiff and the defendant are to be
placed in a scale, on certain parameters. If so done, the defendant may have an
edge over the plaintiff for one strong reason. As seen from the mails dated
22.4.2010 and 18.5.2010, the decision to walk out of the marriage was that of
the plaintiff. The reason to walk out, as stated by her was that she had grown
out of the marriage. Though the defendant has made an allegation that the
plaintiff has become friendly with another person by name Arun Kumar and that
the same was the reason for her walking out of the marriage, I do not wish to
get into that question. But the fact remains that in the earliest of the mails
dated 22.4.2010, the plaintiff claimed to have grown out of the marriage and
requested the defendant to accept the reality. In the later mails, she cited
her career prospects as the reason for shifting to India. But after the
declaration of war between them, she started accusing the defendant of being a
bad husband (not a bad father). Even in the temporary truce that was brought
forth through mediation, the plaintiff was not prepared to sacrifice her career
prospects. But during the period of temporary truce, the defendant expressed
his willingness to make any kind of sacrifice and come down to India, for the
sake of the child. Therefore, it is impossible to think that it will not be in
the interest and welfare of the child to return the child to U.S., especially
at the request of the father who has not only been a good father but also been
a person willing to make any sacrifices for the interest and welfare of the
child. Hence even on considerations of interest and welfare of the child, I am
unable to sustain the plea of the plaintiff for continuing the order of
injunction. BALANCE OF CONVENIENCE:
123. In
an emotional appeal, Mr.J.Sivanandaraj, learned counsel for the plaintiff,
submitted that if the interim order of injunction is vacated, two consequences
would follow, viz., (i) that the suit will become infructuous and (ii) that in
order to retain the child, the plaintiff will necessarily have to travel to
U.S., at the risk of being arrested and detained for violating the orders of
the American Court. Once the second consequence follows, the plaintiff would be
in prison in U.S., and the defendant would have the permanent custody of the
child. This will not be in the interest of the child or the mother. Therefore,
the learned counsel appealed that the interim order should not be vacated, in
view of the peculiar circumstances of the case.
124. I
have pondered over these consequences. But I have two reasons for not being
swayed by the emotional appeal. One is that this is something that the
plaintiff has invited upon herself. As pointed out by the learned counsel for
the defendant, the plaintiff is no ordinary person. She is an Attorney at Law,
specialising in Corporate Law and advising a leading firm of Lawyers. She got
into matrimony with the defendant at Atlanta, USA, set up her matrimonial home
at Georgia, gave birth to the child at Georgia and also ran the office of the
Solicitor's firm at Georgia. She herself invoked the jurisdiction of the
American Court, first in May 2010 and next in July 2010. She gave an impression
(i) to her lawyers (ii) to the defendant's lawyers and (iii) to the Court till
18.10.2010 that she would return to U.S., for attending the hearing on
18.10.2010. She went back on her assurances and allowed her petition to be
dismissed on 18.10.2010. After things started getting heated up, she approached
this Court, for the purpose of setting aside one portion of the judgment of the
American Court, even while retaining the other portion. Therefore, however much
I wish to, I cannot sympathise with the plaintiff. The reliance placed by the
counsel for the defendant in this regard, in the decision of the Supreme Court
in Gujarat Bottling Co. Ltd vs. Coca Cola Ltd {AIR
1995 SC 2372}, is well placed. It was held therein that for the grant of an
order under Order XXXIX, Rule 1, CPC, the party invoking the jurisdiction of
the Court should show that he was not at fault and that he himself was not
responsible for bringing about the state of things complained of and that he
was not unfair or inequitable in his dealings with the party against whom he
was seeking relief. Therefore, the plaintiff cannot invoke the sympathy of this
Court, on the basis of the consequences that would befall upon her, when they
were actually invited by her.
125. The
second reason is that this is not the first time that a Court is confronted
with such a situation. At least in two cases viz., (i) Shilpa Agarwal and (ii)
V.Ravichandran, the Supreme Court had to deal with similar circumstances, when
the mothers of the minor children were facing the threat of arrest, upon
landing in the foreign country, for having violated custody orders. But by
issuing certain directions, the Apex Court ensured that disastrous consequences
did not fall upon those mothers. Therefore, similar directions could be issued
even in this case. As a matter of fact, the learned counsel for the defendant
submitted that the defendant would not press the contempt petition and that he
would cooperate with the plaintiff in having the contempt petition closed
without any damage to the plaintiff, if she returned to U.S., with the child
and seek appropriate remedies before the Court whose jurisdiction she invoked.
126.
Therefore, the application O.A.No.191 of 2011 is disposed of to the following
effect:-
(i) The
prayer for interim injunction is rejected.
(ii)
Within a week of receipt of a copy of this order, the plaintiff is directed to
move the Superior Court of Cobb County which passed the final order dated
1.11.2010, praying for a variation/modification of the said order and also
praying for recalling the order passed in the contempt petition. Since the
procedure of the Superior Court of Cobb County appears to permit the filing of
petitions through counsel, even when the parties are abroad, the petitioner
shall move the said Court even from here. In the application so filed, the
plaintiff shall tender unconditional apology to the said Court for violating
its orders and shall also give an unequivocal undertaking to appear before that
Court along with the child, provided the defendant purchases tickets for the
plaintiff and the child and also takes care of the expenses for the stay of the
plaintiff and the child in U.S., till the proceedings before that Court are
concluded. (iii) The defendant shall also move the same Court, either
simultaneously or at least within a week of the plaintiff filing an application
as per the preceding clause, expressing his willingness not to press the
contempt petition against the plaintiff and also undertaking to purchase the
air tickets and take care of the expenses of the plaintiff and the child.
(iv)
Since the defendant is in U.S., he may get a date fixed by the Court, for the
hearing of the application filed by the plaintiff as per the preceding clauses.
Once a date is fixed by the Court, for the hearing of the above application,
the defendant shall purchase the tickets for the plaintiff and the child to
travel to U.S. Once they land up in U.S., the defendant shall provide for their
food and shelter and also take care of the expenses for the litigation. (v) To
enable the plaintiff to move the Superior Court of Cobb County, Georgia, as per
these directions, the defendant is directed not to take any precipitative
action. In other words, the defendant shall not remove the child forcibly from
the plaintiff's custody, by taking advantage of the rejection of the
plaintiff's prayer for interim injunction. If in compliance with the directions
issued hereunder, the plaintiff files an application before the Superior Court
of Cobb County, Georgia, within a week of receipt of a copy of this order, the
defendant shall not make any attempt to take away the child from the plaintiff
forcibly, till the date fixed by that Court for the hearing of such an
application. (vi) In the event of the plaintiff not filing any application
before the American Court, within a week of receipt of a copy of this order, it
will be open to the defendant to enforce the final order dated 1.11.2010 passed
by the American Court in a manner known to law. Similarly, if after filing a
petition as aforesaid, the plaintiff fails to appear before the American Court,
on the date fixed by that Court, despite the defendant providing the air
tickets, it will be open to the defendant to enforce the final order dated
1.11.2010 passed by the American Court. (vii) There will be no order as to
costs.
