# SURYA VADANAN v. STATE OF TAMIL NADU & ORS

- **Citation:** [2015] 4 S.C.R. 903
- **Court:** Supreme Court of India
- **Decided:** 2015-02-27
- **Case number:** Criminal Appeal No. 395 of 2015
- **Bench:** Madan B. Lokur, Uday Umesh Laut
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/surya-vadanan-v-state-of-tamil-nadu-ors-30729
- **Pages:** 45

## Headnote

Family Law:
903
A
B
Custody and guardianship of foreign children -
C
determination - Whether by the domestic court or foreign
court - When the foreign court is seized of such issue -
Held: In such cases principle of 'best interests and welfare
of the child' and the principle of 'comity of courts' should 0
be applied - While deciding the best interest and welfare
of the child 'most intimate contact' doctrine and the 'closest
concern' with the child would be better equipped and best
suited to appreciate the social and cultural milieu of the
child - While applying the principle of comity of courts, the
E
'first strike' principle would be applicable - Deviation from
the principle of comity of courts should be a/lowed only in
special and compelling circumstances - For repatriation of
the child to the jurisdiction of the foreign court, it is for the
court either to conduct summary or elaborate inquiry F
regarding welfare and best interest of the child - In the
facts of the present case, the order of the foreign court was
passed first in point of time and hence the principle of
comity of courts would tilt the balance in favour of the
foreign court -
The foreign court has the most intimate G
contact and also the closest concern with the children and
their parents - Therefore, it would be in the best interests
and welfare of the children, if the foreign court takes final
903
H
904
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
decision regarding the custody of the children.
Disposing of the appeal, the Court
HELD: 1. The principle of the comity of courts is
8
essentially a principle of self-restraint, applicable when
a foreign court is seized of the issue of the custody of
a child prior to the domestic court. The two principles
namely (i) The principle of comity of courts and (ii) The
principle of the best interests and the welfare of the
C child are referred to "contrasting principles of law" but
they are not 'contrasting' in the sense of one being the
opposite of the other but they are contrasting in the
sense of being different principles that need to be
applied in the facts of a given case. [paras 50 and 52]
D [932-E-F; 934-C-E]
Shi/pa Aggarwal v. Avira/ Mittal & Anr. (2010) 1 SCC
591: 2009 (16) SCR 287 - relied on.
2. The best interests and welfare of the child are
E of paramount importance. However, this is the final
goal or the final objective to be achieved - it is not the
beginning of the exercise but the end. For reaching
this final goal or final objective, firstly, it must be
F appreciated that the "most intimate contact" doctrine
and the "closest concern" doctrine are applied. It is not
appropriate that a domestic court having much less
intimate contact with a child and having much less
close concern with a child and his or her parents (as
G against a foreign court in a given case) should take
upon itself the onerous task of determining the best
interests and welfare of the child. A foreign court
having the most intimate contact and the closest
concern with the child would be better equipped and
H perhaps best suited to appreciate the social and
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 905
cultural milieu in which the child has been brought up A
rather than a domestic court. This is a factor that must
be kept in mind. Secondly, the principle of "comity of
courts" should not be jettisoned, except for special and
compelling reasons. This is more so in a case where
only an interim or an interlocutory order has been B
passed by a foreign court. [para 51, 53 and 54] [934-8C; 935-A-F]
Surinder Kaur Sandhu v. Harbax Singh Sandhu (1984)
3 SCC 698: 1984 (3) SCR 422 - relied on.
C
3. The principles for dealing with a foreign
judgment are laid down in Section 13 of the Code of
Civil Procedure. In passing an interim or an
interlocutory order, a foreign court is as capable of o
making a prima facie fair adjudication as any domestic
court and there is no reason to undermine its
competence or capability. If the principle of comity of
courts

## Text

_Characters 0–39,790 of 74,904. This is a partial read: ask again with offset=39790 for what follows._

[2015] 4 S.C.R. 903
SURYA VADANAN
v.
STATE OF TAMIL NADU & ORS.
(Criminal Appeal No. 395 of 2015)
FEBRUARY 27, 2015
[MADAN B. LOKUR AND UDAY UMESH LAUT, JJ.]
Family Law:
903
A
B
Custody and guardianship of foreign children -
C
determination - Whether by the domestic court or foreign
court - When the foreign court is seized of such issue -
Held: In such cases principle of 'best interests and welfare
of the child' and the principle of 'comity of courts' should 0
be applied - While deciding the best interest and welfare
of the child 'most intimate contact' doctrine and the 'closest
concern' with the child would be better equipped and best
suited to appreciate the social and cultural milieu of the
child - While applying the principle of comity of courts, the
E
'first strike' principle would be applicable - Deviation from
the principle of comity of courts should be a/lowed only in
special and compelling circumstances - For repatriation of
the child to the jurisdiction of the foreign court, it is for the
court either to conduct summary or elaborate inquiry F
regarding welfare and best interest of the child - In the
facts of the present case, the order of the foreign court was
passed first in point of time and hence the principle of
comity of courts would tilt the balance in favour of the
foreign court -
The foreign court has the most intimate G
contact and also the closest concern with the children and
their parents - Therefore, it would be in the best interests
and welfare of the children, if the foreign court takes final
903
H
904
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
decision regarding the custody of the children.
Disposing of the appeal, the Court
HELD: 1. The principle of the comity of courts is
8
essentially a principle of self-restraint, applicable when
a foreign court is seized of the issue of the custody of
a child prior to the domestic court. The two principles
namely (i) The principle of comity of courts and (ii) The
principle of the best interests and the welfare of the
C child are referred to "contrasting principles of law" but
they are not 'contrasting' in the sense of one being the
opposite of the other but they are contrasting in the
sense of being different principles that need to be
applied in the facts of a given case. [paras 50 and 52]
D [932-E-F; 934-C-E]
Shi/pa Aggarwal v. Avira/ Mittal & Anr. (2010) 1 SCC
591: 2009 (16) SCR 287 - relied on.
2. The best interests and welfare of the child are
E of paramount importance. However, this is the final
goal or the final objective to be achieved - it is not the
beginning of the exercise but the end. For reaching
this final goal or final objective, firstly, it must be
F appreciated that the "most intimate contact" doctrine
and the "closest concern" doctrine are applied. It is not
appropriate that a domestic court having much less
intimate contact with a child and having much less
close concern with a child and his or her parents (as
G against a foreign court in a given case) should take
upon itself the onerous task of determining the best
interests and welfare of the child. A foreign court
having the most intimate contact and the closest
concern with the child would be better equipped and
H perhaps best suited to appreciate the social and
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 905
cultural milieu in which the child has been brought up A
rather than a domestic court. This is a factor that must
be kept in mind. Secondly, the principle of "comity of
courts" should not be jettisoned, except for special and
compelling reasons. This is more so in a case where
only an interim or an interlocutory order has been B
passed by a foreign court. [para 51, 53 and 54] [934-8C; 935-A-F]
Surinder Kaur Sandhu v. Harbax Singh Sandhu (1984)
3 SCC 698: 1984 (3) SCR 422 - relied on.
C
3. The principles for dealing with a foreign
judgment are laid down in Section 13 of the Code of
Civil Procedure. In passing an interim or an
interlocutory order, a foreign court is as capable of o
making a prima facie fair adjudication as any domestic
court and there is no reason to undermine its
competence or capability. If the principle of comity of
courts is accepted, due respect needs to be given even
to such orders passed by a foreign court. If
an E
interim or an interlocutory order passed by a foreign
court has to be disregarded, there must be some
special reason for doing so. If the foreign court cioes
have jurisdiction, the interim or interlocutory order of
the foreign court should be given due weight and F
respect. If the jurisdiction of the foreign court is not in
doubt, the "first strike" principle would be applicable.
That is to say that due respect and weight must be
given to a substantive order prior in point of time to a
substantive order passed by another court (foreign or G
domestic). [paras 54-56] [935-H; 936-A-D; 937-F-H]
Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479: 2011
(7) SCR 674 - relied on.
H
906
SUPREME COURT REPORTS
[2015) 4 S.C.R.
A
4. A violation of an interim or an interlocutory order
passed by a court of competent jurisdiction ought to
be viewed strictly if the rule of law is to be maintained.
An interim or an interlocutory order is always subject
to modification or vacation by the court that passes
B that interim or interlocutory order. [para 58] [938-F-G;
939-D]
Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479: 2011
(7) SCR 674; Arathi Bandi v. Bandi Jagadrakshaka Rao
c (2013) 15 sec 790 - relied on.
5. However, merely because a parent has violated
an order of a foreign court, does not mean that that
parent should be penalized for it. The conduct of the
o parent may certainly be taken into account for passing
a final order, but that ought not to have a penalizing
result. [para 58] [939-E]
6. In a given case, it might be appropriate to have
E an elaborate inquiry to decide whether a child should
be repatriated to the foreign country and to the
jurisdiction of the foreign court or in a given case to
have a summary inquiry without going into the merits
of the dispute relating to the best interests and welfare
F of the child and repatriating the child to the foreign
country and to the jurisdiction of the foreign court.
However, if there is a pre-existing order of a foreign
court of competent jurisdiction and the domestic court
decides to conduct an elaborate inquiry (as against a
G summary inquiry), it must have special reasons to do
so. An elaborate inquiry should not be ordered as a
matter of course. [para 59-60] [939-F, G; 940-A-B]
6.2 While deciding whether a summary or an
H elaborate inquiry should be conducted, the domestic
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 907
court must take into consideration: {a) The nature and A
effect of the interim or interlocutory order passed by
the foreign court; (b) The existence of special reasons
for repatriating or not repatriating the child to the
jurisdiction of the foreign court; {c) The repatriation of
the child does not cause any moral or physical or B
social or cultural or psychological harm to the child,
nor should it cause any legal harm to the parent with
whom the child is in India. In cases where. there are
chances of arrest of the parent on his/her return to the
foreign country, the domestic court is also obliged to C
ensure the physical safety of the parent. (d) The alacrity
with which the parent moves the concerned foreign
court or the concerned domestic court is also relevant.
If the time gap is unusually large and is not reasonably 0
explainable and the child has developed firm roots in
India, the domestic court may be well advised to
conduct an elaborate inquiry. [para 60] [940-C-G; 941A]
7. The facts in the present appeal reveal that the E
parents as well as their children are citizens of the U.K.;
the children were born and brought up in the U.K. in a
social and cultural milieu different from that of India
and they have grown up in that different milieu, F
different from the education system in India. The mere
fact that the children were admitted to a school in India,
with the consent of the father is not conclusive of his
consent to the permanent or long term residence of the
children in India. [para 61] [941-B-E]
G
8. The mother has not taken any steps to give up
her as well as of her children's foreign citizenship and
to acquire Indian citizenship. That being the position,
the courts in India should encourage her to submit to H
908
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A the jurisdiction of the foreign court which has the most
intimate contact w_ith them and closest concern apart
from being located in the country of their citizenship.
The fact that the mother is of Indian origin cannot be
B
an overwhelming factor. [para 62] [941-G-H; 942-A-B]
9. Since the first effective order or direction was
passed by the foreign court, principle of comity of
courts would tilt the balance in favour of the foreign
court rather than the Family Court in India, even if it is
C assumed that the Family Court was a court of
competent jurisdiction although jurisdiction over the
matter of the custody of the two children of the couple
was questioned since they both are British citizens and
are ordinarily residents of the U.K. [para 64] [942-F-H]
D
10. The orders passed by the foreign court are only
interim and interlocutory and no finality is attached to
them. Nothing prevents the mother from contesting the
correctness of the interim and interlocutory orders and
E to have them vacated or modified or even set aside.
There is also nothing on the record to indicate that any
prejudice will be caused to the children, if they are
taken to the U.K. and subjected to the jurisdiction of
the foreign court. There is nothing to suggest that the
F foreign court is either incompetent or incapable of
taking a reasonable, just and fair decision in the best
interests of the children and entirely for their welfare.
[para 66 and 67] [943-G; 944-B-C, D]
G
11. The foreign court has the most intimate contact
with the mother and her children and also the closest
concern with the well being of the parents and their
children. That being the position even though the
mother did not violate any order of the foreign court
H when she brought her children to India, her continued
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 909
refusal to abide by the interim and interlocutory order A
of the foreign court is not justified and it would be
certainly in the best interests and welfare of the
children if the foreign court, in view of the above, takes
a final decision on the custody of the children at the
earliest. The foreign court undoubtedly has the capacity B
to do so. [para 68] [944-E-G]
12. The facts in the present case do not suggest
that because of their stay in India over the last two
years, the children are not capable of continuing with C
their life in U.K. However, this can more appropriately
be decided by the foreign court after taking all the
factors into consideration. [para 69] [945-C-D]
13. In view of facts of the case and in view of the o
efforts made for settling the dispute amicably by
mediation, there is no reason to hold any elaborate
inquiry. This elaborate inquiry is best left to be
conducted by the foreign court which has the most
intimate contact and the closest concern with the E
children. [para 71] [945-G-H]
14. In view of the fact that it will not be financially
easy for the mother to contest the claim of her husband
for the custody of th'e children, certain directions are F
given in favour of the mother to enable her to present
an effective case before the foreign court. [para 72]
[946-B-C]
Sarita Sharma v. Sushi/ Sharma (2000) 3 SCC 14: G
2000 (1) SCR 915;V. Ravi Chandran v. Union of India
(2010) 1 SCC 174: 2009 (15) SCR 960; Dhanwanti Joshi
v. Madhav Unde (1998) 1 SCC 112: 1997 (5) Suppl. SCR
30;Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC
42: 1987 (1) SCR 175 - referred to.
H
910
A
B
c
D
SUPREME COURT REPORTS
[2015] 4 S.C.R.
Case Law Reference
2000 (1) SCR 915
referred to. Para 22
2009 (16) SCR 287
relied on
Paras 22 and 52
2009 (15) SCR 960
referred to. Para 22
2011 (7) SCR 674
relied on
Paras 22 and 57
(2013) 15 sec 190
relied on
Para 22
1984 (3) SCR 422
relied on
Para 26
1997 (5) Suppl. SCR 30 referred to. Para 26
1987 (1) SCR 175
referred to. Para 26
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 395 of 2015.
From the Judgment and Order dated 04.11.2013 of the
High Court of Judicature at Madras in Habeas Corpus
Petition No. 522 of 2013.
Prabhjit Jauhar, Rosemary Raju, S. S. Jauhar for the
Appellant.
Jayant Bhushan, Surya Senthil, B. Karunakaran, S.
E Gowthaman for the Respondent.
F
The Judgment of the Court was delivered by
MADAN B. LOKUR, J. 1. Leave granted.
2. The question before us relates to the refusal by the
Madras High Court to issue a writ of habeas corpus for
the production of the children of Surya Vadanan and
Mayura Vadanan. The appellant sought their production to
G enable him to take the children with him to the U.K. since
they were wards of the court in the U.K. to enable the
foreign court to decide the issue of their custody.
3. In our opinion, the High Court was in error in
H declining to issue the writ of habeas corpus.
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 911
[MADAN B. LOKUR, J.]
The facts
4. The appellant (hereafter referred to as Surya) and
respondent No.3 (hereafter referred to as Mayura) were
married in Chennai on 27th January, 2000. While both are
A
of Indian origin, Surya is a resident and citizen of U.K. and
B
at the time of marriage Mayura was a resident and citizen
of India.
5. Soon after their marriage Mayura joined her husband
Surya in U.K. sometime in March 2000. Later she acquired c
British citizenship and a British passport sometime in
February 2004. As such, both Surya and Mayura are
British citizens and were ordinarily resident in U.K. Both
were also working for gain in the U.K.
6. On 23'd September, 2004, a girl child Sneha Lakshmi D
Vadanan was born to the couple in U.K. Sneha Lakshmi
is a British citizen by birth.
On 21st September, 2008
another girl child Kamini Lakshmi Vadanan was born to the
couple in U.K. and she too is a British citizen by birth. The
E
elder girl child is now a little over 10 years of age while
the younger girl child is now a little over 6 years of age.
7. It appears that the couple was having some
matrimonial problems and on 13th August, 2012 Mayura left F
U.K. and came to India along with her two daugnters.
Before leaving, she had purchased return tickets for h1erself
and her two daughters for 2nd September, 2012. She says
that the round-trip tickets were cheaper than one-way
tickets and that is why she had purchased them. According G
to Surya, the reason for the purchase of round-trip tickets
was that the children's schools were reopening on 5th
September, 2012 and she had intended to return to U.K.
before the school reopening date.
8. Be that as it may, on her arrival in India, Mayura H
912
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A and her daughters went to her parents house in Coimbatore
(Tamil Nadu) and have been staying there ever since.
9. On 21st August, 2012 Mayura prepared and signed
a petition under Section 13(1 )(i-a) of the Hindu Marriage
B Act, 19551 seeking a divorce from Surya. The petition was
filed in the Family Court in Coimbatore on 23'd August,
2012. We are told that an application for the custody of
the two daughters was also filed by Mayura but no orders
seem to have been passed on that application one way or
C the other.
10. On or about 23'd August, 2012 Surya came to know
that Mayura was intending to stay on in India along with
their two daughters. Therefore, he came to Coimbatore on
o or about 27th August, 2012 with a view to amicably resolve
all differences with Mayura. Interestingly while in
Coimbatore, Surya lived in the same house as Mayura and
their two daughters, that is, with Surya's in-laws. According
to Surya, he was unaware that Mayura had already filed a
E petition to divorce him.
1 13. Divorce.-(1) Any marriage solemnized, whether before or after the
commencement of this Act, may, on a petition presented by either the
F
husband or the wife, be dissolved by a decree of divorce on the ground that
the other party-
(1) has, after the solemnization of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse; or
G
(i-a) has, after the solemnization of the marriage, treated the petitioner with
cruelty; or
(i-b) ha,:i deserted the petitioner for a continuous period of not less than two
.years immediately preceding the presentation of the petition; or
H
[rest of the provision is not relevant]
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 913
[MADAN B. LOKUR, J.]
11. Since it appeared that the two daughters of the A
couple were not likely to return to U.K. in the immediate
future and perhaps with a view that their education should
not be disrupted, the children were admitted to a school in
Coimbatore with Surya's consent.
12. Since Surya and Mayura were unable to amicably
(or otherwise) resolve their differences, Surya returned to
U.K. on or about 5th September, 2012. About a month later,
B
on 16th October, 2012 he received a summons dated 5th
October, 2012 from the Family Court in Coimbatore in the C
divorce petition filed by Mayura requiring him to enter
appearance and present his case on 29th October, 2012.
We are told that the divorce proceedings are still pending
in the Family Court in Coimbatore and no substantial or
effective orders have been passed therein.
D
Proceedings in the U.K.
13. Faced with this situation, Surya also seems to have
decided to initiate legal action and on 81h November, 2012 E
he petitioned the High Court of Justice in U.K. (hereinafter
referred to as 'the foreign court') for making the children
as wards of the court. It seems that along with this petition,
he also annexed documents to indicate (i) that he had paid
the fees of the children for a private school in U.K. with
F
the intention that the children would continue their studies
in U.K. (ii) that the children had left the school without
information that perhaps they would not be returning to
continue their studies.
G
14. On 131h November, 2012 the High Court of Justice
passed an order making the children wards of the court'
"during their minority or until such time as this provision of
this order is varied or alternatively discharged by the further
order of the court" and requiring Mayura to return the H
914
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A children to the jurisdiction of the foreign court. The relevant
extract of the order passed by the foreign court on 131h
November, 2012 reads as under:--
"IT IS ORDERED THAT:
B
1. The children SNEHA LAKSHMI VADANAN AND KAMINI
c
D
LAKSHMI VADANAN shall be and remain wards of this
Honourable Court during their minority or until such time
as this provision of this order is varied or alternatively
discharged by the further order of the court_
2. The Respondent mother shall :
a.
By no later than 4 p.m. on 201h November 2012 inform
the father, through his solicitors (Messrs Dawson
Cornwell, 15 Red Lion Square, London, WC1R4QT. Tel:
0207 242 2556 Ref: SJ/AMH), of the current care
arrangements for the children;
b. By no later than 4 p.m. on 201h November 2012 inform
the father, through his said solicitors, of ·the
E
arrangements that will be made for the children's return
pursuant to paragraph 2(c) herein;
c.
Return the children to the jurisdiction of England and
Wales by no later than 11.59 p.m. on 271h November
F
2012;
G
H
d. Attend at the hearing listed pursuant to paragraph 3
herein, together with solicitors and/or counsel if so
instructed.
A penal notice is attached to this paragraph.
3. The matter shall be adjourned and relisted for further
directions or alternatively determination before a High
Court Judge of the Family Division sitting in chambers
at the Royal Court of Justice, Strand, London on 291h
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 915
[MADAN B. LOKUR, J.]
November 2012 at 2 p.m. with a time estimate of 30
A
minutes.
4. The mother shall have leave, if so advised, to file and
serve a statement in response to the statement of the
Applicant father. Such statement to be filed and served
by no later than 12 noon on 29'h November 2012.
5.
Immediately upon her and the children's return to the
jurisdiction of England and Wales the mother shall lodge
her and the children's passports and any other travel
documents with the Tipstaff (Tipstaff's Office, Royal
Courts of Justice, Strand, London) to be held by him to
the order of the court.
6.
The solicitors for the Applicant shall have permission to
serve these proceedings, together with this order, upon
the Respondent mother outside of the jurisdiction of
England and Wales, by facsimile or alternatively
scanned and e-mailed copy if necessary.
7.
The Applicant father shall have leave to disclose this
order to:
a. The Foreign and Commonwealth Office;
b. The British High Commission, New Delhi;
c. The Indian High Commission, London
d. Into any proceedings as the mother may have issued of
India, including any divorce proceedings.
8.
Costs reserved.
AND THIS HON'BLE COURT RESPECTFULLY REQUESTS
THAT the administrative authorities of the British
Government operating in the jurisdiction of India and the
B
c
D
E
F
G
H
916
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
judicial and administrative authorities of India, including
the Indian High Commission in England, assist in any
way within their power and control in ascertaining the
current whereabouts of the children herein, who have
been made wards of court, and in assisting in
B
repatriating them to England and Wales, the country of
their habitual residence."
15. In response to the petition filed by Surya, a written
statement was filed by Mayura on 20th November, 2012.
C A rejoinder was filed by Surya on 13th December, 2012.
16. Apparently, after taking into consideration the
written statement, the foreign court passed another order
on 29th November, 2012 virtually repeating its earlier order
o and renewing its request to the administrative authorities
of the British Government in India and the judicial and
administrative authorities in India for assistance for
repatriation of the wards of the court to England and Wales,
the country of their habitual residence. The relevant extract
E of the order dated 29th November, 2012 reads as under:-
F
G
H
"IT IS ORDERED THAT :
1. The children SNEHA LAKSHMI VADANAN AND KAMIN!
VADANAN shall be and remain wards of this Hon'ble
Court during their minority and until such time as this
provision of this Order is varied or alternatively
discharged by the further Order of the Court.
2. The 1st Respondent mother, 2"d Respondent maternal
Grandfather and 3'd Respondent maternal Grandmother
shall:
a. Forthwith upon serve of this Order upon them inform the
father, through his said solicitors, of the arrangements
that will be made for the children's return pursuant to
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 917
[MADAN B. LOKUR, J.]
paragraph 2(c) herein; 2
A
b.
Return the children to the jurisdiction of England and
Wales forthwith upon service of this Order upon them;
A penal notice is attached to this paragraph.
B
3. The matter shall be adjourned and relisted for further
directions or alternatively determination before a High
Court Judge of the Family Division sitting in chambers
at the Royal Court of Justice, Strand, London within 72 c
hours of the return of the children or alternatively upon
application to the Court for a further hearing.
4. The father shall have leave, if so advised, to file and
serve a statement of the mother. Such statement to
be filed and served by no later than 12 noon on 13th D
December 2012.
5.
Immediately upon her and the children's return to the
jurisdiction of England and Wales the mother shall lodge
her and the children's passports and any other travel E
documents with the Tipstaff (Tipstaff's Office, Royal
Courts of Justice, Strand, London) to be held by him to
the Order of the Court.
6. The solicitors for the Applicant shall have permission to
F
serve these proceedings, together with this Order, upon
the Respondent mother outside of the jurisdiction of
England and Wales, by facsimile or alternatively
scanned and e-mailed copy if necessary.
G
7. The Applicant father shall have leave to disclose this
order to:
2 There is no paragraph 2(c) in the text of the order supplied to this court.
H
918
A
B
c
D
SUPREME COURT REPORTS
[2015] 4 S.C.R.
a. The Foreign and Commonwealth Office;
b. The British High Commission, New Delhi;
c.
The Indian High Commission, London;
d. Into any proceedings as the mother may have issued in
the jurisdiction of India, including any divorce
proceedings.
8. The maternal grandparents Dr. Srinivasan Muralidharan
and Mrs. Rajkumari Murlidharan shall be joined as
Respondents to this application as the 2nd and 3rd
Respondents respectively.
9. The mother shall make the children available for skype
or alternatively telephone contact each Sunday and each
Wednesday at 5.30 p.m. Indian time.
10. Liberty to the 1 •1 Respondent mother, 2nd Respondent
maternal Grandfather and 3rd Respondent maternal
E
grandmother to apply to vary and/or discharge this order
(or any part of it) upon reasonable notice to the Court
and to the solicitors for the father.
11. Costs reserved.
F
AND THIS HON'BLE COURT RESPECTFULLY REQUESTS
G
H
THAT the administrative authorities of the British
Government operating in the jurisdiction of India and the
judicial and administrative authorities of India, including
the Indian High Commission in England, assist in any
way within their power and control in ascertaining the
current whereabouts of the children herein, who have
been made wards of court, and in assisting in
repatriating them to England and Wales, the country of
their habitual residence."
SURYA VADANAN v. STATE OF TAMiL NADU & ORS. 919
[MADAN B. LOKUR, J.]
17. We are told that no further effective or substantial A
orders have been passed by the foreign court thereafter.
Proceedings in the High Court
18. Since Mayura was not complying with the orders 8
passed by the foreign court, Surya filed a writ petition in
the Madras High Court in February 2013 (being HCP
No.522 of 2013) for a writ of habeas corpus on the ground,
inter a/ia, that Mayura had illegal custody of the two
daughters of the couple that is Sneha Lakshmi Vadanan c
and Kamini Lakshmi Vadanan and that they may be
produced in court and appropriate orders may be passed
thereafter.
19. After completion of pleadings, the petition filed by 0
Surya was heard by the Madras High Court and by a
judgment and order dated 4th November, 2013 the writ
petition was effectively dismissed.
20. The Madras High Court, in its decision, took the
view that the welfare of the children (and not the legal right E
of either of the parties) was of paramount importance. On
facts, the High Court was of opinion that since the children
were in the custody of Mayura and she was their legal
guardian, it could not be said that the custody was illegal
F
in any manner. It was also noted that Surya was permitted
to take custody of the children every Friday, Saturday and
Sunday during the pendency of the proceedings in the
Madras High Court; that the order passed by the foreign
court had been duly complied with and that Surya had also G
returned to the U.K. On these facts and in view of the law,
the Madras High Court "closed" the petition filed by Surya
seeking a writ of habeas corpus.
21. Feeling aggrieved, Surya has preferred the present H
920
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A appeal on or about 9th April, 2014.
Important decisions of this court
22. There are five comparatively recent and significant
8 judgments delivered by this court on the issue of child
custody where a foreign country or foreign court is
concerned on the one hand and India or an Indian court
(or domestic court) is concerned on the other. These
decisions are: (1) Sarita Sharma v. Sushi/ Sharma3, (2)
c Shi/pa Aggarwal v. Aviral Mittal & Anr. 4 , (3) V. Ravi
Chandran v. Union of lndia5, (4) Ruchi Majoo v. Sanjeev
Majoo6 , and (5) Arathi Bandi v. Bandi Jagadrakshaka
Rao.7 These decisions were extensively read out to us and
we propose to deal with them in seriatim.
D
( 1) Sarita Sharma v. Sushi/ Sharma
23. As a result of matrimonial differences between
Sarita Sharma and her husband Sushil Sharma an order
was passed by a District Court in Texas, USA regarding
E the care and custody of their children (both American
citizens) and their respective visiting rights. A subsequent
order placed the children in the care of Sushil Sharma and
only visiting rights were given to Sarita Sharma. Without
F informing the foreign court, Sarita Sharma brought the
children to India on or about T
11 May, 1997.
24. Subsequently on 121h June, 1997 Sushi! Sharma
3 (2000) 3 sec 14
G 4 (201 OJ 1 sec 591
5 (2010) 1 sec 174
6 (2011) 6 sec 479
H
7 (2013) 15 sec 790
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 921
[MADAN B. LOKUR, J.]
obtained a divorce decree from the foreign court and also A
an order that the sole custody of the children shall be with
him. Armed with· this, he moved the Delhi High Court on
9th September, 1997 for a writ of habeas corpus seeking
custody of the children. The High Court allowed the writ
petition and ordered that the passports of the children be B
handed over to Sushi! Sharma and it was declared that he
could take the children to USA without any hindrance.
Feeling aggrieved, Sarita Sharma preferred an appeal in
this court.
c
25. This court noted that Sushi! Sharma was an
alcoholic and had used violence against Sarita Sharma. It
also noted that Sarita Sharma's conduct was not "very
satisfactory" but that before she came to India, she was in
lawful custody of the children but "she had committed a D
breach of the order of the American Court directing her not
to remove the children from the jurisdiction of that Court
without its permission."
26. This court noted the following principles regarding
E
custody of the minor children of the couple:
(1) The modern theory of the conflict of laws
recognizes or at least prefers the jurisdiction of the State
which has the most intimate contact with the issues arising
F
in the case. 8
(2) Even though Section 6 of the Hindu Minority and
Guardianship Act, 1956 constitutes the father as the natural
guardian of a minor son, that provision cannot supersede G
the paramount consideration as to what is conducive to the
welfare of the minor. 9
8 Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698
9 Sur inder Kaur Sandhu v. Harbax Singh Sandhu
H
922
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
(3) The domestic court will consider the welfare of the
B
c
D
child as of paramount importance and the order of a foreign
court is only a factor to be taken into consideration. 10
On the merits of the case, this Court observed:
"Considering all the aspects relating to the welfare of
the children, we are of the opinion that in spite of the
order passed by the Court in U.S.A. it was not .proper
for the High Court to have allowed the habeas corpus
writ petition and directed the appellant to hand over
custody of the children to the respondent and permit
him to take them away to U.S.A. What would be in
the interest of the children requires a full and thorough
inquiry and, therefore, the High Court should have
directed the respondent to initiate appropriate
proceedings in which such an inquiry can be held."
27. Notwithstanding this, neither was the matter
remanded to the High Court for issuing such a direction to
E Sushil Sharma to approach the appropriate court for
conducting a "full and thorough" inquiry nor was such a
direction issued by this court. The order of the Delhi High
Court was simply set aside and the writ petition filed by
Sushil Sharma was dismissed.
F
28. We may note that significantly, this court did not
make any reference at all to the principle of comity of courts
nor give any importance (apart from its mention) to the
passage quoted from Surinder Kaur Sandhu to the effect
G that:
"The modern theory of Conflict of Laws recognizes·
10 Dhanwanti Joshi v. Madha11 Unde, (1998) 1 SCC 112 which in turn referred
H
to McKee 11. McKee,
1951 AC 352: (1951) 1 All ER 942 (PC)
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 923
[MADAN 8. LOKUR, J.]
and, in any event, prefers the jurisdiction of the State A
which has the most intimate contact with the issues
arising in the case. Jurisdiction is not attracted by the
operation or creation of fortuitous circumstances such
as the circumstance as to where the child, whose
custody is in issue, is brought or for the time being B
lodged. To allow the assumption of jurisdiction by
another State in such circumstances will only result
in encouraging forum-shopping. Ordinarily, jurisdiction
must follow upon functional lines. That is to say, for
example, that in matters relating to matrimony and C
custody, the law of that place must govern which has
the closest concern with the well-being of the spouses
and the welfare of the offsprings of marriage."
(2) Shi/pa Aggarwal v. Aviral Mittal & Anr.
D
29. Shilpa Aggarwal and her husband Aviral Mittal were
both British citizens of Indian origin. They had a minor child
(also a foreign national) from their marriage. They had
matrimonial differences and as a result, Shilpa Aggarwal
E
c;.ame to India from the U.K. with their minor child. She
was expected to return to the U.K. but cancelled their return
tickets and chose to stay on in India. Aviral Mittal thereupon
initiated proceedings before the High Court of Justice,
Family Division, U.K. and on 261h November, 2008 the F
foreign court directed Shilpa Aggarwal, inter alia, to return
the minor child to the jurisdiction of that foreign court.
Incidentally, the order passed by the foreign court is
strikingly similar to the order passed by the foreign court
subject matter of the present appeal.
G
30. Soon thereafter, Shilpa Aggarwal's father filed a writ
petition in the Delhi High Court seeking protection of the
child and for a direction that the custody of the child be
handed over to him. The High Court effectively dismissed H
924
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A the writ pe1ition and granted time to Shilpa Aggarwal to take
the child on her own to the U.K. and participate in the
proceedings in the foreign court failing which the child be
handed over to Aviral Mittal to be taken to the U.K. as a
measure of interim custody, leaving it for the foreign court
B to determine which parent would be best suited to have
the custody of the child.
31. Feeling aggrieved, Shilpa Aggarwal preferred an
appeal before this court which noted and observed that the
C following principles were applicable for deciding a case of
this nature:
D
E
(1) There are two contrasting principles of law, namely,
comity of courts and welfare of the child.
(2) In matters of custody of minor children, the sole and
predominant criterion is the interest and welfare of
the minor child. 11 Domestic courts cannot be guided
entirely by the fact that one of the parents violated
an order passed by a foreign court. 12
32. On these facts and applying the principles
mentioned above, this court agreed with the view of the
High Court that the order dated 26111 November, 2008
F passed by the foreign court did not intend to separate the
child from Shilpa Aggarwal until a final decision was taken
with regard to the custody of the child. The child was a
foreign national; both parents had worked for gain in the
U.K. and both had acquired permanent resident status in
G the U.K. Since the foreign court had the most intimate
11 Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42. Even though
this CO.fH! used the word " sole" , it is clear that it did not reject or intend to
reject the principle of comity of courts.
•.
H · 12 Sarita Shan~a v. Sushi! Sharma
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 925
[MADAN B. LOKUR, J.]
contact13 with the child and the parents, the principle of A
"comity of courts" required that the foreign court would be
the most appropriate court to decide which parent would
be best suited to have custody of the child.
(3) \I. Ravi Chandran v. Union of India
33. The mother (Vijayasree Voora) had removed her
minor child (a foreign national) from the U.S.A. in violation
B
of a custody order dated 181h June, 2007 passed by the
Family Court of the State of New York. The custody order c
was passed with her consent and with the consent of the
child's father (Ravi Chandran, also a foreign national).
34. On 81h August, 2007, Ravi Chandran applied for
modification of the custody order and was granted, the 0
same day, temporary sole legal and physical custody of the
minor child and Vijayasree Voora was directed to
immediately turn over the minor child and his passport to
Ravi Chandran and further, her custodial time with the child
was suspended. The foreign court also ordered that the E
issue of custody of the child shall be heard by the
jurisdictional Family Court in the USA.
35. On these broad facts, Ravi Chandran moved a
petition for a writ of habeas corpus in this court for the
F
production of the child and for his custody. The child was
produced in this court and the question for consideration
was: "What should be the order in the facts and
circumstances keeping in mind the interest of the child and
the orders of the courts of the country of which the child is G
a national."
36. This court referred to a large number of decisions
13 Surinder Kaur Sandhu v. Harbax Singh Sandhu
H
926
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A and accepted the following observations, conclusions and
principles:
B
c
D
E
F
(1) The comity of nations does not require a court to
blindly follow an order made by a foreign court. 14
(2) Due weight should be given to the views formed
by the courts of a foreign country of which the child
is a national. The comity of courts demands not the
enforcement of an order of a foreign court but its
grave consideration. 15 The weight and persuasive
effect of .a foreign judgment must depend on the
facts and circumstances of each case. 16
(3) The welfare of the child is the first and paramount
consideration, 17 whatever orders may have been
passed by the foreign court. 18
(4) The domestic court is bound to consider what is in
the best interests of the child. Although the order of
a foreign court will be attended to as one of the
circumstances to be taken into account, it is not
conclusive, one way or the other.19
(5) One of the considerations that a domestic court
must keep in mind is that there is no danger to the
14 B's Settlement, In re. B. v. B., 1940 Ch 54: (1951) 1 All ER 949 and McKee
v. McKee
15 McKee v. McKee
G
16 McKee v. McKee
17 McKee v. McKee
18 B's Settlement, In re
19 Kernot v. Kernot, 1965 Ch 217: (1964) 3 WLR 1210: (1964) 3 All ER 339
H
SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 927
[MADAN B. LOKUR, J.]
moral or physical health of the child in repatriating A
him or her to the jurisdiction of the foreign country. 20
(6) While considering whether a child should be
removed to the jurisdiction of the foreign court or not,
the domestic court may either conduct a summary B
inquiry or an elaborate inquiry in this regard. In the
event the domestic court conducts a summary
inquiry, it would return the custody of the child to the
country from which the child was removed unless
such return could be shown to be harmful to the C
child. In the event the domestic court conducts an
elaborate inquiry, the court could go into the merits
as to where the permanent welfare of the child lay
and ignore the order of the foreign court or treat the
fact of removal of the child from another country as D
only one of the circumstances.