Civil Appeal No.2291 of 2018

20th February, 2018.

Petitioner Counsel: Ms. MALAVIKA RAJKOTIA, Ms. RYTIM VOHRA, Ms. ARPITA RAI, Ms. UDITA SINGH, Mr. VIVEK SINGH, Mr. LAKSHMI RAMAN SINGH
Respondent Counsel: Mr. ANIL MALHOTRA, Mr. RANJIT MALHOTRA, Mr. SARVESH SINGH, Mr. RAJAT BHALLA

Cases Cited:
Surya Vadanan Vs. State of Tamil Nadu, 2015 ALL SCR 1257=(2015) 5 SCC 450 [Para 3]
Dr. V. Ravi Chandaran Vs. Union of India and Others, 2009 ALL MR (Cri) 3092 (S.C.)=(2010) 1 SCC 174 [Para 3]
Dhanwanti Joshi Vs. Madhav Unde, (1998) 1 SCC 112 [Para 3]
Surinder Kaur Vs. Harbax Singh Sandhu, (1984) 3 SCC 698 [Para 3]
Ruchi Majoo Vs. Sanjeev Majoo, 2011(3) ALL MR 991 (S.C.)=(2011) 6 SCC 479 [Para 3]
Nithya Anand Raghavan Vs. State of NCT, 2017 ALL SCR (Cri) 1686=(2017) 8 SCC 454 [Para 3]

JUDGMENT

JUDGMNET :- Leave granted. We have heard learned counsel for the parties and perused the record.

2. The appellant filed a Guardianship Petition which was rejected by the Family Court under Order VII Rule 11 of the Code of Civil Procedure on the ground that the parties are nationals of the United States of America and the U.S. courts have intimate contact with the matter. It was observed the marriage between the parties took place in U.S.A. Out of the wedlock, one child was born in 2012 in U.S.A. and the second child was born in India. The appellant came to India, just before the delivery of the said child. The High Court has affirmed the said order.

3. We have gone through the judgments of this Court in Surya Vadanan v. State of Tamil Nadu, (2015) 5 SCC 450 : [2015 ALL SCR 1257], Dr. V. Ravi Chandaran v. Union of India and Others, (2010) 1 SCC 174 : [2009 ALL MR (Cri) 3092 (S.C.)], Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, Surinder Kaur v. Harbax Singh Sandhu, (1984) 3 SCC 698, Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 : [2011(3) ALL MR 991 (S.C.)]. These judgments were considered by this Court in a recent Three-Judge Bench Judgment in Nithya Anand Raghavan v. State of NCT, (2017) 8 SCC 454 : [2017 ALL SCR (Cri) 1686] and it was observed :

"39. We must remind ourselves of the settled legal position that the concept of forum convenience has no place in wardship jurisdiction. Further, the efficacy of the principle of comity of courts as applicable to India in respect of child custody matters has been succinctly delineated in several decisions of this Court. ...

66. The invocation of first strike principle as a decisive factor, in our opinion, would undermine and whittle down the wholesome principle of the duty of the Court having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance. If the Court is convinced in that regard, the fact that there is already an order passed by a foreign Court in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration. The interests and welfare of the child are of paramount consideration. The principle of comity of courts as observed in Dhanwanti Joshi case [1998(1) SCC 112], in relation to non-convention countries is that the Court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration. While considering that aspect, the Court may reckon the fact that the child was abducted from his or her country of habitual residence but the Court's overriding consideration must be the child's welfare."

4. In view of above, principle of comity of courts or principle of forum convenience alone cannot determine the threshold bar of jurisdiction. Paramount consideration is the best interest of child. The same cannot be subject-matter of final determination in proceedings under Order VII Rule 11 of the C.P.C.

5. Accordingly, we set aside the impugned order. The application under Order VII Rule 11 is dismissed.

6. Since it is pointed out that the proceedings on the same subject-matter are also pending before the High Court, the trial court may wait for the decision of the High Court before proceeding further.

7. We make it clear that we have not expressed any opinion on the merits of the case and the Family Court may now decide the matter expeditiously and as far as possible within six months from today.

8. The parties are directed to appear before the Family Court for further proceedings on Saturday, the 24th February, 2018.

9. In view of above, the appeal is disposed of.

Appeal allowed.