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8/11/2019 Hc Rules Divorce Under Hindu Act, If Married Under Hindu Act, Even if No Longer Citizens.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 164 OF 2013WITH
CAM NO. 11 OF 2014WITH
CAM NO. 241 OF 2013WITH
CAM NO. 142 OF 2014
Dr. Madhusudan alias Amod Dalvi ]Residing at 42, Mill Court, Ashford, ]Kent TN 248 DN, K, ]And also at !"#, Mar$h%ood ]Cres$ent, &aling, '(2D), K ]And also residing at C*o ]Dr. Mangesh Dalvi, !2+, #*", ]-unglee Mahara Road, /une 4!!++4 ]..A00ellant*
1ri. Res0ondent]
3s.
Dr. Ralami 'alaval5ar ]/resentl6 residing at !4+!, &*! ]76de /ar5 Residen$6, hod9under ]Road, Thane : 4++ !+ ]..Res0ondent*
1ri. /etitioner]
;.
Mr /ra9hait -auhar along %ith Mrs. Mrunalini Deshmu5h andMr. Atman Mehta i*9 7aresh Mehta and Co. Advo$ate for theA00ellantMr. ue Na$han and Rashda Aina0ure i*9 -udi$are ?a%Asso$iates Advo$ate for the Res0ondent
....
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CORAM : SMT.V..TAHILRAMANI AND SHRI. V.L.ACHLIYA! JJ.
RESERVED ON : MAY 02! 2014PRONOUNCED ON : JULY 2"! 2014
JUDGMENT: #PER SMT. V..TAHILRAMANI! J.$
! This a00eal is dire$ted against the orders dated
2.!.!" and !@[email protected]+!" 0assed 96 the amil6 Court, #andra,
Mum9ai in /etition No. AB! of 2+!". /etition No. AB! of 2+!"
%as filed 96 res0ondent %ife for divor$e and for $ustod6 of
minor daughter Mihi5a. #6 order dated 2.!.2+!" the amil6
Court as a sto0 ga0 arrangement, de$lared that the mother is
the legal guardian and $ustodian of minor girl Mihi5a. The said
order %as 0assed 9elo% nterim A00li$ation No. 2 of 2+!" E&h.
F in /etition No. AB! of 2+!". #6 order dated !@[email protected]+!" the
amil6 Court ree$ted the A00li$ation No. (+ of 2+!" E&h. !8F
0referred 96 the 0resent a00ellant for setting
aside*modifi$ation of the order dated 2.!.2+!" 0assed 96 the
amil6 Court granting interim de$laration >ua the minor girl
Mihi5a in favour of the 0etitionerB%ife and for return of 0etition
for a00ointment of uardian of the minor girl for %ant of
urisdi$tion of the amil6 Court, Mum9ai. The 0ra6ers made in
the said A00li$ation No. (+ of 2+!" are as underG
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HEaF modif6*set aside the order dated 2.!.!"
granting interim de$laration to the effe$t that the
0etitioner mother is legal guardian and $ustodian of
the minor daughter Mihi5aI
E9F ree$t the 0etition filed under =e$tion @EgF
of the amil6 Courts A$t, !84 to the effe$t that the
0etitioner 9e de$lared the sole guardian and
$ustodian of the minor daughter Mihi5a for %ant of
urisdi$tion of this 7onoura9le CourtI
E $ F 0ass su$h other order or orders as this
7onJ9le Court ma6 deem fit and 0ro0er in the fa$ts
and $ir$umstan$es of the $aseI
2 A fe% fa$ts %ould 9e ne$essar6 to a00re$iate the
$ontrovers6 involvedG
EiF t is an admitted fa$t that 9oth the a00ellant and the
res0ondent are 7indus. riginall6 9oth of them %ere ndian
$itiLens. #oth of them got married in Mum9ai on [email protected]++ as
0er 7indu 3edi$ rites. Thereafter, 9oth of them %ent to nited
Kingdom E.K.F. The a00ellantBhus9and a$>uired .K.
CitiLenshi0 in 2++ and the res0ondentB%ife a$>uired .K.
CitiLenshi0 on 24.(.2+!!. Daughter Mihi5a %as 9orn in .K. on
([email protected]+!+. =he is also a #ritish $itiLen. #oth the a00ellant
res0ondent are residing se0aratel6 sin$e =e0tem9er, 2+!!.
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Thereafter, the res0ondentB%ife $ame to ndia on !.!2.2+!2
along %ith her daughter Mihi5a %ho %as then 2 6ears and five
months old. n $oming to ndia, she filed 0etition No. AB! of
2+!" see5ing divor$e mainl6 on the ground of $ruelt6. n the
said 0etition, she also 0ra6ed that she ma6 9e de$lared under
=e$tion 2 of the 7indu Marriage A$t to 9e the sole guardian
and $ustodian of the minor $hild. /ending the 0ro$eedings, the
res0ondent had 0ra6ed that she 9e de$lared sole guardian and
$ustodian of the minor $hild Mihi5a. Thereafter, the
res0ondent moved nterim A00li$ation No.2 of 2+!" E&h. F.
The 0ra6er in nterim A00li$ation No. 2 of 2+!" %as that
0ending the 0ro$eedings in /etition No. AB! of 2+!", the
res0ondent 9e de$lared legal guardian and $ustodian of minor
daughter Mihi5a. nterim A00li$ation No. 2 of 2+!" $ame to 9e
allo%ed 96 order dated 2.!.2+!". #6 order dated !@[email protected]+!"
the amil6 Court ree$ted the A00li$ation No. (+ of 2+!" E&h.
!8F 0referred 96 the 0resent a00ellant for setting
aside*modifi$ation of the order dated 2.!.2+!" 0assed 96 the
amil6 Court granting interim de$laration >ua the minor girl
Mihi5a in favour of the 0etitionerB%ife and for return of 0etition
for a00ointment of guardian of the minor girl for %ant of
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urisdi$tion of the amil6 Court, Mum9ai. #oth these orders
have 9een $hallenged in the 0resent a00eal.
EiiF The $laim of the a00ellant is that 9oth the 0arties
have set u0 their matrimonial home in .K. The 0arties %or5ed
for gain in .K. and the minor $hild %as 9orn in .K. The
hus9and and %ife as %ell as $hild are $itiLens of .K. and
holding #ritish 0ass0orts. 7e 0ointed out that three orders
%ere 0assed 96 the Courts in .K. and the $ourt in .K. had
de$lared the $hild as %ard of the Court, hen$e, the res0ondent
has to su9mit to the orders of the Court in .K. and return the
$hild to the urisdi$tion of Courts in .K.
" #6 the first order dated .!.2+!" the .K. Court
ordered as underG
H!F The $hild M7KA DA?3 EDAT& #RT7 (th
-ul6, 2+!+F shall 9e made a %ard of this 7onJ9le Court
throughout her minorit6 or until further orderI
2F The res0ondent mother must $ause the
immediate return of M7KA DA?3 ED# (th -ul6,
2+!+F to the urisdi$tion of &ngland and 'ales and in
an6 event no later than !(th-anuar6, 2+!"I
"F The matter shall 9e further listed 9efore
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7igh Court -udge of the amil6 Division, sitting at the
Ro6al Courts of -usti$e, =trand, ?ondon 'C2A 2??, on
Thursda6, !@th -anuar6, 2+!". ETime estimate "+
minutes at Ris5, in $onsultation %ith the $ler5 of the
RulesFI
4F The res0ondent mother must attend the
hearing on !@th-anuar6, 2+!", and 9e re0resented 96
soli$itors and $ounsel if so instru$tedI
(F A 0enal noti$e shall 9e atta$hed to
0aragra0h 2 and 4 a9oveI
F There 9e 0ermission to the A00li$antJs
soli$itors to serve these 0ro$eedings outside the
urisdi$tion of &ngland and 'ales and 0ermission to
serve the Res0ondent mother 96 eBmail on
r0%alaval5ar6ahoo.$om or 96 fa$simile.
@F There 9e li9ert6 to the Res0ondent mother
to a00l6 to the Court to var6 or dis$harge an6 0art of
this rder u0on short noti$e to the Court and to the
A00li$antJs soli$itors.
8F Costs reserved.
Dated thda6 of -anuar6, 2+!".
4 The se$ond order 0assed 96 the .K. Court reads as
underG
H!. The $hild M7KA DA?3 ED# (th-ul6, 2+!+F
shall remain a %ard of this 7onoura9le Court
throughout her minorit6 or until further rderI
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2. The Res0ondent mother must $ause the
immediate return of M7KA DA?3 ED# (th-ul6 2+!+F
to the urisdi$tion of &ngland and 'alesI
". The matter shall 9e further listed 9efore
7igh Court -udge of the amil6 Division, sitting at the
Ro6al Courts of -usti$e, =trand, ?ondon 'C2A 2??, on
rida6 !ste9ruar6, 2+!". Etime estimate "+ minutes
at Ris5, in $onsultation and su9e$t to $onformation
%ith the $ler5 of the rulesFI
4. The Res0ondent mother must attend the
hearing on !ste9ruar6, 2+!", and 9e re0resented 96
soli$itors and Counsel if so instru$tedI
(. A 0enal noti$e shall 9e atta$hed to
0aragra0h 2 and 4 a9ove.
. There 9e 0ermission to the A00li$antJs
soli$itors to serve these 0ro$eedings outside the
urisdi$tion of &ngland and 'ales and 0ermission to
serve the Res0ondent mother 96 eBmail on
r0%alaval5ar6ahoo.$om or 96 fa$simile.
@. The A00li$antJs soli$itors shall serve of this
order on the ffi$e of the 7ead of nternational amil6
-usti$e.
8. Costs ReservedI
Dated this !@thDa6 of -anuar6, 2+!".
( The third order 0assed 96 the .K. Court reads as
underG
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H!F The $hild M7KA DA?3 ED# (th-ul6, 2+!+F
shall remain a %ard of this 7onoura9le Court
throughout her minorit6 or until further rderI
2F The Res0ondent mother must $ause the
immediate return of M7KA DA?3 ED# (th-ul6 2+!+F
to the urisdi$tion of &ngland and 'alesI
"F The hearing listed on !st e9ruar6 shall 9e
va$ated %ith li9ert6 to either 0art6 to a00l6 at short
noti$e for further dire$tions.
4F There 9e 0ermission to the A00li$antJs
soli$itors to serve these 0ro$eedings outside the
urisdi$tion of &ngland and 'ales and 0ermission to
serve the Res0ondent mother 96 eBmail on
r0%alaval5ar6ahoo.$om or 96 fa$simile.
(F The A00li$antJs soli$itors shall serve of this
order on the ffi$e of the 7ead of nternational amil6
-usti$e.
F Costs ReservedI
Dated this 4the9ruar6, 2+!".
Mr. -auhar, the learned $ounsel for the a00ellant
su9mitted that in vie% of the dire$tions 0assed 96 the Court in
&ngland, the $hild has to 9e returned to the urisdi$tion of the
Courts in K. 7e also 0ointed out that this 0lea is
0redominantl6 on the 0rin$i0le of $omit6 of Courts as in
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matters relating to matrimon6 and $ustod6, the la% of that
0la$e %hi$h has $losest $onne$tion %ith the %ell 9eing of the
s0ouses and the %elfare of the offs0ring of marriage must
govern the dis0ute. Mr. -auhar 0ointed out that 0arties %or5ed
for gain in K and the $hild %as 9orn in K. The $hild as %ell
as 0arents are holding #ritish 0ass0orts. n su$h situation, the
Courts in K %ill 9est serve the ends of usti$e.
@ Mr. -auhar further 0ointed out that under the
0rovisions of The uardianshi0 and 'ards A$t, !8+ an
a00li$ation %hether in res0e$t of guardianshi0 of a 0erson or
minor, is to 9e filed in the Court under %hose territorial
urisdi$tion the minor ordinaril6 resides. 7e su9mitted that as
the minor %as ordinaril6 resident of .K., the amil6 Court in
Mum9ai %ould have no urisdi$tion. 7e 0la$ed relian$e on the
de$ision of the Karnata5a 7igh Court in the $ase of A%&'(') G.
'&*)+','- ', /(& V. N*- AIR 2004 '&,''' 321!
%herein it %as held that H n order to give urisdi$tion for the
0ur0ose of a00ointment of guardian, the minor must ordinaril6
9e resident %ithin the lo$al limits of the CourtJs urisdi$tion. f
the minor does not ordinaril6 reside %ithin the territorial
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urisdi$tion of the Distri$t Court $on$erned, su$h Distri$t Court
%ill not have urisdi$tion to 0ro$eed under the A$t. n going
through the said de$ision, it is noti$ed that it is under
uardianshi0 and 'ards A$t and the referen$e therein is to
=e$tion of the uardianshi0 and 'ards A$t %hi$h la6s do%n
%hi$h Courts have urisdi$tion to entertain an a00li$ation under
the uardianshi0 and 'ards A$t. =e$tion deals %ith this
as0e$t and =e$tion la6s do%n that su$h a00li$ation shall 9e
made to the Distri$t Court having urisdi$tion in the 0la$e
%here the minor ordinaril6 resides. This de$ision $annot 9e
made a00li$a9le in the fa$ts of the 0resent $ase 9e$ause the
0etition filed 96 the res0ondentB%ife is not under the
uardianshi0 and 'ards A$t. 7er main 0etition is under the
7indu Marriage A$t and the title of the 0etition sho%s that it is
also under =e$tion 2 of the 7indu Marriage A$t %hi$h deals
%ith the $ustod6 of $hildren. 7en$e, the de$ision in the $ase of
Karim0anal Esu0raF $annot 9e said to 9e a00li$a9le to the fa$ts
of the 0resent $ase on the 0oint of territorial urisdi$tion. -ust
as in the $ase of Karim0anal Esu0raF, it %as similarl6 held under
the uardianshi0 and 'ards A$t in the $ase of P'5- M'(*,&
G'(5, V. S-*,' G'(5,2006 #$ AD #D-(*$ 467 :2006 #130$
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DLT 724! so also other de$isions relied on 96 Mr. -auhar in D&.
G-/8',,* M'&9/ M55 ', 9.AIR 1"3 B/) 242 : #1"3$
"7 B/) LR 106: 1"3 M'(. LJ 60;! A)&5 P'- S*, NCT /> D-(* ', A,&. 2013 #137$ DRJ 73; ',
M55, S?'&5+ V. M',*(' J'*, 200#100$ DRJ 36! are
under the uardianshi0 and 'ards A$t, hen$e, the6 are not
a00li$a9le to the 0resent $ase.
8. Thereafter the learned $ounsel for the a00ellant relied
u0on the de$ision of the Delhi 7igh Court in the $ase of A8*&'-
M*'- V. S'I 200 #163$ DLT 62;,in %hi$h it %as held as
underG
Hn$e the 7igh Court of -usti$e E.K.F has dire$ted
that the $hild 9e 0rodu$ed, in our $onsidered vie%,
the retention of the $hild in ndia %ould 9e unla%ful
though it ma6 not have 9een illegal at the in$e0tion.
Mr. -auhar 0ointed out that the said de$ision %as
$arried 96 the %ife to the =u0reme Court and the =u0reme
Court dismissed the 0etition. The said de$ision is rendered in
S(*-+' A
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SCC 71. 7e has 0la$ed relian$e on this de$ision as %ell as
another de$ision of the =u0reme Court in the $ase of D&. V.
R'8* C(',&', V. U,*/, /> I,*' ', /(& #2010$ 1 SCC
1;4. 'e have 0erused the said de$isions. n these de$isions,
no dou9t the 0arties %ere domi$iled outside ndia. n the $ase
of S(*-+' A
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7igh Court in Aviral Mittal Esu0raF. ne im0ortant differen$e in
the de$isions relied on and the 0resent $ase is that in the
0resent $ase first the amil6 Court here in Mum9ai has 0assed
an order in relation to $ustod6 of the $hild on 2.!.2+!" and
thereafter the hus9and on re$eiving intimation a9out this fa$t,
filed an a00li$ation 9efore the Court in K in relation to the
$hild. Thereafter, the Courts in .K. 0assed its order, the first
order of the .K. Court is dated +.+!.2+!". =ame is also not
the situation in the $ase of 3. Ravi Chandran Esu0raF. n the
$ase of Ravi Chandran, the Court in =A had 0assed the first
order in relation to $ustod6 of the $hild. The fa$ts in 3. Ravi
Chandranare that the $hild %as 9orn in =A. The 0arents %ere
domi$iled in =A. n the said $ase, the %ife had a00roa$hed
the Ne%
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%hi$h, 96 $onsent, the follo%ing order $ame to 9e 0assedG
Hrdered, the 0arties shall share oint legal and
0h6si$al $ustod6 of the minor $hild and it is further
ordered that $ommen$ing during August 2++@,
Adith6a shall reside in Allen Teas. H
7o%ever, thereafter on 28..2++@ the res0ondent
%ife 9rought the $hild to ndia. n 8.8.2++@ the 0etitioner
filed a 0etition for modifi$ation E$ustod6F and 3iolation /etition
No. E$ustod6F 9efore the amil6 Court of the =tate of Ne% uestion
%hi$h arose 9efore the =u0reme Court is refle$ted in 0aragra0h
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%hi$h reads thusGB
On the 9a$5dro0 of the aforenoti$ed fa$ts, %e have to
$onsiderBB no% sin$e the $hild has 9een 0rodu$edB
%hat should 9e the a00ro0riate order in the fa$ts and
$ir$umstan$es 5ee0ing in mind the interest of the
$hild and the orders of the Court of the $ountr6 of
%hi$h the $hild is a national.O
!+. n 3. Ravi Chandran Esu0raF, the de$ision is rendered
in the $ase of a ha9eas $or0us 0etition. This de$ision sets out
the $ourse to 9e follo%ed %hen the $hild is removed from one
$ountr6 to another in $ontravention of the orders 0assed 96
the Court in the first $ountr6.
!!. n 3. Ravi$handran Esu0raF, it %as o9served that the
first order in relation to the $ustod6 of the $hild %as 0assed 96
the = Court, hen$e, the res0ondent %as dire$ted to a$t as 0er
the $onsent order dated !8..2++@ 0assed 96 the Court in Ne%
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Chandran. The first is the interest of the $hild and se$ond is
that the Court in =A had 0assed orders in relation to $ustod6
of $hild 0rior to the mother 9ringing minor $hild to ndia. As
stated 96 us earlier, in the 0resent $ase, there is no order of
the K Court 0rior to the mother 9ringing the $hild to ndia.
7en$e, the onl6 as0e$t %hi$h %ould have to 9e ta5en into
$onsideration in the 0resent $ase in vie% of the o9servations
in the $ase of V. R'8* C(',&',, is the interest of the $hild.
!2. Mr. -auhar then relied on 0ara !8 of Aviral Mittal
Esu0raF %herein it %as o9served 96 the Delhi 7igh Court as
underG
OThe urisdi$tion of a $om0etent Court $annot 9e
ousted in this manner 96 $ontinuing to a9stain from
those 0ro$eedings and the 0rin$i0le of Comit6 of
Courts, in our $onsidered vie%, re>uires the
res0ondent and the $hild to oin 0ro$eedings in K.O
7o%ever, it is to 9e noted that these o9servations
%ere made in vie% of the fa$t that the Court in .K. had first
0assed an order in relation to the $ustod6 of the $hild. That is
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the .K. CourtJs order %as first in 0oint of time and thereafter
the other 0art6 sought order from the Court in ndia. 'hat is
most im0ortant to note is that in A8*&'- M*'- #5+&'$! it %as
finall6 $on$luded that On$e the .K. 7igh Court of -usti$e
dire$ted that the $hild 9e 0rodu$ed, in our $onsidered vie%, the
retention of the $hild in ndia %ould 9e unla%ful.O 'hat
%eighed on the mind of the Court in the $ase of A8*&'- M*'-
is that the 7igh Court of -usti$e in K had first in 0oint of time
issued dire$tions that the $hild 9e 0rodu$ed 9efore it. Thus,
this is %hat %eighed on the mind of the Court %hile 0assing the
order in the $ase of A8*&'- M*'-. 7o%ever, this main $riteria
that Pas the 7igh Court of -usti$e EKF has dire$ted that the
$hild 9e 0rodu$ed, in our $onsidered vie%, the retention of the
$hild in ndia %ould 9e unla%fulJ, %ould not 9e attra$ted in the
fa$ts of the 0resent $ase 9e$ause here the Court in ndia had
first 0assed the order in relation to the $ustod6 of the $hild and
thereafter, the Court in .K. 0assed its order.
!". n the $ase of S(*-+' A
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agreed %ith the o9servations of the Delhi 7igh Court that due
res0e$t has to 9e given to the orders of the K Court. This
o9servation %as made 9e$ause, in that $ase, the K Court has
first 0assed orders in relation to the $ustod6 of the $hild. This
9e$omes $lear from 0aragra0h "2 of the udgment %herein it is
o9served that HAlthough, on first im0ression, it %ould a00ear
that the interest of minor $hild %ould 9e 9est served if she is
allo%ed to remain %ith the a00ellant, %e $annot lose sight of
the order dated 2.!!.2++8 0assed 96 the 7igh Court of
-usti$e, amil6 Division, K %hi$h ordered that minor &lina shall
remain a %ard of the K during her minorit6 till further orders.
!4. n 0aragra0h "4 in the $ase of S(*-+' A
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S(*-+' A
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the ha9eas $or0us 0etitions %ere 0referred 9efore the Courts in
ndia that the Delhi 7igh Court and the =u0reme Court held
that the $hild has to 9e returned 9a$5 to K or = as the $ase
ma6 9e.
!. Time and again in matters relating to the $ustod6 of
$hild, the =u0reme Court as %ell as other 7igh Courts have
held that the most im0ortant thing %hi$h is to 9e ta5en into
$onsideration is the interest and %elfare of the $hild. n the
ver6 de$isions on %hi$h relian$e %as 0la$ed 96 the learned
$ounsel for the a00ellant i.e. in the $ase of V. R'8* C(',&',
#S5+&'$A8*&'- M*'- #5+&'$ @ S(*-+' A
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#elgium. #ut the udgment %as reversed and it %as held that
the father 9e$ame entitled to $ustod6 of the $hild 96 $ommon
la% of #elgium. The mother too5 the $hild to &ngland. The
father then 9egan divor$e 0ro$eedings in #elgium and the
Court a00ointed him as guardian of the $hild. The Court
ordered the mother to return the $hild %ithin 24 hours,
ho%ever, she did not return the $hild. The father moved the
Court in &ngland for $ustod6 of the infant. The matter $ame u0
9efore Morton, -., %ho after hearing the 0arties, o9served thusG
HAt the moment m6 feeling is ver6 strong that even
assuming in the fatherJs favour that there is nothing
in his $hara$ter or ha9its %hi$h %ould render him
unfitted to have the $ustod6 of the $hild, the %elfare
of the $hild re>uires, in all the $ir$umstan$es as the6
eist, that he should remain in &ngland for the time
9eing....
n the 0resent $ase, the 0osition is that
nearl6 t%o 6ears ago, %hen the $hild %as alread6 in
&ngland, an interlo$utor6 order %as made 96 the
Divor$e Court in #elgium giving the $ustod6 of the
$hild to the father. do not 5no% ho% far, if at all, the
matter %as $onsidered on the footing of %hat %as
9est for the $hild at that time, or %hether it %as
regarded as a matter of $ourse that the father, 9eing
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the guardian 96 the $ommon la% of #elgium and the
a00li$ant in the divor$e 0ro$eedings and the onl6
0arent in #elgium, should 9e given the $ustod6.
$annot regard that order as rendering it in an6 %a6
im0ro0er or $ontrar6 to the $omit6 of nations if no%
$onsider, %hen the 9o6 has 9een in this $ountr6 for
nearl6 t%o 6ears, %hat is in the 9est interest of the
9o6. do not thin5 it %ould 9e right for the Court,
eer$ising its urisdi$tion over a %ard %ho is in this
$ountr6, although he is a #elgian national, 9lindl6 to
follo% the order made in #elgium on (.!+.!"@........
ought to give due %eight to an6 vie%s
formed 96 the $ourts of the $ountr6 %hereof the
infant is a national. B5 I *& / ' 5*
+-'*,- (' *, ) 8*? (* C/5& * %/5, *,
8& 9'! ?*(/5 =9+*/,! / &' (
?->'& /> * ?'& ' %*,< ( >*& ',
+'&')/5, 9/,*&'*/,! ?('8& /&& )'
('8 %, )' % ( 9/5& /> ', /(&
9/5,&.
E&m0hasis su00liedF
!8. n R'8* C(',&', #5+&'$ the =u0reme Court also
$onsidered the de$ision of the /riv6 Coun$il in M9 V.
M9! 171 AC 372: #171$ 1 ALL ER 42 #PC$. nM9 V.
M9 #5+&'$! the 0arties %ere Ameri$an CitiLens and the
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Court in .=.A. granted $ustod6 to the mother. The father too5
the $hild to Canada %ithout $onsent of the mother. The matter
eventuall6 $ame u0 9efore the /riv6 Coun$il and on A00eal
from the =u0reme Court of Canada at the instan$e of the
father, the /riv6 Coun$il held as follo%sG
H or, after reaffirming Pthe %ell esta9lished general
rule that in all >uestions relating to the $ustod6 of an
infant the 0aramount $onsideration is the %elfare of
the infantJ, he o9served that no $ase had 9een
referred to %hi$h esta9lished the 0ro0osition that,
%here the fa$ts %ere su$h as he found them to eist
in the $ase, the salient features of %hi$h have 9een
stated, a 0arent 96 the sim0le e0edient of ta5ing the
$hild %ith him a$ross the 9order into ntario for the
sole 0ur0ose of avoiding o9edien$e to the udgment
of the $ourt, %hose urisdi$tion he himself, invo5ed,
9e$omes Jentitled as of right to have the %hole
>uestion retried in our $ourts and to have them rea$h
a ne% and inde0endent udgment as to %hat is 9est
for the infantJ. And it is, in effe$t, 9e$ause he held
that the father had no su$h right that the -udge
allo%ed the a00eal of the mother, and that the
=u0reme Court made the order alread6 referred to.
#ut, %ith great res0e$t to the -udge, this
%as not the >uestion %hi$h had to 9e determined. t
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is 0ossi9le that a $ase might arise in %hi$h it
a00eared to a $ourt, 9efore %hi$h the >uestion of
$ustod6 of an infant $ame, that it %as in the 9est
interest of that infant that it should not loo5 9e6ond
the $ir$umstan$es in %hi$h its urisdi$tion %as
invo5ed and for that reason give effe$t to the foreign
udgment %ithout further in>uir6. #ut it is in the
negation of the 0ro0osition, from %hi$h ever6
udgment in this $ase has 0ro$eeded, namel6, that
the infantJs %elfare is the 0aramount $onsideration,
to sa6 that %here the trial -udge has in his dis$retion
thought fit not to ta5e the drasti$ $ourse a9ove
indi$ated, 9ut to eamine all the $ir$umstan$es and
form an inde0endent udgment, his de$ision ought for
that reason to 9e overruled. n$e it is $on$eded that
the Court of ntario had urisdi$tion to entertain the
>uestion of $ustod6 and that it need not 9lindl6 follo%
an order made 96 a foreign $ourt, the $onse>uen$e
$annot 9e es$a0ed that it must form an inde0endent
udgment on the >uestion, though in doing so it %ill
give 0ro0er %eight to the foreign udgment. 'hat is
the 0ro0er %eight %ill de0end on the $ir$umstan$es
of ea$h $ase.
!. rom 0aragra0h 2 of V. R'8* C(',&', #5+&'$, it is
$lear that the Court %as dealing %ith a $ase %here the $hild
%as removed in $ontravention of the orders of the Court %here
the 0arties had set u0 their matrimonial home. The =u0reme
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Court o9served that in su$h $ases, %hat are the fa$ts to 9e
ta5en into $onsideration. n 0aragra0h 2, it %as thus
o9servedG
O 'hile dealing %ith a $ase of $ustod6 of a $hild
removed 96 a 0arent from one $ountr6 to another Pin
$ontravention of the orders of the CourtJ %here the
0arties had set u0 their matrimonial home, the $ourt
in the $ountr6 to %hi$h the $hild has 9een removed
must first $onsider the >uestion %hether the $ourt
$ould $ondu$t an ela9orate en>uir6 on the >uestion of
$ustod6 or 96 dealing %ith the matter summaril6
order a 0arent to return $ustod6 of the $hild to the
$ountr6 from %hi$h the $hild %as removed and all
as0e$ts relating to the $hildJs %elfare 9e investigated
in a $ourt in his o%n $ountr6. =hould the $ourt ta5e a
vie% that an ela9orate en>uir6 is ne$essar6,
o9viousl6 the $ourt is 9ound to $onsider the H%elfare
and ha00iness of the $hild as the 0aramount
$onsideration and go into all relevant as0e$ts of
%elfare of the $hild in$luding sta9ilit6 and se$urit6,
loving and understanding $are and guidan$e and full
develo0ment of the $hildJs $hara$ter, 0ersonalit6 and
talents. 'hile doing so, the order of a foreign $ourt
as to his $ustod6 ma6 9e given due %eightageI the
%eight and 0ersuasive effe$t of a foreign udgment
must de0end on the $ir$umstan$es of ea$h $ase.
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2+. n V. R'8* C(',&',#5+&'$, a referen$e is made to
the de$ision n &,/ V. &,/ 167 C( 21; : #164$ 3 WLR
1210: #164$ 3 A-- ER 33! in %hi$h the fa$ts %ere thusG The
0laintiff mother, an talian lad6, married an &nglish man in tal6
%here 9oth %ere residing. A 9o6 %as 9orn there on 2.".!2.
n !.!+.!" the6 o9tained in talian $ourt a se0aration order
96 $onsent 0roviding therein that $ustod6 of the $hild %ould
remain %ith the father, %ith rights of a$$ess to the mother. n
2.!+.!", the father 9rought the infant to &ngland %ith
intention to ma5e &ngland as his home. The mother
$ommen$ed %ardshi0 0ro$eedings in %hi$h she 9rought a
motion for an order that the father should return the infant to
her in tal6. =he also 0ra6ed for restraint order against him
from ta5ing the infant out of her $are. #u$5le6, -. in these
fa$ts, held thusG
H=o that even %here a foreign $ourt has made anorder on the meritsB %hi$h is not the 0resent $ase,
9e$ause the onl6 order %hi$h has 9een made %as a
$onsent order %ithout an6 investigation of the merits
96 the talian Court : the domesti$ $ourt 9efore %hom
the matter $omes Ethe ntario Court in the $ase to
%hi$h have ust referred, or this Court in the $ase
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9efore meF is 9ound to $onsider %hat is in the 9est
interests of the infantI and although the order of the
foreign $ourt %ill 9e attended to as one of the
$ir$umstan$es to 9e ta5en into a$$ount it is not
$on$lusive one %a6 or the other. 7o% mu$h stronger
must the dut6 of this Court 9e to entertain the $ase
%here the foreign $ourt has not made an6 order
9ased on an6 investigation of the $ase on its merits.
Thus, in &,/ V. &,/ #5+&'$, it %as held that
Hthe 9est interest of the $hild is the 0aramount $onsideration
and the order of the foreign $ourt, is not $on$lusive. t is
0ertinent to note that the =u0reme Court in Ravi Chandran
Esu0raF, has not held that the vie% in #Js =ettlement in re #.3.
#Q, Kernot or M$Kee is the %rong vie%.
2!. 'e ma6 0oint out in the $ase of A8*&'- M*'- #5+&'$
%hi$h %as relied u0on 96 the learned $ounsel for the a00ellant,
in 0aragra0h ! it is o9served that O%e are $ons$ious of the
fa$t that in vie% of the o9servations made 96 the =u0reme
Court and udgment referred to aforesaid, it is the interest of
the $hild %hi$h is 0aramount. nterest of $hild al%a6s is to
have the 9enefit of $om0an6 of 9oth the 0arents, ho%ever,
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su$h an ideal situation is not 0ossi9le, the >uestion %ould arise
as to %hi$h of the 0arents is in a 9etter 0osition to loo5 after
the $hild.O t is to 9e noted that in the $ase of S'&*' S('&)'
V. S5(*- S('&)' #2000$ 3 SCC 14!and in the $ase of P'5-
M/(*,& G'(5, #5+&'$! it %as held 96 the =u0reme Court
that normall6 a $hild ma6 9e 9etter ta5en $are of 96 the
mother. n the 0resent $ase, the $ustod6 of the $hild is %ith
the mother.
22. n the $ase of A8*&'- M*'- #5+&'$, a referen$e %as
made in 0ara !+ to the de$ision of the =u0reme Court in the
$ase of S'&*' S('&)' V. S5(*- S('&)' #5+&'$. n the said
matter, the mother had removed the $hild from =A des0ite
the order of the Court of that $ountr6. t %as o9served 96 the
=u0reme Court that a female $hild should ordinaril6 9e allo%ed
to remain %ith the mother so that she $an 9e 0ro0erl6 loo5ed
after and in the given fa$ts of that $ase 0ro0er $are %as 9eing
given to the $hild in ndia and thus in s0ite of the order 0assed
96 the Court in =A, it %as held that it %ould not 9e 0ro0er to
hand over the $ustod6 of the $hildren to the res0ondent and
0ermit him to ta5e the $hildren to =A.
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2". n the $ase of S'&*' S('&)' #5+&'$! first the
Ameri$an Court had 0assed the order regarding $ustod6 of the
$hild, then the mother moved the $hild from =A to ndia. n
S'&*' S('&)' #5+&'$, it is o9served 96 the =u0reme Court
that the mother had removed the $hildren from =A des0ite
the order of the Ameri$an Court, 6et in the said $ase, it %as
o9served as underG
H/ara . Therefore, it %ill not 9e 0ro0er to 9e guided
entirel6 96 the fa$t that the a00ellant =arita had
removed the $hildren from =A des0ite the order of
the $ourt of that $ountr6. =o also, in vie% of the fa$ts
and $ir$umstan$es of the $ase, the de$ree 0assed 96the Ameri$an $ourt though a relevant fa$tor, $annot
override the $onsideration of %elfare of the minor
$hildren. 'e have alread6 stated earlier that in =A
res0ondent =ushil is sta6ing along %ith his mother
aged a9out 8+ 6ears. There is no one else in the
famil6. ;.... Though it is true that 9oth the $hildren
have Ameri$an $itiLenshi0 and there is 0ossi9ilit6 that
in =A the6 ma6 9e a9le to get 9etter edu$ation, it is
dou9tful if the res0ondent %ill 9e in a 0osition to ta5e
0ro0er $are of the $hildren %hen the6 %ere so 6oung.
ut of them, one is a female $hild, %ho is aged a9out
( 6ears ordinaril6 female $hild should 9e allo%ed to
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remain %ith the mother so that she $an 9e 0ro0erl6
loo5ed after.
24. n S'&*' S('&)' #5+&'$, it is further o9served that
H$onsidering all as0e$ts relating to the H%elfare of the
$hildren, %e are of the o0inion that in s0ite of the order 0assed
96 the Court =A it %as not 0ro0er for the 7igh Court to have
allo%ed the ha9eas $or0us %rit 0etition and dire$ted the
a00ellant to hand over the $ustod6 of the $hildren to the
res0ondentBhus9and and 0ermit him to ta5e them to =A.
'hat %ould 9e in the interest of $hildren, re>uires a full and
thorough in>uir6 and therefore, the 7igh Court should have
dire$ted the res0ondent to initiate the a00ro0riate 0ro$eedings
in %hi$h su$h in>uir6 $an 9e held.
2(. Thus, the =u0reme Court o9served that the de$ree
0assed 96 the foreign Court $annot override $onsideration of
%elfare of the minor. rom the fa$ts of S'&*' S('&)' #5+&'$!
it is $lear that the =u0reme Court %as dealing %ith a $ase
%here the $hild %as removed in $ontravention of the orders of
the Court %here the matrimonial home %as. Des0ite that the
=u0reme Court held that 0aramount $onsideration is the
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%elfare of the $hild. n the 0resent $ase, there is no
$ontravention of an6 order of an6 Court in K as the Court here
in ndia had first 0assed the order in relation to $ustod6 of the
$hild in favour of the res0ondent.
2. 'e ma6 ma5e useful referen$e to the $ase of
D(',?',* J/(* V. M'('8 U, #1"$ 1 SCC 112! in
%hi$h the effe$t of international norms regarding a00li$a9ilit6
of de$isions of = $ourts on ndian $ourts %as $onsidered 96
the =u0reme Court and it %as found that the same %as su9e$t
to 0aramount $onsideration of the %elfare of the $hild. The
order of the = $ourt granting $ustod6 of the $hild to the
res0ondent %as held not 9inding on the A0e Court as the $hild
%as settled %ith the mother. t %as o9served that the Court to
%hi$h the $hild %as moved $ould $ondu$t summar6 in>uir6 and
the Court %ould return the $hild to the $ountr6 from %hi$h the
$hild has 9een removed unless su$h return $ould 9e sho%n to
9e harmful to the $hild. The overriding $on$ern ho%ever,
remains the $hildJs %elfare.
2@. The =u0reme Court in the $ase of D(',?',* J/(*
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#5+&'$! relied on( 9**/, *, M9 V. M9 #5+&'$.
'e have alread6 adverted to the de$ision in $ase of M9 V.
M9%hile dis$ussing the udgment in Ravi Chandran Case.
n relation to M9 V. M9, the =u0reme Court in
D(',?',* J/(* o9served that HThe leading $ase in this
9ehalf is the one rendered 96 the /riv6 Coun$il in !(! in
M9 V. M9 171 AC 372 : #171$ 1 A-- ER 42 #PC$ . n
that $ase, the 0arties %ho are Ameri$an $itiLens, %ere married
in =A and lived there till De$em9er, !4. n !@.!2.!4! the
de$ree of divor$e %as 0assed in =A and $ustod6 of the $hild
%as later given to the mother. The father too5 a%a6 the $hild
to Canada. n ha9eas $or0us 0ro$eedings 96 the mother
though initiall6, the de$ision of the lo%er Court %ent against
the mother, the =u0reme Court of Canada gave her $ustod6
9ut the said Court held that the father $ould not have held the
>uestion of $ustod6 retried in Canada on$e the >uestion %as
held in favour of the mother earlier. n a00eal ?ord =imonds
held that in 0ro$eedings relating to $ustod6 9efore the
Canadian Court, Pthe %elfare and ha00iness of the infant are of
0aramount $onsiderationJ and the order of the foreign $ourt in
=A as to the $ustod6 of the $hild $an 9e given due %eightage
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in the $ir$umstan$es of the $ase, 9ut su$h an order of the
foreign $ourt %as onl6 one of the fa$ts %hi$h must 9e ta5en
into $onsideration. t %as further held that it %as dut6 of the
Canadian Court to form an inde0endent udgment on the
merits of the matter in regard to the %elfare of the $hild. The
order of the foreign $ourt in = %ould 6ield to the %elfare of
the $hild. JComit6 of $ourts demanded not its enfor$ement 9ut
its grave $onsiderationJ. The =u0reme Court further o9served
that the la% laid do%n in M9 V. M9 #5+&'$ is the
la% in K, Canada, =A and Australia and it is follo%ed in those
$ountries.
1 &m0hasis =u00lied ]
28. Thereafter the =u0reme Court in the $ase of
D(',8',* J/(* #5+&'$, o9served that ho%ever, there is an
a00arent $ontradi$tion 9et%een the vie% of M9 V. M9
#5+&'$ andH. #I,>',$! *, & #166$ 1 WLR 3"1 #C( @ CA$:
#166$ 1 A-- ER ""6 #CA$. The =u0reme Court o9served that
this a00arent $onfli$t %as e0lained and resolved 96 the Court
of A00eal in 1;4 *, L.#M*,/&$, n & #1;4$ 1 WLR 270:#1;4$
1 ALL ER 13 #CA$ and in R. #M*,/&$! I, & #1"1$ 2 FLR 416
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#CA$. t %as held 96 Court of A00eal in L#M*,/&$ in
+&'$ that the vie% in M9 V. M9 #5+&'$is still the
$orre$t vie% and the limited >uestion %hi$h arose in the later
de$isions %as %hether the Court in the $ountr6 to %hi$h the
$hild %as removed, $ould $ondu$t a summar6 in>uir6 or an
ela9orate in>uir6 on the >uestion of $ustod6. n the $ase of
summar6 in>uir6, the Court %ould return the $ustod6 to the
$ountr6 from %hi$h the $hild %as removed, unless su$h return
$ould 9e held to 9e harmful to the $hild. n the $ase of
ela9orate in>uir6, the Court $ould go into merits as to %here
the 0ermanent %elfare la6 and ignore the order of the foreign
$ourt or treat the fa$t of removal of the $hild from another
$ountr6 as onl6 one of the $ir$umstan$es. t %as o9served
that the $ru$ial >uestion as to %hether the Court Ein the
$ountr6 to %hi$h the $hild is removedF %ould eer$ise the
summar6 or ela9orate 0ro$edure is to 9e determined a$$ording
to the $hildJs %elfare. t %as further o9served that the
summar6 urisdi$tion to return the $hild is invo5ed, for eam0le
if the $hild has 9een removed from his native land and
removed to another $ountr6, %here, ma6 9e, his native
language is not s0o5en, or the $hild gets divor$ed from the
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"!. n the $ase of R'( . G5+' V. R') G/+'-
Auires that the
0resent $ustod6 should 9e $hanged and the $hild should 9e left
in the $are and $ustod6 of some one else. n the 0resent $ase,
the $ustod6 of the $hild $annot 9e said to 9e illegal as the
res0ondent mother is holding the $ustod6 of the $hild 0ursuant
to an order dated 2.!.2++" %hi$h order %as first 0assed 96 the
Court in ndia, 0rior to an6 order 9eing 0assed 96 the Court in
.K. Moreover, the $hild as of toda6 is a9out "B!*2 6ear old and
she is %ell settled %ith the mother and there is no reason %h6
0resent $ustod6 should 9e $hanged.
"2. Thus, in all the a9ove de$isions, it is held that
%henever a >uestion arises 9efore the Court 0ertaining to the
$ustod6 of a minor, the matter is to 9e de$ided not on
$onsideration of legal rights of the 0arties 9ut on the sole and
0redominant $riterion of %hat %ould 9e the interest of the
minor. n the 0resent $ase, the minor is a girl $hild %ho is "
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and half 6ears old. t is dou9tful if the a00ellant %ill 9e in a
0osition to ta5e 9etter $are of a girl $hild %ho is so 6oung. n
the other hand, the res0ondent %ho is in ndia, has su00ort of
her sister, mother and other relatives %ho $an hel0 her in
loo5ing after the $hild. n su$h $ase, the $ustod6 of the
mother %ould 9e the 9est. The =u0reme Court also in the $ase
of S'&*' V. S5(*- S('&)' #5+&'$! has o9served that
ordinaril6 the female $hild should 9e allo%ed to remain %ith the
mother so that she $an 9e 0ro0erl6 loo5ed after. =o also in the
$ase of /aul ahun Esu0raF, it %as held that normall6 a female
$hild ma6 9e 9etter ta5en $are of 96 the mother.
"". Mr. -auhar then argued that the $ourts in all $ountries
are 9ound to ensure that one 0arent does not get an6
advantage of an6 %rong doing li5e moving the $hild from one
$ountr6 to another. 7e relied on the de$ision in the $ase of
A&'(* B',* V B',* J'
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$ases %here the first order in relation to the $ustod6 of the
$hild %as 0assed 96 a foreign $ourt in favour of one 0arent and
then thereafter the other 0arent has ta5en the $hild outside the
urisdi$tion of that $ountr6. 7o%ever, in the 0resent $ase, no
order has 9een 0assed 96 the K Court 9efore the res0ondent
9rought the $hild to ndia and hen$e, it $annot 9e said that the
res0ondent has $ommitted an6 %rong doing. n the 0resent
$ase, the first order relating to $ustod6 of the minor $hild is of
the Court in ndia. The said order is dated 2.!.2+!". The
orders 0assed 96 K Court are su9se>uent. There is no $ase
of flouting of an6 order in K. n su$h $ase, it $annot 9e held
that the res0ondent is guilt6 of an6 %rong doing.
"4. Thereafter, Mr. -auhar argued that the de$isions in
the $ase of M9 V. M9! L#M*,/&$! D(',8',* J/(* B
S-),! *, &! B. V. B! *, & ', &,/ #5+&'$ %ere
$onsidered in V. R'8* C(',&',and thereafter, the =u0reme Court
dire$ted the $hild to 9e ta5en 9a$5 to =A. t is 0ertinent to note
that in R'8* C(',&', #5+&'$! the =u0reme Court has not held
that the vie% in the M9 V. M9! #M*,/&$! B
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S-), *, &! B. V. B D(',8',* J/(*! ', &,/
#5+&'$ is an in$orre$t vie% 9ut the =u0reme Court o9served
that the fa$ts and $ir$umstan$es of the $ase in R'8* C(',&',
#5+&'$do not %arrant an ela9orate in>uir6 and did not re>uire
the 0arties to 9e relegated to the said 0ro$edure 9efore an
a00ro0riate forum in this $ountr6 in this regard. The de$ision
in the $ase of R'8* C(',&', %as rendered in a 7a9eas
Cor0us /etition and no 0ro$eedings %ere initiated 96 an6 of the
0arties 9efore the amil6 Court. 7o%ever, in the 0resent $ase,
the matter is alread6 0ending 9efore an a00ro0riate forum in
this $ountr6. No% that the matter is 0ending 9efore the amil6
Court at #andra, it %ould 9e in the fitness of things that an
ela9orate in>uir6 is $ondu$ted into the >uestion of $ustod6 of
minor Mihi5a. No dou9t, in R'8* C(',&', #5+&'$ the minor
Adith6a %as an Ameri$an $itiLen 9orn and 9rought u0 in =A
and he had s0ent his initial 6ears there. The =u0reme Court
o9served that as a matter of fa$t, 5ee0ing in vie% the %elfare
and ha00iness of the $hild and in his 9est interest the 0arties
had o9tained a series of $onsent orders $on$erning his
$ustod6*0arenting rights, maintenan$e, et$. from the
$om0etent $ourts of urisdi$tion in Ameri$a. Thus, %hat
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%eighed on the mind of the Court in the $ase of R'8* C(',&',
#5+&'$ is the fa$t that all the orders $on$erning $ustod6 of
the minor $hild Adith6a had 9een 0assed 96 the Ameri$an
$ourts 96 the $onsent of the 0arties and thereafter the $hild
%as removed from =A to ndia. n su$h $ase, the 0rin$i0le of
$omit6 of $ourts %ould $ome into 0la6 as the $hild %as
removed to ndia $ontrar6 to the $ustod6 orders of the Court in
=A. n the 0resent $ase, the ndian Court has 0assed the first
order in relation to the $ustod6 of the $hild and thereafter, the
K Court has 0assed orders dire$ting that the $hild is made the
%ard of the K Court. f the 0rin$i0le of $omit6 of $ourts is to
9e follo%ed, the Court in K %ould have to 6ield to the order
0assed 96 the Court in ndia as the Court in ndia had 0assed
the first order in relation to the $ustod6 of the $hild.
"(. Another reason for the =u0reme Court in R'8*
C(',&', #5+&'$ dire$ting that the $hild 9e ta5en 9a$5 to
=A is that though the $hild had 9een in ndia for almost t%o
6ears $ontrar6 to the orders of the = Court, the $hild had not
develo0ed roots in ndia. The reason %as that the mother had
9een removing the $hild from one 0la$e to another and from
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one =tate to another, therefore, his edu$ation did not ta5e
0la$e at one 0la$e. The $hild %as removed from one s$hool to
another. 7e %as admitted in the s$hool at Deheradun 96 the
mother and removed %ithin a fe% months. n the month of
-une, 2++ the $hild had 9een admitted in some s$hool at
Chennai. The =u0reme Court o9served that the mother had
9een moving the $hild from one =tate to another, in su$h
$ir$umstan$es, there %as no o$$asion for the $hild to develo0
roots in this $ountr6.
". n the 0resent $ase, 0etition for $ustod6 of the $hild
%as moved under 7indu Marriage A$t %hi$h is $lear from the
title of the /etition No. AB! of 2+!" %hi$h %as moved 96 the
%ife for divor$e 9efore the amil6 Court at #andra, Mum9ai. As
the a00li$ation for $ustod6 has 9een moved in the said 0etition,
it is o9viousl6 under the 7indu Marriage A$t and not under the
uardianshi0 and 'ards A$t under %hi$h man6 de$isions %ere
relied u0on on the 0oint that 0etition has to 9e moved in the
urisdi$tion of the Court %here the minor ordinaril6 resides.
There is no su$h restri$tion under the 7indu Marriage A$t as is
found in the uardianshi0 'ards A$t.
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"@. As the %ife first in 0oint of time has filed 0etition
9efore the amil6 Court for $ustod6 of the minor $hild Mihi5a,
this Court %ould 9e the $losest to de$ide the issue regarding
the $ustod6 of the minor $hild and not K Court %hi$h %as
moved su9se>uentl6 after the Court in ndia %as moved. The
Court in ndia %as alread6 in seisin of the matter and had
alread6 0assed order though interim in nature in relation to the
$ustod6 of the $hild and it is thereafter that K Court 0assed an
order ma5ing the $hild %ard of the K Court. As far as moving
the Court in K 96 the a00ellant is $on$erned, the 0etition
moved 96 him 9efore K $ourt sho%s that the a00ellant %as
a%are of the matter 0ending 9efore the Court in ndia in
relation to the $ustod6 of the $hild. rom the material 9efore
us it is also $lear that the A00ellant %as also a%are of the order
dated 2.!.2+!" 0assed 96 the amil6 Court, Mum9ai in relation
to $ustod6 of the $hild. Though he dis$losed 9efore the Court
in K that su$h matter %as 0ending 9efore the Court in ndia,
he did not dis$lose that order regarding $ustod6 of the $hild
had 9een 0assed 96 the Court in ndia. 7ad he dis$losed this
fa$t to the Court in K loo5ing to the 0rin$i0le of $omit6, the
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K Court ma6 not have 0assed the order dire$ting Mihi5a to 9e
a %ard of the Court in K. n$e the a00ellant $ame to 5no%
that the order had 9een 0assed 96 the Court here in ndia, the
0ro0er $ourse for him %as to have a00roa$hed the Court here
in ndia and not the Court in .K.
"8. Another reason %h6 %e $annot loo5 into the orders
0assed 96 the Court in .K. is that the orders %ere not 0assed
on the merits of the $ase. =e$tion !" of the C./.C. reads as
underG
H13. W(, >/&*
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EeF %here it has 9een o9tained 96 fraudI
EfF %here it sustains a $laim founded on a 9rea$h of
an6 la% in for$e in ndia.
n 9are 0erusal of three orders 0assed 96 the Court
in .K. it is >uite $lear that it %as not 9eing given on the merits
of the $ase and as su$h, the said orders $annot 9e said to 9e
$on$lusive.
" Mr. Mu$hhala the learned $ounsel for the Res0ondent
0la$ed relian$e on the de$ision of the /riv6 Coun$il in the $ase
of B&*-'- R')*' ', ',/(& V. G/8*,&') G/&(','
S'&*' ', /(&re0orted in AIR #34$ 14; P&*8 C/5,9*-
12! %herein it is held that under se$tion !" of Civil /ro$edure
Code, a foreign udgment shall not 9e $on$lusive %here it has
not 9een given on the merits of the $ase. Mr. Mu$hhala
0ointed out that three orders 0assed 96 the .K. Court are not
at all on the merits of the $ase and in su$h $ase, it $annot 9e
said that these orders are $on$lusive or have an6 9inding
effe$t.
4+ Thereafter the learned $ounsel for the a00ellant
0ointed out that the $hild is sta6ing at Thane %ith her mother.
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n su$h $ase, the Court in Mum9ai %ould have no urisdi$tion
to entertain the a00li$ation see5ing $ustod6 of the $hild. The
main 0etition in the 0resent $ase is for divor$e under the 7indu
Marriage A$t. t is an admitted fa$t that 9oth the a00ellant and
res0ondent %ere married at Dadar, Mum9ai as 0er 7indu 3edi$
rites. nder =e$tion ! of the 7indu Marriage A$t, a 0etition
$an 9e 0resented %here the marriage too5 0la$e. 7en$e, in
su$h $ase, the 0etition $ould 9e filed 9efore the amil6 Court at
#andra, Mum9ai, in %hose urisdi$tion Dadar falls. 'e re0eat
that a00li$ation for $ustod6 %as made in the 0etition for
divor$e. That means the a00li$ation %as made under =e$tion
2 of the 7indu Marriage A$t. The title of the 0etition itself
ma5es it $lear that the 0etition is filed under =e$tions !"E!FEiaF
and 2 of the 7indu Marriage A$t. The Court at ?ondon is not
the $om0etent $ourt of urisdi$tion to de$ide the issue of
dissolution of marriage 9et%een t%o 7indus married in ndia as
0er the 7indu 3edi$ rites and $eremonies. The =u0reme Court
in the $ase ofY. N'&'*)('&'/ V. Y. V,''-'()* #11$
3 SCC 471! held that the marriages %hi$h ta5e 0la$e in this
$ountr6 $an onl6 9e under either the $ustomar6 or the
statutor6 la% in for$e in this $ountr6. 7en$e, the onl6 la% that
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$an 9e a00li$a9le to the matrimonial dis0utes is the one under
%hi$h the 0arties are married, and no other la%. The =u0reme
Court so o9served %hile $onsidering the a00li$ation of a foreign
udgment in matrimonial dis0ute. t %as further o9served that
the 0arties do and ought to 5no% their rights and o9ligations
%hen the6 marr6 under a 0arti$ular la%. The6 $annot 9e heard
to ma5e a grievan$e a9out it later or allo%ed to 960ass it 96
su9terfuges as in the 0resent $ase. n the $ase of
N'&'*)('&'/ #5+&'$! the =u0reme Court $ategori$all6
o9served that marriages 0erformed under the 7indu Marriage
A$t $an 9e dissolved onl6 under the said A$t. Naturall6
0rovisions of the 7indu Marriage A$t %ith regard to urisdi$tion
%ould also $ome into 0la6. The a00ellant has no $ase that the
a00li$ation for divor$e $ould 9e made 9efore the Court in K
under the 7indu Marriage A$t.
4!. t ma6 9e noti$ed that none of the 0rovisions of 7.M.
A$t la6 do%n the time and $ondition under %hi$h it %ill $ease to
a00l6. n other %ords, on$e the 0rovisions of 7indu Marriage
A$t a00l6, it %ould $ontinue to a00l6 as long as the marriage
eists and even for dissolution of the marriage. The 7indu
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marriage gives rise to 9undle of rights and o9ligations 9et%een
the 0arties to the marriage and their 0rogen6. Therefore, the
s6stem of la% %hi$h should govern a marriage, should remain
$onstant and $annot $hange %ith vagaries*%hims of the 0arties
to the marriage. 'e ma6 9riefl6 glan$e at Cheshire and North
/vt. nternational ?a%, %herein the learned Author at /age !24
0oints out that Hit has 9een universall6 re$ognised that
>uestions affe$ting the 0ersonal status of a human 9eing
should 9e governed $onstantl6 96 one and the same la%,
irres0e$tive of %here he ma6 ha00en to 9e or of %here the
fa$ts giving rise to the >uestion ma6 have o$$urred. f the
0ro0osition that the time at %hi$h the domi$ile is to 9e
determined is %hen the 0ro$eedings under 7indu Marriage A$t
$ommen$es, is a$$e0ted then ever6 0etition filed 96 the %ife
%hose hus9and moves from one $ountr6 to another for the
0ur0oses of o9 or for an6 0ur0ose %hatsoever, he %ould 9e
a9le to frustrate a 0etition 9rought 96 the %ife 96 $hanging his
domi$ile even 9et%een the 0resentation of the 0etition and the
hearing of the $ase. The rule is Hon$e $om0etent, al%a6s
$om0etent and this %ill 9e so even if the 0art6 domi$iled in
ndia at the time of their marriage has sin$e $hanged his
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domi$ile, disasso$iated himself from the determination of his
status 96 the Court in ndia. The 0ro0osition of la% $anvassed,
that the time at %hi$h the domi$ile is to 9e determined is %hen
the 0ro$eedings are $ommen$ed, therefore, $annot 9e
a$$e0ted, insofar as the 0etitions under 7indu Marriage A$t is
$on$erned, inasmu$h as it %ould 9e against the 0u9li$ 0oli$6 in
this $ountr6 and %hi$h ma6 $reate a serious so$ial 0ro9lem.
The 7indu so$iet6 is dee0l6 interested in maintaining integrit6
of the nstitution of the marriage. n$e the 0arties have
sele$ted 7indu Marriage A$t as their 0ersonal la%, the6 $annot
a9di$ate the same at their free %ill or as 0er eigen$ies of
situation or a$$ording to their %hims and fan$ies. Therefore,
%e are of the $onsidered o0inion that the time at %hi$h the
domi$ile is to 9e determined is %hen the 0arties tie nu0tial
5not under the 7indu Marriage A$t and not the date %hen an
a00li$ation is made for matrimonial reliefs. As a natural
$orollar6 thereof, even if a 0art6 to the matrimonial 0etition
esta9lishes that after marriage he a$>uired domi$ile of some
other $ountr6, it %ould not ta5e a%a6 the urisdi$tion of the
Court in ndia if on the date of the marriage he %as domi$iled
in ndia. t is unust that a 0art6 to the marriage $an $hange his
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entire s6stem of 0ersonal la% 96 his or her unilateral de$ision.
f that is allo%ed it %ould ma5e the 0osition of a %ife ver6
misera9le or hel0less. 'e have therefore, no hesitation in
holding that the 0rovisions of 7indu Marriage A$t %ill $ontinue
to a00l6 to the marriage of 0arties %ho %ere admittedl6
domi$iled in ndia on the date of their marriage and the6
$annot 9e heard to ma5e a grievan$e a9out it later or allo%ed
to 96B0ass it 96 su9terfuges. The rule, as o9served 96 the a0e
Court in the $ase ofY. N'&*)(' R'/ also has an advantage
of res$uing the institution of marriage from un$ertain maLe of
the rules of the /rivate nternational ?a% of the different
$ountries %ith regard to urisdi$tion.
42. A Division #en$h of this Court in the $ase of S/,5&
R'*,* V. S/,5& G/+'- 2007#4$ M(.L.J. 6"" has also
o9served that the issue of domi$ile is to 9e $onsidered on the
date of marriage and not on date of filing 0etition. This
de$ision %as $arried to the =u0reme Court in S/,5& G/+'-
V. S/,5& R'*,* 11 #2013$ DMC "33 #SC$ : #2013$ ;
SCC 426 and the =u0reme Court did not set aside %hat the
#om9a6 7igh Court had held in =ondur Raini Esu0raF that
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domi$ile is to 9e $onsidered on the date of marriage.
4". The a00ellant admittedl6 9eing a 7indu, if he has
solemniLed marriage 96 7indu 3edi$ rites in Mum9ai in ndia,
then im0liedl6 he has su9mitted himself to the urisdi$tion of
this Court. #6 marr6ing in ndia as 0er the 0rovisions of the
7indu Marriage A$t, the a00ellant $annot es$a0e 0utting forth
his domi$ile.
44. Admittedl6, 9oth the a00ellant and the res0ondent
%ere earlier $itiLens of ndia and domi$iled in ndia. The6 got
married at Dadar in Mum9ai in ndia on [email protected]++. The
a00ellant 9e$ame a $itiLen of .K. in the 6ear 2++ and the
%ife 9e$ame $itiLen of .K. on 24.8.2+!!. Thus, initiall6 the6
%ere domi$iled in ndia that is their domi$ile of origin is ndia
and later on the6 9e$ame .K. $itiLens and %ere domi$iled in
.K. 7o%ever, thereafter the res0ondent has returned 9a$5 to
ndia on !2.!2.2+!2 as her mother %as hos0italiLed.
Thereafter she has $ontinued to sta6 in ndia on a$$ount of illB
health of her mother. riginall6 though she intended to return
9a$5, thereafter, her intention $hanged loo5ing to the health of
her mother and other $ir$umstan$es. The a00li$ation %hi$h she
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has made 9efore the amil6 Court $learl6 sho%s that she
intends to reside in ndia in the net man6 6ears to $ome. n
the a00li$ation it is $learl6 stated that she %ould go to .K. onl6
to %ind u0 things there. This sho%s that she is see5ing to
revive her domi$ile of origin and she has underta5en man6
ste0s in that dire$tion. As the res0ondent is $onstrained to
sta6 in ndia and hen$e, is no% 0lanning to sta6 in ndia %hi$h
is seen from her a00li$ation as %ell as re0l6 filed 9efore the
amil6 Court, Mum9ai in a00li$ation filed 96 the hus9and
raising 0oint of urisdi$tion in relation to order 0assed relating
to $ustod6 of $hild. =he has $learl6 stated therein that she has
$onve6ed to the soli$itor of the a00ellant in ?ondon that she
%ould return to the K onl6 to %ind things u0 as she has
0lanned to sta6 in ndia. The 0ermanent home of the
res0ondent is no% in ndia, hen$e, she %ishes to get admission
for her $hild in ndia and a$$ordingl6, the $hild has 9een
admitted to a s$hool in ndia. The res0ondent has also
resigned from her o9 in .K. on 2.!.2+!". This resignation
letter has also 9een a$$e0ted in .K. on 4.!.2+!". This further
sho%s her intention of reverting 9a$5 to her domi$ile of origin.
The learned $ounsel for the a00ellant again reiterated that the
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res0ondent is not a domi$ile of ndia. =he is domi$iled in .K.
n fa$t, the a00ellant, res0ondent as %ell as the $hild are .K.
$itiLens and domi$iled in .K., hen$e, the amil6 Court at
#andra %ould not have urisdi$tion. 7e further 0ointed out
that 0rior to the marriage %hi$h too5 0la$e on [email protected]++ also
the Res0ondent %as residing in .K. Residen$e and domi$ile
are t%o different things. There is nothing to sho% that on the
date of marriage she %as domi$iled in .K. n fa$t she a$>uired
.K. CitiLenshi0 on 24.(.2+!!. t is to 9e noted that the la%
attri9utes to ever6 0erson at 9irth a domi$ile %hi$h is $alled
domi$ile of origin. This domi$ile ma6 9e $hanged and ne%
domi$ile %hi$h is $alled domi$ile of $hoi$e a$>uiredI 9ut the
t%o 5inds of domi$ile differ in one res0e$t. The domi$ile of
origin is re$eived 96 o0eration of la% at 9irthI the domi$ile of
$hoi$e is a$>uired later 96 the a$tual removal of an individual
to another $ountr6. The domi$ile of origin is al%a6s 0resent in
the 9a$5ground %aiting to 9e revived at an6 time. The $ondu$t
of the 0erson %ould sho% %hether he has reverted to his
domi$ile of origin. The $ondu$t of the res0ondent %hi$h %e
have adverted to a9ove 0rima fa$ie sho%s that she has
reverted to her domi$ile of origin.
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4(. Mr. -auhar relied on the de$ision of the =u0reme
Court in the $ase of S/,5& G/+'- V. S/,5& R'*,* #2013$ ;
SCC 426 in relation to domi$ile. n the said $ase, 9oth the
hus9and and %ife %ere 7indus, married in #anglore in ndia,
thereafter the6 moved to =%eden, 9e$ame =%edish $itiLens in
the 6ear !@. n -une, !@, the a00ellant and the res0ondent
moved to ndia as the em0lo6er of the res0ondent %as setting
u0 9usiness in ndia. The6 lived in ndia till mid ! %ith the
minor $hild Natasha. n Mid !, the res0ondent %ent to
=6dne6 as his em0lo6er offered him o9 in =6dne6, Australia.
The hus9and, %ife as %ell as minor $hild Natasha %ent to
=6dne6 on s0onsorshi0 3=A %hi$h allo%ed them to sta6 and
%or5 in Australia for a 0eriod of four 6ears. The se$ond $hild
%as 9orn to them at =6dne6 on .2.2++!. The res0ondent lost
his o9 in Australia on @[email protected]++!. 7en$e, the6 all shifted 9a$5 to
=%eden. n 2.!+.2++2 the hus9and got another o9 in =6dne6,
Australia. 7e also got tem0orar6 3=A there. n !8.!2.2++2
he %ent to =6dne6 and on !4.!2.2++2, the %ife left for Mum9ai
%ith the $hildren. n "!.!.2++" the %ife along %ith $hildren
left for Australia. After a9out a 6ear, the %ife $ame 9a$5 to
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ndia %ith 9oth the $hildren. The hus9and sta6ed 9a$5 in
=6dne6. The %ife then filed 0etition see5ing de$ree of udi$ial
se0aration under =e$tion !+ of the 7indu Marriage A$t and also
0ra6ed for 0ermanent $ustod6 of the minor $hild. The hus9and
raised a 0lea that as he %as not domi$iled in ndia, hen$e, the
0etition %as hit 96 0rovisions of =e$tion !E2F of the 7indu
Marriage A$t. n short, his $ase %as that the6 %ere $itiLens of
=%eden and 0resentl6 the hus9and is domi$iled in Australia,
therefore, the 0etition under 7indu Marriage A$t in ndia %as
not maintaina9le. As stated earlier, this matter $ame u0
9efore the #om9a6 7igh Court. The #om9a6 7igh Court held
that even if it is assumed that the hus9and had a9andoned his
domi$ile of his origin i.e. ndia and a$>uired domi$ile of =%eden
along %ith $itiLenshi0 in !@, he had a9andoned the domi$ile
of =%eden %hen he shifted to =6dne6, Australia. n su$h $ase,
it %as $lear that domi$ile of ndia got revived immediatel6 on
his a9andoning the =%edish domi$ile. This is in vie% of the
settled 0rin$i0le of nternational ?a% that if domi$ile of origin is
dis0la$ed as a result of a$>uisition of domi$ile of $hoi$e,
domi$ile of origin remains in the 9a$5ground read6 to revive
the moment he a9andons his domi$ile of $hoi$e. This Court
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held that amil6 Court %as %rong in 0ro$eeding on the
assum0tion that sin$e the 0arties a$>uired $itiLenshi0 in
=%eden, the6 a9andoned the domi$ile of origin in ndia and
a$>uired domi$ile of =%eden. Thus, this Court held that 9oth
%ere domi$iled in ndia and the Court in ndia had urisdi$tion.
This vie% %as u0held 96 the =u0reme Court in S/,5& G/+'- V.
S/,5& R'*,* #5+&'$. As stated earlier in the 0resent $ase,
the res0ondent is rel6ing on a series of events to sho% that she
has given u0 her domi$ile of $hoi$e and reverted 9a$5 to her
domi$ile of origin i.e ndia. &>uall6 it is the a00ellantJs $ase
that the domi$ile of the res0ondent %ife is still .K. n su$h
$ase, it %ould 9e ne$essar6 for 9oth sides to lead eviden$e
9efore the amil6 Court here %here /etition No. AB! of 2+!" is
0ending. t is 0ertinent to note that till no% no o9e$tion has
9een raised 9efore the amil6 Court that the 0etition for
divor$e is not maintaina9le for %hatsoever reason or that there
%as an6 %ant of urisdi$tion to entertain the 0etition for
divor$e, on this ground also, it %ould not 9e 0ossi9le for us to
entertain su$h a 0lea raised for the first time 9efore us.
4. t is 0ertinent to note that no $ase %as 0leaded or no
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$ase %hatsoever %as made out to %arrant the ree$tion of the
main 0etition under rder 3 Rule !! of C./.C. The 0ra6er of
the a00ellant is onl6 that the Court $ould not have 0assed su$h
order relating to the $ustod6 of the minor $hild.
4@. Thereafter, Mr. -auhar relied on a de$ision of a single
-udge of this Court in the $ase of '()*&' '- V
*(/&5)'& M/(', '- 2010#3$ RCR #C*8*-$ 334. 7e
0ointed out that in the said $ase, it %as held that if the 0arties
are not domi$iled in ndia, then the 0etition for divor$e is not
maintaina9le in ndia. n the said $ase, the amil6 Court held
that it had the urisdi$tion to tr6 the 0etition for divor$e. n the
0resent $ase, no su$h ground has 9een raised 9efore the
amil6 Court, hen$e, no su$h order has 9een 0assed in relation
to su$h ground, hen$e, there is no >uestion of us de$iding
%hether su$h an order is right or not. The a00ellant $annot 9e
0ermitted to raise su$h a ground for the first time 9efore us in
a00eal %ithout first raising it 9efore the trial Court. n an6
event, even if su$h a ground is raised 9efore the amil6 Court,
it %ould 9e a00ro0riate loo5ing to the fa$ts of this $ase that the
0arties lead eviden$e and then the 0oint of urisdi$tion is
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de$ided.
48. t is also 0ointed out that out of initial 0eriod of t%o
6ears and eight months, Mihi5a s0ent !" months and five da6s
in ndia and thereafter, sin$e !.!2.2+!2, Mihi5a is in ndia. n
su$h $ase, the sta6 of the $hild in ndia $annot 9e termed as a
transit sta6. There are various other fa$ts relied u0on 96 the
res0ondent to sho% she has returned to her original domi$ile
that is ndia. All these as0e$ts are su$h that it %ould re>uire
eviden$e to 9e led for the issue to 9e de$ided.
4. n the 0resent $ase, the a00ellant did not enter the
%itness 9o nor he eamined an6 %itnesses on his 9ehalf
9efore the amil6 Court. 'hat is in the interest of the minor
%ould re>uire a full and through en>uir6 for %hi$h it %ould 9e
ne$essar6 to lead eviden$e. n the fa$ts of the 0resent $ase,
even on the 0oint of domi$ile, eviden$e %ould have to 9e led.
n su$h $ase, it %ould 9e a00ro0riate that 9oth the 0arties lead
eviden$e 9efore the amil6 Court in Mum9ai and thereafter,
the matter is de$ided 96 the amil6 Court here.
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(+. n an6 event, it is seen that the amil6 Court has
granted $ustod6 of the $hild to the mother onl6 96 %a6 of an
interim arrangement. The issue of de$iding the $ustod6 and
guardianshi0 %ould arise onl6 after re$ording of the eviden$e
at the final stage.
(!. n vie% of the a9ove fa$ts, the orders dated 2.!.2+!"
and !@[email protected]+!" do not %arrant an6 interferen$e. There is no
merit in the a00eal, a00eal is dismissed. Re$ord and
0ro$eedings 9e sent 9a$5 to the trial Court.
(2. n vie% of the dismissal of the amil6 Court A00eal,
Civil A00li$ation Nos. 24! of 2+!", !! of 2+!4 and !42 of 2+!4
do not survive and are dis0osed of a$$ordingl6.
SHRI. V.L.ACHLIYA ! J. SMT. V..TAHILRAMANI! J.
kandarkar
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(". At this stage, learned $ounsel for the a00ellant see5s
sta6 to this order to ena9le the a00ellant to $hallenge the same
9efore the =u0reme Court. The re>uest is reasona9le, hen$e,
this order is sta6ed for a 0eriod of five %ee5s from toda6.
SHRI. V.L.ACHLIYA ! J. SMT. V..TAHILRAMANI! J.
kandarkar