# 7 S.C.R. 674 RUCHI MAJOO v. · SANJEEV MAJOO

- **Citation:** [2011] 7 S.C.R. 674
- **Court:** Supreme Court of India
- **Decided:** 2011-05-13
- **Case number:** Civil Appeal No. 4435 of 2011
- **Bench:** V.S. Sirpurkar, T.S. Thakur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/7-s-c-r-674-ruchi-majoo-v-sanjeev-majoo-27854
- **Pages:** 48

## Headnote

Guardian and Wards Act, 1890: s.9 - Jurisdiction of the
court to entertain claim for grant of custody of a minor - Held: .
C Any challenge to the jurisdiction of the court as regards the
custody of the minor has to be seen in the context of th&"';
averments made in the pleadings of the parties and the
requirement of s. 9 - Bare reading of s. 9 shows that the solitary
test for determining the jurisdiction of the court uls. 9 of the Act
D is the 'ordinary residence' of the minor- The expression used
is "where the minor ordinarily resides"...;. Whether the minor is
ordinarily residing at a given place is primarily a question of
intention which in tum is a question of fact- In the instant case,
the correspondence exchanged between the parents of the
E minor clearly showed that the minor was ordinarily residing with .
the mother-appellant in Delhi and was admitted to a school
and studying for the past three years - The father-respondent
continued to support that decision even when he was far away
from any duress and coercion alleged by him till the time he
F suddenly changed his mind and started accusing the
appellant of abduction - High Court failed to notice these
aspects and fell in error in accepting the version of the
respondent and dismissing the application filed by the
appellant for custody of the minor on the ground that the court
G at Delhi had no jurisdiction to entertain the same -
Jurisdiction.
Jurisdiction: Parens Patraie jurisdiction - Jurisdiction of
the court to entertain claim for grant of custody of a minor -
Recognition of decrees and orders passed by foreign courts
H
674
RUCHI MAJOO v. SANJEEV MAJOO
675
- Held: Courts in India are bound to determine the validity of A
foreign decrees and orders keeping in view the provisions of
s.13 of the Code of Civil Procedure 1908 as amended by the
Amendment Act of 1999 and 2002 -
The duty of Court
exercising its Parens Patraie jurisdiction as in cases involving
custody of minor children is onerous - Welfare of the minor B
in such cases being the paramount consideration, the court
has to approach the issue regarding the validity and
enforceme[lt of a foreign decree or order carefully - Simply .
because a foreign court has taken a particular view on any
aspect concerning the . welfare of the minor is not enough for c
the Indian courts to shut out .an independent consideration of
the matter ...:. Objectivity and not abjecfsurrender is the mantra
in such cases - That would not, however, mean that the order
passed. by a foreign court is not even a factor 'to be kept in
view - Code of Civil Procedure 1908 - s.13.
Doctrines/Principles: Principle Of comity of courts - Held:
The principle of 'comity of courts' ensures that foreign
judgments and orders are unconditionally conclusive of the
matter in controversy- This is all the more so where the courts
D
in India is dealing with matters concerning the interest and E
welfare of minors including their custody- Interest and welfare
of the minor being paramount, a competent court in India is
entitled and indeed duty bound to examine the matter
independently, taking the foreign judgment, if any, only as an
input for its final adjudication - In the instant case, the
F
respondent-father's case that the minor was removed from the
jurisdiction of the American Courts in contravention of the
orders passed by ,them, was not factually correct - There were
no proceedings between the parties in any Court in America
before they came to India with the minor - Such proceedings G
were instituted by the respondent only after he had agreed to
leave the appellant and the minor behind in India, for the ·
, · former to explore career options and the latter to get admitted
to a school - The charge of abduction contrary to a valid order
granting custody was, therefore, untenable - Moreover, th.e H
676
SUPREME COURT REPORTS
(2011) 7 S.C.R.
A minor has been living in India and pursuing his studies in a
reputed school in Delhi for nearly three years- He appeare

## Text

_Characters 0–39,574 of 96,232. This is a partial read: ask again with offset=39574 for what follows._

A
B
(2011] 7 S.C.R. 674
RUCHI MAJOO
v.
· SANJEEV MAJOO
(Civil Appeal No. 4435 of 2011)
MAY 13, 2011
[V.S. SIRPURKAR AND T.S. THAKUR, JJ.]
Guardian and Wards Act, 1890: s.9 - Jurisdiction of the
court to entertain claim for grant of custody of a minor - Held: .
C Any challenge to the jurisdiction of the court as regards the
custody of the minor has to be seen in the context of th&"';
averments made in the pleadings of the parties and the
requirement of s. 9 - Bare reading of s. 9 shows that the solitary
test for determining the jurisdiction of the court uls. 9 of the Act
D is the 'ordinary residence' of the minor- The expression used
is "where the minor ordinarily resides"...;. Whether the minor is
ordinarily residing at a given place is primarily a question of
intention which in tum is a question of fact- In the instant case,
the correspondence exchanged between the parents of the
E minor clearly showed that the minor was ordinarily residing with .
the mother-appellant in Delhi and was admitted to a school
and studying for the past three years - The father-respondent
continued to support that decision even when he was far away
from any duress and coercion alleged by him till the time he
F suddenly changed his mind and started accusing the
appellant of abduction - High Court failed to notice these
aspects and fell in error in accepting the version of the
respondent and dismissing the application filed by the
appellant for custody of the minor on the ground that the court
G at Delhi had no jurisdiction to entertain the same -
Jurisdiction.
Jurisdiction: Parens Patraie jurisdiction - Jurisdiction of
the court to entertain claim for grant of custody of a minor -
Recognition of decrees and orders passed by foreign courts
H
674
RUCHI MAJOO v. SANJEEV MAJOO
675
- Held: Courts in India are bound to determine the validity of A
foreign decrees and orders keeping in view the provisions of
s.13 of the Code of Civil Procedure 1908 as amended by the
Amendment Act of 1999 and 2002 -
The duty of Court
exercising its Parens Patraie jurisdiction as in cases involving
custody of minor children is onerous - Welfare of the minor B
in such cases being the paramount consideration, the court
has to approach the issue regarding the validity and
enforceme[lt of a foreign decree or order carefully - Simply .
because a foreign court has taken a particular view on any
aspect concerning the . welfare of the minor is not enough for c
the Indian courts to shut out .an independent consideration of
the matter ...:. Objectivity and not abjecfsurrender is the mantra
in such cases - That would not, however, mean that the order
passed. by a foreign court is not even a factor 'to be kept in
view - Code of Civil Procedure 1908 - s.13.
Doctrines/Principles: Principle Of comity of courts - Held:
The principle of 'comity of courts' ensures that foreign
judgments and orders are unconditionally conclusive of the
matter in controversy- This is all the more so where the courts
D
in India is dealing with matters concerning the interest and E
welfare of minors including their custody- Interest and welfare
of the minor being paramount, a competent court in India is
entitled and indeed duty bound to examine the matter
independently, taking the foreign judgment, if any, only as an
input for its final adjudication - In the instant case, the
F
respondent-father's case that the minor was removed from the
jurisdiction of the American Courts in contravention of the
orders passed by ,them, was not factually correct - There were
no proceedings between the parties in any Court in America
before they came to India with the minor - Such proceedings G
were instituted by the respondent only after he had agreed to
leave the appellant and the minor behind in India, for the ·
, · former to explore career options and the latter to get admitted
to a school - The charge of abduction contrary to a valid order
granting custody was, therefore, untenable - Moreover, th.e H
676
SUPREME COURT REPORTS
(2011) 7 S.C.R.
A minor has been living in India and pursuing his studies in a
reputed school in Delhi for nearly three years- He appeared
to be happy with his studies and school and did not evince
any interest in returning to his school in America - Dismissal
of the application for custody in disregard of the attendant
B
circumstances was not a proper exercise of discretion by the
High Court - Interest of the minor shall be better served if he
continued in the custody of his mother - High Court was not
right in declining exercise of jurisdiction on the principle of
comity of Courts - Code of Civil Procedure 1908 - s.13.
c
Child welfare: Visitation rights to non-custodial parent -
Held: An interim order of custody in favour of the parent
should not insulate the minor from the parental touch and
influence of the other parent which is so very important for the
healthy growth of the minor and the development of his
D personality - In the instant case, the minor seemed to have
been thoroughly antagonized against the respondent-father
- For 11 years old boy, a deep rooted dislike for the father
could arise only because of a consta11t hammering of negative
feeling in him against his father - This approach and attitude
E
on the part of the appellant or her parents is not correct - It is
important that the minor has his father's care and guidance,
at this formative and impressionable stage of his fife - Role
of the father in his upbringing and grooming to face the
realities of fife cannot be undermined - It is in that view
F
important for the child's healthy growth that the father is
granted visitation rights that will enable the two to stay in touch
and share moments of joy, learning and happiness with each
other- Trial Court shall pass necessary orders in this regard
without delay and without permitting any dilatory tactics in the
G matter.
Code of Criminal Procedure, 1973: s.482 - Quashing of
proceedings - Petition for quashing the FIR registered against
respondent-husband and three others for offences punishable
ulss.498A, 406 read with s.34 /PC- High Court quashing the
H
t=IR against in-laws on the ground that the appellant-
RUCHI MAJOO v. SANJEEV MAJOO
677
complainant was a citizen of USA and had all along lived in
A
USA with her son and husband, away from her in laws - Held:
No reason to interfere with the orders passed by the High
Court - Penal Code, 1860 - ss.498A, 406 r.w. s.34.
Words and phrases: Word 'ordinary', 'resides; 'ordinarily
resides' - Meaning of.
B
The appellant-mother obtained an order dated 4th
April, 2009 passed by the ADJ at Delhi in a petition filed
under Sections 7, 8, 10, 11 of the Guardians and Wards
Act granting interim custody of her minor son to her. c
Aggrieved, the respondent-father filed a petition under
Article 227 of the Constitution of India before the High
I
Court of Delhi.
The High Court allowed the petition and dismissed
the custody case filed by the appellant primarily on the
D
ground that the Court at Delhi had no jurisdiction to
entertain the .same as the minor was not ordinarily
residing in Delhi, a condition which was precedent for the
Delhi Court to exercise jurisdiction. The High Court
further held that all issues relating to the custody of child
E
ought to have been agitated and decided by the Court in
America not only because that Court had already passed
an order to that effect in favour of the respondent, but
·also because all the three parties namely, the parents of
the minor and the minor himself were American citizens.
F
The questions which arose for consideration in these
appeals were whether the High Cou.rt was justified in
dismissing the petition for custody of the minor on the
ground that the court at Delhi had no jurisdictiQn to
entertain the same; whether the High Court was right in
G
declining exercise of jurisdiction on the principle of
comity of Courts and; whether the order granting interim
custody to the mother of the minor called for any
modification in terms of grant of visitation rights to the
father pending disposal of the petition by the trial court. · H
678
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A
Disposing of the appeals, the Court
HELD: 1.1. There is no gainsaying that any challenge
to the jurisdiction of the court as regards the custody of
the minor will have to be seen in the context of the
averments made in the pleadings of the parties and the
8 requirement of Section 9 of the Guardian and Wards Act,
1890. The appellant-mother had in her petition filed under
the Guardian and Wards Act, 1890 invoked the
jurisdiction of the Court at Delhi, on the assertion that the
minor was, on the date of the presentation of the petition
C for custody ordinarily residing at 73 Anand Lok, August
Kranti Marg, New Delhi. The petition enumerated at
length the alleged acts of mental a11d physical cruelty of
the respondent-husband towards the appellant, including .
his alleged addiction to pornographic films, internet sex
D and adulterous behavior during the couple's stay in
America. It traced the sequence of events that brought
them to India for a vacation and the alleged misdemeanor .
of the respondentthat led to the appellant taking decision·
to stay back in India instead of returning to United States
E as originally planned. The appellant further alleged that
she had informed the respondent about a petition JJnder
the Guardian and Wards Act being ready for presentation
before the Guardian Court at Delhi, whereupon the
respondent was alleged to have agreed to the appellant
F staying back in Delhi to explore career options and to the
minor continuing to stay with her. The respondent
eventually returned. to America around 20th July, 2008,
whereafter he is alleged to have started threatening the
appellant that unless the latter returned to America with
G the minor, he would have the child removed and put in
the custody of the respondent's parents at Udaipur.
Apprehending that the .respondent may involve the
appellant in some false litigation in America and asserting
that she was fit to be given the custody of the minor being
H his mother and natural guardian, the appellant sought the
RUCHI MAJOO v. SANJEEV MAJOO
679
inter\iention of this Court and· her appointment as sole
A
guardian of the minor. [Paras 5~71 [692-E~H; 693-A•B-F·H; ·
694-A]
.
.
1.2. Section 9 of the Guardian and Wards Act, 1890
makes a specific provision as regards the jurisdiction of 8
the Court to entertain a claim for grant of custody of a
minor. While sub-section (1) of Section 9 identifies the
court competent to pass an order for the custody of the
persons of the minor, sub-sections (2) & (3) thereof deal
with c.ourts that can be approached for guardianship of
the property owned by the minor. A bare reading of C
Section 9 shows that the solitary test for determining the
jurisdiction of the court under Section 9 of the Act is the
'ordinary residence' of the minor. The expression used
is "Where the minor ordinarily .resides". Now whetherthe
minor is ordinarily residing at a given place is primarily a
D
. question of .intention which in tum is a question of fact.
It may at best be a mixed question of la.w and fact, but
unless the jurisdictional facts are admitted it can never
be a pure question of law, capable of being answered
without an enquiry into the factual aspects of the
E
controversy. The factual aspects relevant to the question
·of jurisdiction are not admitted in the instant case. There
were serious disputes on those aspects. The expression
'ordinarily resident' has been used in different contexts
and statutes and has often come up for interpretation.
F
Liberal interpretation is the first and the foremost rule of
. interpretation. The word 'ordinary' is defined by the
Black's Law Dictionary as regula.r; usual; normal;
common; often recurring; according to established
. order; settled; customary; reasonable; not characterized
G
by peculiar or unusual circui;nstances. The word 'reside'
has been explained as live; dwell; abide; sojourn; stay;
remain; lodge. [Paras 13, 14 and 15) [697-8-C; E-H; 698A-C]
I
Black's Law Dictionary - referred to.
H
680
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A
1.3. It is evident from the statement andthe pleadings
of the. parties that the question whether the decision to
allow the appellant and the minor son to stay back in
Delhi instead of returning to America was a voluntary
decision as claimed by the appellant or a decision taken
B by the respondent under duress as alleged by him was
a seriously disputed question of facts, a satisfactory
answer to which could be given either by the District
Court where the custody case was filed or by the High
Court only after the parties had been given opportunity
c to adduce evidence in support of their respective
versions. [Para 24) [702-E-F]
Mrs. Annie Besant v. Narayaniah AIR 1914 PC 41; Mst.
Jagir Kaur and Anr. v. Jaswant Singh AIR 1963 SC 1521:
1964 SCR 73; Ku/dip Nayar & Ors. v. Union of India & Ors.
D 2006 (7) SCC 1: 2006 (5) Suppl. SCR 1; Bhagyalakshmi and
Anr. v. K.N. Narayana Rao AIR 1983 Mad 9; Aparna
Banerjee v. Tapan Banerjee AIR 1986 P&H 113; Ram Sarup
v. Chimman Lal and Ors. AIR 1952 All 79; Smt. Vim/a Devi
v. Smt. Maya Devi & Ors. AIR 1981 Raj. 211; In re: Dr.
E Giovanni Marco Muzzu and etc. etc. AIR 1983 Born. 24 -
referred to.
1.4. The e-mails exchanged between the parties,
copies whereof were on record. The first of these E-mails
F was dated 17th· July, 2008 sent by the respondent tO his
friend in America pointing out that the appellant was
staying back in India with the minor for the present. On
21st July, 2008 i.e. a day after the respondent reached
America the appellant sent him an E-mail which clearly
indicated that the minor was admitted to a school in Delhi
G and by which the respondent was asked to send
American school's record for that purpose. It is difficult
to appreciate how the respondent could in the light of
these communications still argue that the decision to
allow the appellant and the minor son to stay back in India
H was taken under any coercion or duress. It is also difficult
RUCHI MAJOO v. SANJEEV MAJOO
681
t9 appreciate how the respondent could change his mind
A
so soon after the said E-mails and rush to a Court in U.S.
for custody of the minor accusing the appellant of illegal
abduction, a charge which was belied by his letter dated
19th July, 2008 a11d the E-mails. The fact remaine~ that
the minor was ordinarily residing with the appellant and
was admitted to a school and studying for the past nearly
three years. The unilateral reversal of a decision by one
of the two parents could not change the fact situation as
B
to the minor being an ordinary resident of Delhi, when the
decision was taken jointly by both the parents. The High c
Court was not right in holding that the respondent's
version regarding the letter in question having been
obtained under threat and coercion was acceptable. The
High Court appeared to be of the view that if the letter
had not been written under duress and coercion there
0
was no reason for the respondent to move a
guardianship petition before U.S. Court. The question
whether or not the letter was obtained under duress and
coercion could not be decided only on the basis of the
institution of proceedings by the respondent in the U.S.
Court. If the letter was under duress and coercion, there
was no reason why the respondent should not have
repudiated the same no sooner he landed in America and
E
the alleged duress and coercion had ceased. Far from
doing so the respondent continued to support that
decision even when he was far away from any duress and
F
coercion alleged by him till the time he suddenly changed
his mind and started accusing the appellant of abduction.
The High Court failed to notice these aspects and fell in
error in accepting the version of the respondent and
dismissing the application filed by the appellant. In the G
circumstances the High Court was not justified in
dismissing the petition for custody of the minor on the
ground that the court at Delhi had no jurisdiction to
entertain the same. [Paras 26, 27, 31 and 32] [703-E-F;
704-C-D; 706-A-H; 707-A-D]
H
682
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A
2.1. Recognition of decrees and orders passed by
foreign courts remains an eternal dilemma in as much as
whenever called upon to do so, Courts in India are bound
to determine the validity of such decrees and orders
keeping in view the provisions of Section 13 of the Code
B of Civil Procedure 1908 as amended by the Amendment
Act of 1999 and 2002. The duty of a Court exercising its
Parens Patraie jurisdiction as in cases involving custody
of minor children is all the more onerous. Welfare of the
minor in such cases being the paramount consideration;
c the court has to approach the issue regarding the validity
and enforcement of a foreign decree or order carefully.
Simply because a foreign court has taken a particular
view on any aspect concerning the welfare of the minor
is not enough for the courts in this country to shut out
0 an independent consideration of the matter. Objectivity
and not abject surrender is the mantra in such cases.
That does not, however, mean that the order passed by
a foreign court is not even a factor to be kept in view. But
it is one thing to consider the foreign judgment to be
conclusive and another to treat it· as a factor or
E consideration that would go into the making of a final
decision; Judicial pronouncements on the subject are not
on virgin ground. A long line of decisions of the court
has settled the approach to be adopted in such matters.
The plentitude of pronouncements also leaves cleavage
F in the opinions on certain aspects that need to be settled
authoritatively in an appropriate case. [Para 33] [707-EH; 708-A-B]
Smt. Satya v. Shri Teja Singh (1975) 1 SCC 120: 1975
G (2) SCR 97; Dhanwanti Joshi v. Madhav Unde 1998(1) SCC
112: 1997 (5) Suppl. SeR 30; Sarita Sharma v. Sushi/
Sharma (2000) 3 SCC 14: 2000 (1) SCR 915; V. Ravi
Chandran (Dr.) (2) v. Union of India and Ors. (2010) 1 sec
174: 2009 (15) SCR 960; Shi/pa Aggarwal (Ms.) v. Avira/Mittal
H & Anr. (2010) 1 sec 591: 2009 (16) SCR 287; Smt. Surinder
RUCHI MAJOO v. SANJEEV MAJOO
683
Kaur Sandhu v. Harbax Singh Sandhu and Anr. (1984) 3 SCC
A
698: 1984 (3) SCR 422; Mrs. Elizabeth Dinshaw v. Arvand
M. Dinshaw and Anr. (1987) 1 SCC 42: 1987 (1) SCR 175 -
referred to.
McKee v. KcKee 1951 (1) All ER 942; J v. C 1969(1) All
ER 788 - referred to.
2.2. In cases arising out of proceedings under the
Gua.rdian and War<ts Act, the jurisdiction of the Court is
determined by whether the minor ordinarily resides within
8
the area on which the Court exercises such jurisdiction.
C
There is thus a significant difference between the
jurisdictional facts relevant to the exercise of powers by
a writ court on the one hand and a court under. the
Guardian and Wards Act on the other. No matter a Court
is exercising powers under the Guardian and Wards Act o
it can choose to hold a summary enquiry into the matter
• and pass appropriate orders provided it is otherwise
competent to entertain a petition for custody of the minor ·
.under Section 9(1) of the Act. The issue whether the Court
should hold a summary or a detailed enquiry would arise
E
only if the Court finds that it has the jurisdiction to
entertain the matter. If the answer to the question
touching jurisdiction is in the negative the logical result
has to be an order of dismissal of the proceedings or
return of the application for presentation before the Court
competent to entertain the same. A Court that has no
jurisdiction to entertain a petition for custody cannot
pass any order or issue any direction for the return of the
child to the country from where he has been removed,
F
no matter such removal is found ·to be. in violation of an
order issued by a Court in that country. The party G
aggrieved of such removal, may seek any other remedy
legally open to it. But no redress to such a party will be
permissible before the Court who finds that it has no
jurisdiction to entertain the proceedings. [Paras 40, 41]
£713-F-H; 714-G-H; 715-A-B]
H
684
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A
Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112:
1997 (5) Suppl. SCR 30 - referred to.
2.3. The Court at Delhi was in the facts and
circumstances of the case competent to entertain the
application filed by the appellant. The High Court was not
8 right in relying upon the principle of comity of courts and
dismissing the application. The first and foremost reason
is that 'comity of courts' principle ensures that foreign
judgments and orders are unconditionally conclusive of
C the matter in controversy. This is all the more so where
the courts in this country deal with matters concerning
the interest and welfare of minors including their custody.
Interest and welfare of the minor being paramount, a
competent court in this country is entitled and indeed
duty bound to examine the matter independently, taking
D the foreign judgment, if any, only as an input for its final
adjudication. Secondly, the respondent's case that the·
minor was removed from the jurisdiction of the American
Courts in contravention of the orders passed by them, is
not factually correct. There were no proceedings between
E the parties in any Court in Ameri~a before they came to
India with the minor. Such proceedings were instituted
by the respondent only after he had agreed to leave the
appellant and the minor behind in India, for the former to
explore career options and the latter to get admitted to a
F school. The charge of abduction contrary to a valid order
granting custody was, therefore, untenable. Thirdly, the
minor has been living in India and pursuing his ~tudies
in a reputed school in Delhi for nearly three years now.
In the course of the hearing of the case, the judges
G interacted with the minor in chambers. He appeared to be
happy with his studies and school and did not evince
any interest in returning to his school in America. His
concern was more related to the abduction charge and
consequent harassment being faced by his mother and
H maternal grandparents. The minor appeared to be settled
RUCHI MAJOO v. SANJEEV MAJOO
685
in his environment including his school studies and A
friends. He also held the respondent responsible for the
troubles which his mother was undergoing and was quite
critical about the respondent getting married to another
woman. Fourthly, because even the respondent did not
grudge the appellant getting custody of the minor, B
provided she returns to America with the minor. In the
light of all these circumstances, repatriation of the minor
to the United States, on the principle of 'comity of courts'
does not appear to be an acceptable option worthy of
being exercised at this stage. Dismissal of the application c
for custody in disregard of the attendant circumstances
was not a proper exercise of discretion by the High Court.
Interest of the minor shall be better served if he continued
in the custody of his mother the appellant in this appeal,
especially when the respondent has contracted a second 0
marriage and did not appear to be keen for having actual
custody of the minor. The High Court was not right in
declining exercise of jurisdiction on the principle of.
comity of Courts. [Paras 42- 45, 47) [715-C-H; 716-F-H;
717-A•C]
E
3.1. The order of the Delhi Court granting interim·
custody of the minor to the appellant did not make any
provision for visitation rights of the respondent father of
the child. In the ordinary course the court ought to have
done so not only because even an interim order of F
custody in favour of the parent should not insulate the
minor from the parental touch and influence of the other
parent which is so very important for the healthy growth
of the minor and the development of his personality.
Even the respondent did not claim such rights in his G
application· or in the proceedings before the High Court.
The respondent's apprehensions about his safety, if he
were to visit India in order to meet the child and associate
with him may not be entirely out of place but that does
not mean that the courts below could not grant redress H
686
SUPREME COURT REPORI S
[lU11j 1 S.C.R.
A against the same. One of these apprehensions is that the
respondent may be involved in a false case under
\ Section 498A and 406 of the IPC or provisions like the
'Prohibition of Dowry Act 1961. A case FIR was, in fact,
registered against the respondent, which was quashed
B by the High Court. The appeal against the said order was
dismissed, which must effectively give a quietus to that
controversy, and allay the apprehension of the
respondent. [Para 48] [717-D-H; 718-A]
3.2. The course of an interactive session with the
C minor showed that the minor was thoroughly
antagonized against the respondent father. He held him
responsible for his inability to travel to Malaysia, with his
grandparents because if he does so, both the mother and
her parents will be arrested on the charge of abduction
D of the minor. He also held the respondent responsible for
his grandparent's skin problems and other worries .. He
. wanted to stay only in India and wanted to be left alone
by the respondent. He was reluctantly agreeable to
meeting and associating with the respondent provided
E the respondent has the red corner notice withdrawn so
· that he and his grandparents can travel abroad. [Para 49]
[718-B-E]
3.3. For a boy so young in years, these and other
F
expressions suggesting a deep rooted dislike for the
father could arise only because of a constant hammering
of negative feeling in him against his father. This
approach and attitude on the part of the appellant or her
parents can hardly be appreciated. What the appellant
G ought to appreciate is that feeding the minor with such
dislike an~ despire for his father does not serve his
interest or his growth as a normal child. It is important
that the minor has his father's care and guidance, at this
formative and impressionable stage of his Ufe. Nor can
the role of the father in his upbringing and grooming to
H
RUCH! MAJOO v. SANJEEV MAJOO
687
· face the realities of life be undermined. It is in that view
A
important for the child's healthy growth that the father is
granted visitation rights that will enable the two to stay
in touch and share moments of joy, learning and
happiness with each other. Since the respondent is living
in another continent such contact cannot be for obvious a
reasons· as frequent as it may have been if they were in
the same city. But the forbidding distance that separates
the two would get reduced thanks to the modern
technology in telecommunications. The appellant has
been according to the respondent persistently c
preventing even telephonic contact between the father
and the son. May be the son has been so poisoned
against him that he does not evince any interest in the
. father. Be that as it may telephonic contact shall not be
prevented by the appellant for any reason whatsoever D
and shall be encouraged at all reasonable time. Video
c.onferencing may also be possible between the· two
which too shall not only be permitted but encouraged by•
· the appellant. Besides, the father shall be free to visit the
· rninor in India at any time of the year and meet him for
two hours on a daily basis, unhindered by any E
impediment from the mother or her parents or anyone
else for that matter. The place where the meeting can take
place shall be indicated by the trial Court after verifying
the convenience. of both the parties in this regard. The
trial Court shall pass necessary orders in this regard
F
without delay and without permitting any dilatory tactics
in the matter. [Para 50] [718•E-H; 719-A·E]
3.4. For the vacations in summer, spring and winter
the respondent shall be allowed to take the minor with G
him for night stay for a period of one week initially arid
for longer periods in later years, subject to the
. . respondent getting th~ itinerary in this regard approved
.. ·from the.Guardiari and Wards Court. The respondent
. shall. also be free to take the minor out of Delhi subject
H
688
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A to the same condition. The respondent shall for that
purpose be given the temporary custody of the minor in
presence of the trial court, on any working day on the
application of the respondent. Return of the minor to the
appellant shall also be accordingly before the trial court
B on a date to be fixed by the court for that purpose. These
directions are subject to the condition that the
respondent does not remove the child from the
jurisdiction of this Court pending final disposal of the
application for grant of custody by the Guardian and
c Wards Court, Delhi. within the broad parameters of the
directions regarding visitation rights of the respondent,
the parties shall be free to seek further directions from
the Court seized of the guardianship proceedings; to take
care of any difficulties that may arise in the actual
D implementation of this order. [Para 51] [719•F-H; 720-AB]
4. In this appeal the appellant has challenged the
correctness of an order passed by the High Court of
Delhi, quashing the FIR registered against respondentE husband and three others for offences punishable under
Sections 498A, 406 read with Section 34 IPC. The High
Court has recapitulated the relevant facts and found that
the appellant-complainant is a citizen of USA and had all
along lived in USA with her son and husband, away from
F her in laws. The High Court has, on the basis of the
statement made by the appellant in California Court,
further found that the alleged scene of occurrence was
in USA and that her in-laws had no say in the matrimonial
life of the couple. The appellant had further stated that all
G her jewelry was lying in the couple's house in USA and
no part of it was with her in-laws as was subsequently
stated to be the position in the FIR lodged by the
appellant. No locker number of the bank was disclosed
in the FIR nor any date of the opening of locker or the
H jewelry items lying in it. The particulars of the bank in
RUCHI MAJOO v. SANJEEV MAJOO
689
which the alleged locker was taken by him were also not
A
given in the FIR. The High Court further held that the
appellant had not lodged any report although the
appellant's parents in-laws were allegl'!d to have stated
that the jewelry items were not commensurate with the
status of their family as early as in the year 1996. The
B
High Court in that view held that no offence under Section
498A and 406 IPC was made out against her in-laws on
the basis of the allegations made by the appellant in the
FIR. In that view of the matter, there is no reason to
interfere with the orders passed by the High Court. [Paras c
52, 53] [720-C-H; 721-A-B]
Case Law Reference:
AIR 1914 PC 41
referred to
Para 17
1964 SCR 73
referred to
Para 18
D
2006 (5) Suppl. SCR 1 . referred to
Para 19
AIR 1983 Mad 9
referred to
Para 20
AIR 1986 P&H 113
referred to
Para 20
E
AIR 1952 All 79
referred to
Para 20
AIR 1981 Raj. 211
referred to
Para 20
AIR 1983 Bom. 242
referred to
Para 20
F
1975 (2) SCR 97
referred to
Para 34
1997 (5) Suppl. SCR 30 referred to
P~ra 35
1951 (1) All ER 942
referred to
Para 35
1969(1) All ER 788
referred to
Para 35
G
2000 (1) SCR 915
referred to
Para 36
2009 (15) SCR 960
referred to
Para 37
H
A
B
690
SUPREME COURT REPORTS
(2009 (16) SCR 287
1984 (3) SCR 422
1987 ( 1 ) SCR 175
.
.
referred to
referred to
referred to
1997 (5) Suppl. SCR 30 referred to
[2011] 7 S.C.R.
Para 38
Para 39
Para 39
Para 40
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4435 of 2003.
From the Judgment & Order dated 8.3.2010 of the High
c Court of Delhi at New Delhi in CM (M) No. 448 of 2009.
WITH
Crl. A.No. 1184 of 2011.
D
. Rakesh Tiku, Sanjay Parikh, Ashok Bhan, Aashish Bhan,
N.S. Arora, Samridhi Sinha, Soumya Ray, Hashmi, Anish Shah,
Manoj Saxena, Anitha Shenoy for the Appellant.
Pallav Shishodia, Mukul Kumar for the Respondent
E
The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. Leave granted.
2. Conflict of laws and jurisdictions in the realm of private
international law is a phenomenon that has assumed greater
F dimensions with the spread of Indian diasporas across the
globe. A large number of our young and enterprising countrymen
are today looking for opportunities abroad. While intellectual
content' and technical skills of these youngster find them
lucrative jobs in distant lands, complete assimilation with the
G culture, the ways of life and the social values prevalent in such
countries do not come easy. The result is that in very many
cases incompatibility of temperament apart, diversity of
backgrounds and in.ability to accept the changed lifestyle often
lead to matrimonial discord that inevitably forces one or the
H other party to seek redress within the legal system of the country
RUCHI MAJOO v. SANJEEV MAJOO
691
[T.S. THAKUR, J.]
which they have adopted in pursuit of their dreams. Experience
A
has also shown that in a large number of cases one of the
parties may return to the. country of his or her origin for family
· support, shelter and stability. Unresolved disputes in such
sit.uations lead to legal proceedings in the country of origin as
well as in the adoptive country. Once that happens issues
B
touching the jurisdiction of the courts examining the same as
also comity of nations are thrown up for adjudication.
3. The present happens to be one such case where legal
proceedings have engaged the parties in a bitter battle for the
· custody of their only child Kush, aged about 11 years born in
C
America hence a citizen of that country by birth. These
proceedings included an action filed by the father-respondent
in this appeal, before t~e American Court seeking divorce from
the respondent-wife and also custody of master Kush. An order
passed by the Superior court of California, County of Ventura
D
in America eventually led to the issue of a red corner notice
based on allegations of child abduction 1.evelled against the
mother who like the father of the minor child is a person of Indian
origin currently living with her parents in Delhi. The mother took
refuge under an order dated 4th April, 2009 passed by the Addi.
E
District Court at Delhi in a petition filed under Sections 7, 8,
10, 11 of the Guardians and Wards Act granting interim custody
of the minor to her. Aggrieved by the said order the father of
the minor filed a petition under Article 227 of the Constitution
of India before the High Court of Delhi. By the order impugned
F
.. in this appeal the High Court allowed that petition, set aside
the order passed by the District Court and dismissed· the
custody case filed by the mother primarily on the ground that
the Court at Delhi had no jurisdiction to entertain the same as
the minor was not ordinarily residing at Delhi - a condition
G
precedent for the Delhi Court to exercise jurisdiction. The High
Court further held.that all issues relating to the custody of child
ought to be agitated and decided by the Court in America not
only because that Court had already passed an order to that
effect in ·favour of the father, but also because all the three
H
692
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A parties namely, the parents of the minor and the minor himself
were American citizens. The High Court buttressed its decision
on the principle of comity of courts and certain observations
made by this Court in some of the decided cases to which we
shall presently refer.
B
4. Three questions fall for determination in the above
backdrop. These are (i) Whether the High Court was justified
in dismissing the petition for custody of the minor on the ground
that the court at Delhi had no jurisdiction to entertain the same,
(ii) Whether the High Court was right in declining exercise of
C jurisdiction on the principle of comity of Courts and (iii) Whether
the order granting interim custody to the mother of the minor
calls for any modification in terms of grant of visitation rights to
the father pending disposal of the petition by the trial court. We
shall deal with the questions ad seriatim:·
D
Re: Question No.1
5. There is no gainsaying that any challenge to the
jurisdiction of the court will have to be seen in the context of
the averments made in the pleadings of the parties and the
E requirement of Section 9 of the Guardian and Wards Act, 1890.
F
A closer look at the pleadings of the parties is, therefore,
necessary before we advert to the legal requirement that must
be satisfied for the Court to exercise its powers under the Act
mentioned above.
6. The appellant-mother had in her petition filed under the
Guardian and Wards Act, 1890 invoked the jurisdiction of the
Court at Delhi, on the assertion that the minor was, on the date
of the presentation of the petition for custody ordinarily residing
G at 73 Anand Lok, August Kranti Marg, New Delhi. The petition
enumerated at length the alleged acts of mental and· physical
cruelty of the respondent- husband towards the appellant.
including his alleged addiction to pornographic films, internet
sex and adulterous behavior during the couple's stay in
H America. It traced the sequence of events that brought them to
RUCHI MAJOO v. SANJEEV MA.JOO
693
[T.S. THAKUR, J.]
India for a vacation and the alleged misdemeanor of the
A
respondent that led to the appellant taking a decision to past
company and to stay back in India instead of returning to United
States as originally planned. In para (xxxviii) of the petition, the
appellant said :
"That the petitioner in no certain terms told the
B
respondent that considering his past conduct which was
cruel, inhuman and insulting as well as humiliating, the
petitioner has no plans to be with the respondent and
wanted to stay away from him. The petitioner even
C
proposed that since there was no (sic) possibility for them
to stay together as husband and wife and as a result of
which the petitioner has decided to settle in India for the
time being, therefore some interim arrangement could be
worked out. The arrangement which was proposed by the
petitioner was that the petitioner will stay with her son for
D
the time being in India and make best arrangements for
his schooling. The petitioner had also conveyed to the
respondent that since he wanted to have visitation rights,
therefore, he must also contribute towards the upbringing
of the child in India. It was further suggested that some
E
cooling off period should be there so that the matrimonial
disputes could be sorted out subsequently."
7. The appellant further alleged that she had informed the
respondent about a petition under the Guardian and Wards Act
being ready for presentation before the Guardian Court at Delhi,
whereupon the respondent is alleged to have agreed to the
appellant staying back in Delhi to explore career options and
F
to the minor continuing to stay with her. The respondent
eventually returned to America around 20th July, 2008,
G
whereafter he is alleged to have started threatening the
appellant that unless the later returned to America with the·
minor, he would have the child removed and put in the custody
of the respondent's parents at Udaipur. Apprehending that the
respondent may involve the appellant in some false litigation
H
694
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A in America and asserting that she was fit to be given the
custody of the minor being his mother and natural guardian, the
appellant sought the intervention. of this Court and her
appointment as sole guardian of the minor.
8
8.