whereby the marriage between the petitioner and respondent no.6 was dissolved by the New York State Supreme Court, again the child custody order dated April 18, 2005 was incorporated. Then the petitioner and respondent no.6 agreed for modification of the custody order and, accordingly, the Family Court of the State of New York on June 18, 2007 ordered that the parties shall share joint legal and physical custody of the minor Adithya and, in this regard, a comprehensive arrangement in respect of the custody of the child has been made. The fact that all orders concerning the custody of the minor Adithya have been passed by American courts by consent of the parties shows that the objections raised by respondent no.6h in counter affidavit about deprivation of basic rights of the child by the petitioner in the past; failure of petitioner to give medication to the child; denial of education to the minor child; deprivation of stable environment to the minor child; and child abuse are hollow and without any substance. The objection raised by the respondent no.6 in the counter affidavit that the American courts which passed the order/decree had no jurisdiction and being inconsistent to Indian laws cannot be executed in India also prima facie does not seem to have any merit since despite the fact that the respondent no.6 has been staying in India for more than two years, she has not pursued any legal proceeding for the sold custody of the minor Adithya or for declaration that the orders passed by the American courts concerning the custody of minor child Adithya are null and void and without jurisdiction. Rather it transpires from the counter affidavit that initially respondent no.6 initiated the proceedings under Guardianship and Wards Act but later on withdraw the same. The facts and circumstances noticed above leave no manner of doubt that merely because the child has been brought to India by respondent no.6, the custody issue concerning minor child Adithya does not deserve to be gone into by the courts in India and it would be in accord with principles of comity as well as on facts to return the child back to the United States of America from where he has been removed and enable the parties to establish the case before the courts in the native State of the child, i.e United States of America for modification of the existing custody orders. There is nothing on record which may even remotely suggest that it would be harmful for the child to be returned to his native country. 22. It is true that child Adithya has been in India for almost two years since he was removed by the mother-respondent no.6-country to the custody orders of the U.S.court passed by consent of the parties. It is also true that one of the factors to be kept in mind in exercise of summary jurisdiction in the interest of child is that application for custody/return of the child is made promptly and quickly after the child has been removed. This is so because any delay may result in child developing roots in the country to which he has been removed. From the counter affidavit that has been filed by respondent no.6, it is apparent that in last two years child Adithya did not have education at one place. He has moved from one school to another. He was admitted in school at Dehradun by respondent no.6 but then removed within few months. In the month of June, 2009, the child has been admitted in some school at Chennai. As a matter of fact, the minor child Adithya and respondent no.6 could not be traced and their whereabouts could not be found for more than two years since the notice was issued by this Court. The respondent no.6 and the child has been moving from one State to another. The parents of respondent no.6 have filed an affidavit before this Court denying any knowledge or awareness of the whereabouts of respondent no.6 and minor child Adithya ever since they left in September,2007. In these circumstances, there has been no occasion for the child developing roots in this country. . . . . . "
A mere perusal of it would highlight and spotlight the fact that if a consent order of the Foreign Court is in existence, it cannot so lightly be brushed aside and the Court has to see whether summarily the minor should be sent back to the Foreign Court itself, which passed the said consent order or a detailed enquiry has to be conducted, in the best interest of the welfare of the minor child and find out as to whether the minor could be allowed to remain in India itself or not.
19. In the cited case (i.e. Ravichandran's case), even though two years got elapsed ever since the minor child had come to India, nonetheless the Honourable Apex Court felt that the conduct of the mother was not satisfactory in simply taking the child from one place to another and felt that in the best interest of the child, summarily the child had to be taken to the Foreign Court, which earlier passed the order.
20. The learned Senior counsel for D2 would argue that in the present case on hand, indubitably and indisputably, unarguably and unassailably the children have been here only for a few months and it cannot be taken that they have taken roots in India and furthermore, the consent order passed by the Foreign Court appears to be in the best interest of the children and as such, the minor children have to be taken to Ontario Court, as has been highlighted supra.
21. The learned Senior counsel for the plaintiffs, would try to distinguish the said Supreme Court judgement in DR.V.RAVI CHANDRAN VS. UNION OF INDIA AND OTHERS by pointing out that in the cited case, the child of seven years old alone was involved, whereas, in this case, a boy of 15 years old and a girl of 11 years old are involved and they exercised their discretion to be in the care and custody of their maternal grandfather, namely, Sethuraman, and hence, there is a sea difference between the facts involved in the case dealt with by the Honourable Supreme Court and this case and furthermore, the Supreme Court case emerged out of HCP, whereas, this case is a civil suit and it has necessarily to be tried as per the original side Rules and it cannot be turned down, at the threshold itself on the ground of jurisdiction, etc.
22. I would like to point out that simply because, the Honourable Apex Court's judgment emerged concerning HCP, it cannot be stated that the ratio decedendi is not applicable in the facts and circumstances of this case.
23. The above excerpts extracted supra from the judgment of the Honourable Apex Court in DR.V.RAVI CHANDRAN VS. UNION OF INDIA AND OTHERS and also the perusal of the entire judgement would amply make the point clear that it is the bounden duty of the Indian Courts to consider, at the first instance itself, whether summarily the matter has to be dealt with or in depth.
24. The Honourable Apex Court also laid down various criteria to adjudge and assess a matter of this nature. No doubt, the welfare of the children should necessarily be taken into consideration 25 At this juncture, I would like to observe that the maternal grandfather, namely, Sethuraman, of the plaintiffs committed a serious error in not complying with the order of this Court. In his common counter affidavit, he clearly and categorically stated thus:
"7. It is further respectfully submitted that as per the plaint averments the cause of action for the suit arose in Chennai, where the children confided to their maternal grand parent and sought his protection and assistance. The children through the maternal grand parent therefore sought protection of this Hon'ble Court. The deponent had also sought to get the children admitted to school in Chennai. However, no school was ready to take them as they were already midway through the academic year. Further, Dhruv the first respondent is aged 14 and had to be admitted to the 10th standard. Finally admission was secured in the Packers International School at Delhi and hence the children and I relocated to Gurgaon for the limited purpose of completing the children's education. Our permanent address remains in Chennai and we have only taken temporary residence in Delhi. I respectfully submit that the move to Gurgaon was in the paramount interests of the children. Dhruv now is studying in the 10th standard and is catching up with lost time. He is at a critical stage of his education and academics and ought not to be disturbed. The girl Meghana has also well settle in her new school."
26. The above extract clearly shows that without obtaining the permission of this Court, the minors were taken out of the jurisdiction of this Court. It is not the case of Sethuraman that the minors, as on the date of filing of the suit, were with the mother in Delhi and they continued to be in Delhi, but it is his specific case that the mother D1, as on the date of filing of the suit, was living very near to his residence in Chennai itself and the children were with Sethuraman in Chennai, in the address given in the plaint. So, it is just and necessary to extract the relevant portion of the cause title of the plaint:
1)Master Dhruv.T.S.Bardwaj Minor aged 15 years, D-2, Aashiana Apartments, Venus Colony, II Cross Street, Alwarpet, Chennai-600 018.
2.Baby Meghna Bardwaj Minor aged 11 years D-2, Aashiana Apartments, Venus Colony, II Cross Street, Alwarpet, Chennai-100 018.
vs.
1.Nandini Venkatesh, New No.5, Old No.2, Bheemannamana Mudali Garden Street, Abhiramapuram, Chennai-600 018.
2.Tirupathi Srinivasa Venkatesh, No.2344, Dalebrook Drive, Oakville, Ontario L6A 6K2"
27. As such, as on the date of filing of the suit, it has been projected as though the minors were with Sethuraman in the said address in Alwarpet and that the mother of the minors i.e. D1 was living in Abhiramapuram. This Court can take judicial notice of the fact the matter that Abhiramapuram and Alwarpet are near by colonies in Chennai and in such a case, after obtaining order from this Court, Sethuraman, was not justified in taking the children out of the jurisdiction of this Court, even as per his own admission, to Delhi and get them admitted in a school there.
28. It is also a fact to be noted that in the plaint there is no prayer at all for custody of the minor children. The prayer in the plaint, as extracted supra, would clearly indicate and exemplify that on behalf of the minors, Sethuraman simply filed the suit, to see that they were not forcibly taken to Canada. Nothing has been prayed regarding the custody of the minors. The minors' custody cannot be left in the lurch. So this Court, directed Sethuraman to be in custody of the minor children as per the said order dated 03.09.2009, extracted supra. So, interim custody was given by this Court to Sethuraman.
29. It is a common or garden principle that when this Court granted custody of a minor to a particular individual, that individual is not expected to take the minor out of the jurisdiction of this Court, without the permission of this Court. But in this case, Sethuraman has simply taken the minors out of the jurisdiction of this Court and got them admitted in a school in Delhi and now he would come forward with the plea as though he is temporarily staying at Gurgaon at Delhi for the purpose of the education of the children even though his permanent residence in Chennai.
30. Per contra, the learned Senior counsel for D2 would convincingly and correctly, appropriately and appositely has pointed out that it is the contention of the D2 that even as on the date of filing of the suit, D1 was in Delhi, working in Marks Spencers and she only was having the minors with her after getting them from Canada on the strength of the order dated 10.7.2009 and she, with the help of her father, has chosen this Court's jurisdiction and has got such an order.
31. No doubt oral evidence has not been taken, as the factual matrix warrants that this matter has to be dealt with summarily. Ex facie and prima facie, the materials available on record and also the conduct of the parties should be taken into account. Only in the counter affidavit of Sethuraman, the facturm of Sethuraman having taken the minors out of the jurisdiction of this Court is found spelt out and voluntarily he has not even submitted anything before this Court, before filing the common counter affidavit.
32. The plaint is as silent as silence could be relating to the details and the circumstances under which the minors came into the custody of the paternal grandfather-Sethuraman. At this juncture, the stand of D1-the mother of the minors is worthy of being set out hereunder.
33. The learned Senior counsel appearing for D1-the mother of the minors, would submit that so far D1 is concerned, as of now, she is not filing any petition or affidavit, however she would like to submit to the jurisdiction of this Court and she is not objecting to the jurisdiction of this Court and at the appropriate stage, if circumstance warrant, she would file necessary affidavit etc.
34. It is pellucidly and palpably, patently and plainly clear that D1 wants to play a secondary role before this Court as though she is in no way connected with the proceedings initiated by her father-Sethuraman. I am constrained to point out this because it is a trite proposition of law that witnesses might lie, but the circumstances would not lie. It is the bounden duty of D1-the mother of the minors, who had chosen to obtain a consent order on 10.7.2009 from the Ontario Court, to see that the order is honoured in letter and spirit. It is not a contentious or ex-parte order. None of the precedents cited on the side of the plaintiffs would demonstrate or evince, evidence or expatiate that a party who consented for an order to be passed by a Foreign Court, could take the children from out of the Court's jurisdiction, and turned turtle and having a volte face, stated that the children are out of her control and she lost her control over them and that she could not comply with the consent order. The circumstances would clearly demonstrate and convey, express and expatiate that this is not a case in which the custody of the minor children has been snatched away by any 3rd party, by perpetrating some crime or something like that. But they would try to project as though the minors voluntarily left the custody of the mother and went into the physical custody of their maternal grandfather. If that be so, there is nothing to indicate that the mother filed any petition in Indian Court, seeking the custody of the minors from her father, so as to take them back to Ontario Court. It is therefore clear that this is a collusive suit instituted by Sethuraman and D1, and D1, instead of projecting herself as the plaintiff or the petitioner, simply through her father approached this Court and got the order and as such, this case, in my considered opinion, is a different case from other cases, so to say, it is a singularly singular case different from any other case cited on the side of the plaintiffs and in this view of the matter all the precedents cited on the side of the plaintiffs would not be applicable here in their favour and I am of the view that those decisions have been cited out of context.
35. Even for a moment, if the prima facie case, touching upon the welfare of the minor children is taken into account, I would like to point out that their biological father is in Ontario and he is frantic in trying to get back the custody of the minor children, as already the Ontario Court passed the consent order on 10.7.2009 to the effect that the minors should be brought back to Ontario and be in the care of D2, and D1 is stated to be in Chennai in the above said address. But according to D2, the mother is in Delhi, working in Marks & Spencers. The minor children are studying in Delhi, where their grandfather temporarily staying there. The above brief narration would attract the principle of Res Ipsa Loquitur and exemplify that the welfare of the minors is in doldrums. Had the minors been taken back to Ontario, as per the consent order, the minors would be by this time continuing their education without any break or discomfiture.
36. Even assuming that the mother is in Abhiramapuram and not in Delhi, a question is arising in the mind of this Court as to why the maternal grandfather-Sethuraman, for the purpose of educating the grandchildren, in his old age of 75 years, should leave Chennai and go all along to Delhi and not to any other place, and get them admitted in a school at Delhi and as such, I am not convinced by the way in which the facts and the case have have been placed and projected before me by Sethuraman. Wherefore the contention on D2's side sounds probable and the preponderance of probabilities are not in favour of the plaintiffs. Wherefore the contention on D2's side sounds probable and the preponderance of probabilities are not in favour of the plaintiffs.
37. However for the purpose of comprehensively dealing with the matter, I would like to look into the decisions cited on the side of the plaintiffs.
(i) AIR 2008 SUPREME COURT 213 MOHANAKUMARAN NAIR V. VIJAYAKUMARAN NAIR, certain excerpts from it would run thus:
"Determination in regard to maintainability of the suit must be made with reference to the date of the institution of the suit. If a cause of action arises at a later date, a fresh suit may lie but that would not mean that the suit which was not maintainable o the date of its institution, unless an exceptional case is made out therefor can be held to have been validly instituted. Application of doctrine of dominus litus is confined only to the cause of action which would fall within Ss.15 to 18, Civil P.C. It will have no application in a case where the provision of S.20 there of is sought to be invoked."
(ii) AIR 1937 MADRAS 51 RAJAH OF VIZIANAGARAM VS. SECY.OF STATE AND OTHERS, an excerpt from it would run thus:
"Clause 17 does not imp0ose as a condition the residence of the infant for the exercise of the jurisdiction thereunder. So a resident of Madras can invoke the jurisdiction of the High Court for the protection of his parental rights and it is immaterial where the children are residing so long as they are within the Presidency."
There is no quarrel over such proposition as found enunciated in the above decisions. No doubt, the minors were present here at Chennai, temporarily, on the date of filing of the suit, but it does not mean that they are entitled for the relief they prayed for, in view of my discussion supra, as the suit itself has been filed by D1-the mother of the minors, through her father-D2-Sethuraman and that too D1 is having custody of the minors after bringing them from Ontario as per the said consent order of the Ontario Court.
38. The following decisions also have been cited by the learned Senior counsel for the plaintiffs:
(i) AIR 2004 SUPREME COURT 3615-INDIAN MINERAL AND CHEMICALS CO.AND OTHERS V. DEUTSCHE BANK, certain excerpts from it would run thus:
14. On the role of UCO Bank and the validity of the presentation, the respondent has relied upon passages from Pagets Law of Banking as well as the decision of this Court in Federal Bank Ltd. v. V.M. Jog Engg. Ltd.2 to contend that there was no valid presentation by the appellant at the counters of UCO Bank, Calcutta. This has been countered by the appellant who has referred to Benjamins Sale of Goods. What the role of UCO Bank in fact was is a mixed question of law and fact. At present, since we have to determine the courts jurisdiction ex facie the plaint, we cannot proceed on the assumption that UCO Bank was not authorised to receive the documents or that the payment under the letter of credit was to be made, as far as the appellants are concerned, at D|sseldorf. Ultimately it will depend upon whether UCO Bank was acting for the respondent or the appellants. All these matters will have to be decided on evidence and cannot be decided on an application for revocation of leave under clause 12 of the Letters Patent.
(ii) AIR 2006 SUPREME COURT 1828 MAYAR (H.K) LTD., AND OTHERS V. OWNERS AND PARTIES, VESSEL M.V.FORTUNE EXPRESS AND OTHERS, certain excerpts from it would run thus:
"The plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the power under O.7, R.11. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the Court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the instance case, the averments made in the plaint, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under O7, R.11 cannot be exercised for rejection of the suit filed by the plaintiff appellants. Similarly, the Court could not have taken the aid of S.10 of the Code for stay of the suit as there is no previously instituted suit pending in a competent Court between the parties raising directly and substantially the same issues as raised in the present suit.
(iiii) AIR 1978 CALCUTTA 397 SANJAY TRADIBNG COMPANY V. M/S.DAL CHEMICAL N.V.AND OTHERS, certain excerpts from it would run thus:
"6.Even apart from the above, Mr.Shome appearing on behalf of the plaintiff has taken a very vital point. It is urged that the revocation of the grant of leave under cl.12 is a discretionary order and such discretion should not be exercised if the defendant is guilty of gross delay. Here the facts would show that the defendant has not applied at the earliest opportunity and has allowed the suit to reach the hearing stage by taking the following steps. . . .
7. The suit is now almost ripe for hearing and it would undoubtedly cause prejudice to the plaintiff if the grant of leave under cl.12 is revoked at this stage of the proceeding. The application has to be made at an earlier stage of the suit. Even no satisfactory reason has been given as to why at this stage the petitioner thought it fit to make this application.(see Madan Lal Jalan v. Madanlal AIR 1949 Cal 495). In the case of Chittaranjan Mukherjee v Barhook Mahto, AIR 1953 SC 472, the Supreme Court held that the proceedings in the suit had been allowed to reach a stage where it would result in a grave injustice if the court were to hold that the forum convenient was not the court where the suit was filed. Under such circumstances it was held that leave granted should not be revoked.
8. It is true that in the Supreme Court case the defendant took the advantage of participating i the interlocutory proceeding but in the facts and circumstances of the case before me also, I consider, that delay herein is of a serious nature and leave should not be revoked at this stage."
The aforesaid three decisions would highlight and spotlight the point that the plaint averments alone should be taken into consideration at the time of considering the fact as to whether the leave granted has to be revoked or not and in this I would like to point out, to the risk of repetition without being tautologies, that the versions of Sethuraman alone have been considered and analysed with reference to the challenge made by D2 in his affidavits.
39. The following other decisions have also been cited on the plaintiffs side:
(i) AIR 1960 MADHYA PRADESH 212 NIZAMUDDIN V. HUSENI AND OTHERS, an excerpt from it would run thus:
"A resident of Pakistan cannot be said to be an alien enemy within the meaning of S.83. It is clear from the explanation to that section that Pakistan government is not at war with India. Such a person can maintain a suit for restitution of conjugal right in an Indian Court even though he may have come to India casually."
(ii) AIR 1958 TRIPURA 25 ANIL CHANDRA SAHA VS.RAIMOHAN SAHA MATHURA MOHAN SAHA, certain excerpts from it would run thus:
"Order: The question involved in this revision is whether a citizen of Pakistan who visits India on a category B Visa can file and maintain a suit against an Indian citizen in an Indian Court in respect of transactions connected with his trade that he carries on in India.
(4) Under Section 83 of the Civil Procedure Code an alien friend can sue in any Court otherwise competent to try the suit in India, as if he is a citizen of India. Therefore, it is clear that there is no bar under the Civil law which prevents the present plaintiff-respondent from bringing this suit against the defendant-petitioner in the Court of Munsif, Udaipur for damages in respect of a breach of contract, when the cause of action arose within the jurisdiction of the Munsif at Udaipur.
(iii) AIR 1957 PATNA 256 SURESH NARAIN SINHA V. AKHAURI BALBHADRA PRASAD AND OTHERS, an excerpt from it would run thus:
"It is true that according to the principles of international law a Court has no jurisdiction to entertain a suit against a foreigner who did not permanently or temporarily reside within the jurisdiction and who had not submitted to its jurisdiction. But if the legislature confers jurisdiction upon the Court situated in a particular territory to entertain suits against foreigners, where cause of action, wholly or partly arises within its jurisdiction, if the conditions provided by the law to which it is subject exist. The rule of private international law is, therefore, in this regard subject to the rules of Municipal law.
40. The above decisions are on the point that the private International law is subject to the Rules of Municipal law. However, these three decisions should be read subject to the decision of the Honourable Apex Court in RAVICHANDRAN's case, cited supra and no more elaboration in this regard is required.
41. The following four other decisions have also been cited on the plaintiffs' side:
(i) AIR 2007 MADRAS 210 RAMAKRISHNA BALASUBRAMANIAN V. MS.PRIYA GANESAN AND OTHERS, certain excerpts from it would run thus:
"9. First contention of the counsel for the petitioner is based on the provisions contained in Section 13 C.P.C. The expression "foreign judgement" has been defined in Section 2(6) of the C.P.C.to mean the judgement of a foreign court.
10. The order relied upon by the petitioner expressly purports to be an interim order relating to interim custody until further orders. Therefore, such order cannot assume the characteristic of a foreign judgement as the order does not appear to be a final order. Moreover, such order was admittedly passed when respondent No.1 has left the territorial jurisdiction of the Court.
11. . . .
10. We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is a British citizen, having been born in England, and he holds a British passport. It cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modem 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 allow the assumption of jurisdiction by another State . . . . . . ."
12. From a reading of the aforesaid decision, it is of course apparent that the Supreme Court in the said case found that the British Court had jurisdiction to decide the question of custody of the minor child, who was a British citizen. However, it cannot be said that the Supreme Court rested its decision merely on the ground that an order of a foreign Court was to be enforced and obviously the Supreme Court considered the question of welfare of the minor."
16. Parties being admittedly Hindu, obviously, the Hindu Minority and Guardianship Act, 1956 is applicable.
Sections 6 and
7 of such Act being relevant, are extracted hereunder:-
"6. Natural guardians of a Hindu minor-The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property, are-
(a) in the case of a boy or an unmarried girl the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl the mother, and after her, the father;
(c) in the case of a married girl the husband;
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this Section-
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
7. Natural guardianship of adopted son The natural guardianship of an adopted son who is a minor passed, on adoption, to the adoptive father and after him to the adoptive mother."
18. . . .
Even where the infant is a foreign national, the Court, while giving weight to the views of the foreign Court, is bound to treat the welfare of the infant as being of the first and paramount consideration whatever orders may have been made by the Courts of any other counter"
22. A bare reading of
Section 13 of the Hindu Minority and Guardianship Act, 1956, and the various decisions noticed earlier, leaves no room for doubt that notwithstanding the so-called right of either parents to be the guardian, ultimately the welfare of the minor is of paramount consideration. The decisions which have been noted, only emphasis this aspect. The question as to what would constitute in the best interest of the minor would obviously depend upon several circumstances. As already noticed, materials which have been indicated in the petition or in the counter affidavit do not throw much light on such vital aspect. In such circumstances, we do not think it appropriate to finalise the matter relating to the incomplete materials in this Habeas Corpus petition. On the other hand, since admittedly a proceeding has been initiated at the instance of the wife before the I Addl.Family Court, Madras and the husband has entered appearance and has taken time for filing counter, we direct that the question relating to custody should be finalised by the said Court in accordance with law. It goes without saying that such Court will decide the matter on the basis of the relevant evidence to be adduced by both the parties and our present order should not be construed expressing any opinion on either way in the matter.
(ii) (2007) 3 MLJ 772 HARI BNARAYANAN VS. MEENAKSHI NARAYANAN, certain excerpts from it would run thus "8.
18. Clause (d) of
Section 13 which makes a foreign judgement unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign Court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the Court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceeding if and when they are filed by either party. 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 costs of travel residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. ..........
11. In the present case as well, the order being ex parte in nature that is to say, not being contested by the respondent, and the custody given by the Superior Court of California being temporary in nature pending further proceedings, the same cannot be treated as an order passed on merits and it appears on the face of the said order that there is a clear refusal to recognise the law of this country, viz., violation of natural justice and in such circumstances the same is not binding on the Courts in India. ....."
(iii) (1998) 1 SUPREME COURT CASES 112-DHANWANTI JOSHI VS. MADGHAV UNDE, certain excerpts from it would run thus:
"B.Guardians and Wards Act, 1980 S.17 Custody of child Removal of the child from one country to another country to custody order of the court from where child removed Where mother removing the child from USA to India while father obtaining an order from US Court to have custody of the child in USA, held, court in India has to take an independent decision on merits on the basis of an elaborate inquiry in regard to custody of the child having regard to the child's welfare which should be the factor of paramount importance and also the order of the foreign court as only one of the other factors for consideration If, however, the court in India thinks it fit to undertake a summary inquiry in the interest of the child, it may order return of the custody of the child to the country wherefrom he was removed Whether to conduct a summary inquiry or an elaborate inquiry has to be decided by the court having regard to the child's welfare This position prevails till India is not a signatory to the Hague Convention of 1980 on 'Civil Aspects of International Child Abduction' which requires return of the child wrongfully removed or retained in another contracting State to the country from where the child was removed Private International Law Child custody."
"32. . . .
Article 12 requires the child to be sent back, but if a period of more than one year has lapsed from the date of removal to the date of commencement of the proceedings before the court, the child would still be returned unless it is demonstrated that the child is now settled in its new environment.
Article 12 is subject to
Article 13 and a return could be refused if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. In England, these aspects are covered by the Child Abduction and Custody Act, 1985.
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 v. McKee7 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., Re12. As recently as 1996-1997, it has been held in P (A minor) (Child Abduction: Non-Convention Country), Re15: 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 childs welfare. There is no need for the Judge to attempt to apply the provisions of
Article 13 of the Convention by ordering the childs 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.
34. Again as stated earlier, we do not prima facie find any wilful disobedience on the part of the appellant in not producing the child before the Bombay High Court warranting shifting of custody to the father. If the child, after its three-day experience with the father was not willing to come to the court, the appellant could not be faulted.
35. For the aforesaid reasons, the contention of the respondent based on violation of the earlier orders of the US courts or of the Bombay High Court for production of the child, is rejected.
(iv) AIR 2000 SUPREME COURT 1019 SARITA SHARMA V. SUSHIL SHARMA, certain excerpts from it would run thus:
In Dhanwanti Joshi v. Madhav Unde this Court after referring to the decision of the Privy Council in McKee v. McKee4 and that of the House of Lords in J. v. C. the two decisions in which contrary view was taken, namely, H. (infants), Re and E. (infant), Re, also the decision of this Court in Elizabeth Dinshaw v. Arvand M. Dinshaw8 and also the Hague Convention of 1980 observed as under: (SCC pp. 126-27, paras 32 & 33) As of today, about 45 countries are parties to this Convention. India is not yet a signatory. Under the Convention, any child below 16 years who had been wrongfully removed or retained in another contracting State, could be returned back to the country from which the child had been removed, by application to a central authority.
* * * 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 v. McKee4 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., Re9. As recently as 1996-97, it has been held in P (A minor) (Child Abduction: Non-Convention Country), Re10: by Ward, L.J. [1996 Current Law Year Book, pp. 165-66] 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 childs welfare. There is no need for the Judge to attempt to apply the provisions of
Article 13 of the Convention by ordering the childs return unless a grave risk of harm was established. See also A (A minor) (Abduction: Non-Convention Country) [Re, The Times 3-7-1997 by Ward L.J. (CA) (quoted in Current Law, August 1997, p. 13]. This answers the contention relating to removal of the child from U.S.A.
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 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 then the 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 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.
42. All the above four decisions are not relating to the consent order passed by the Foreign Court and it is quite obvious from a mere perusal of those precedents. In this case, the parents of the minors obtained the consent order on 10.7.2009 and in such a case, those four decisions are not germane for deciding this matter. However, those four decisions are also to be read subject to the recent precedent of the Honourable Apex Court in RAVICHANDRAN, cited supra.
43. At this juncture, my mind is reminiscent and redolent of the following maxim:
"He who seeks equity must do equity and he who comes to equity must come with clean hands."
44. Here the plaintiffs seek for injunction. Injunction is an equitable remedy and as such, the aforesaid maxim would squarely be applicable. But in this case, I am fully satisfied that Sethuraman, representing the minors, has not approached this Court with clean hands and with true and full facts and this Court could see that it is nothing but a suit engineered by D1, with the help of her father, and in such a case, I do not think that this Court's interference is warranted. The suit is turned out to be an ill wind that blew no one any good. The ratio decidendi laid down by the Supreme Court in the case in RAVICHANDRAN VS. UNION OF INDIA is squarely applicable to the case in hand, and all other decisions cited on the plaintiffs' side, in view of the facts highlighted and discussed supra, are not at all applicable. Furthermore, the Supreme Court's recent decision in Ravichandran's case is dated 17.11.2009, but all other decisions are anterior to it and in the said decision, the Supreme Court itself referred to its earlier decisions and if comprehensively dealt with the matter. Accordingly, I am of the firm view that this is not a fit case at all for being entertained.
45. In view of my findings above, the question of the plaintiffs invoking Clause 12 read with Clause 17 of the Letters Patent does not arise at all and I would like to revoke the leave granted as per the order dated 03.09.2009 and the injunction and the interim custody of the minors given to Sethuraman also shall stand vacated. The Civil Suit is ordered to be taken off the file.
46. The typed set of papers would reveal that during the pendency of this case, the Foreign Court, namely, the Superior Court of Justice, Family Court Branch, Ontario, passed the order on 10.7.2009 granting custody of the minor children in favour of D2 and passed incidental directions. Each side tried to interpret the said order in their own way, but this Court is not concerned with it, as it emerged during the pendency of this case. However, this Court has considered the consent order dated 10.7.2009 passed by the Foreign Court and other circumstances, discussed supra, in passing this order.
Accordingly, all these applications are ordered and this matter is disposed of.
Msk