Comity of Courts – Jurisdiction Issue in Child Custody

Recent judgment delivered by Justice T.S. Thakur, on behalf of himself and Justice V.S. Sirpukar of Supreme Court in Ruchi Majoo v. Sanjeev Majoo CRIMINAL APPEAL NO. 1184 OF 2011 stated that the jurisdiction of a court is not barred in cases involving child custody and removal of the by a parent from a foreign country to India in contravention of the orders of the court where the parties had set up their matrimonial home. While dealing with the case, the actual residence of the child was taken into consideration. This decision is quite important when we talk about the applicability of the decree of a foreign court in an Indian Court. Just because some cases have been decided, or are pending before a foreign court would not be sufficient for Indian courts to shut out their jurisdiction power. The take of the Supreme Court in this case is that “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 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 consideration that would go into the making of a final decision.”

But, it is also the duty of an Indian court to respect the judicial decisions of another country on the same subject matter. It would wholly depend on the facts and circumstances of each case, in determining the importance of a foreign decree. The principle is known as “Comity of Nations” from where the principle of “Comity of Courts” has been derived. According to Black’s Law Dictionary “Judicial Comity”, which can also be understood as “Comity of Courts”, as the principle in accordance with which the courts of one state or jurisdiction will give effect to the laws and decisions of another, not as a matter of obligation, but out of deference and respect. But, it is even more important to know when and where these foreign decrees would get preference while deciding the case having “Child custody” as its subject matter.

In the present case, Savjeev Majoo was the respondent in the appeal filed by his wife Ruchi Majoo. It has been alleged by the respondent that his wife had abducted their child, and had been residing in India without his consent. Moreover, it has been alleged by him that he was able to acquire a decree from the Superior court of California, County of Ventura to return their child to him. Both of them are the residents of India and Ruchi, the appellant in the present case, had been living in America in their matrimonial home. In the meanwhile, Ruchi returned to India during vacations but didn’t go back to America. It has been alleged by the appellant that she was able to receive the consent of Sanjeev for exploring career options in Dental medicine at New Delhi. And they had also decided to get their son, whose custody is in dispute, admitted in a good school of New Delhi. On contrary, it has been alleged by Sanjeev that his consent was taken under coercion. An interim order was obtained by Ruchi from an Addl. District Court of New Delhi for the custody of their son, and it was decreed accordingly. But, this decree was quashed by the High Court of Delhi on the ground that the matter was not in the Delhi’s court jurisdiction. The legal point which has been resolved by the Supreme Court in this case was whether the matter was under Delhi’s Jurisdiction or not. Section 9(1) of the Guardians and Wards Act, 1890, states that if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having Jurisdiction in the place where the minor ordinarily resides. This section is the legal point relied upon by the appellant while demanding the child custody.

The meaning of the word “ordinary residence” is the most important point in child custody cases related to the jurisdiction of the court, which was considered by the Supreme Court. It would depend on the circumstances and facts of each case. In was held by the court that the question is not so much where the person is to be found "ordinarily", in the sense of usually or habitually and with some degree of continuity, but whether the quality of residence is "ordinary" and general, rather than merely for some special or limited purpose. In the present case, Kush, the only child of the parties and also the subject matter of the dispute had been residing in Delhi for more than 3 years and it has been held by the court that it would not be difficult for them to come to the conclusion that the house in Delhi, where Kush had been living with his mother and grandparents, has become his “ordinary residence”. Moreover, his ordinary residence was changed with the mutual consent of the parties and that cannot be disputed which was supported by a series of documents present in the case.

Regarding the point of jurisdiction, the court was of the opinion that matter was under the jurisdiction of Delhi’s Ward Court, and stated that Delhi High Court was wrong in considering the matter out of the jurisdiction of that court. Foreign Decrees are to be respected, but that doesn’t mean court will lose its jurisdiction because of this. Court discussed the case of Dhanwanti Joshi v. Madhav Unde 1998(1) SCC 112 where it has been held by the supreme court that it was the duty of the Courts in the country to which a child is removed to consider the question of custody, having regard to the welfare of the child. In doing so, the order passed by the foreign court would yield to the welfare of the child and that Comity of Courts simply demanded consideration of any such order issued by foreign courts and not necessarily their enforcement. This means that enforcement of a foreign decree is not necessary, and mere consideration by the Indian courts would suffice. Court also referred the case of V. Ravi Chandran (Dr.) (2) v. Union of India and Ors. (2010) 1 SCC 174 where it has been held by this court that an elaborate enquiry was considered appropriate, the order passed by a foreign courtmay be given due weight depending upon the circumstances of each case in which such an order had been passed. It can be concluded that the place where an elaborate enquiry could be done also plays an important role in deciding as to which court has the jurisdiction of the matter. The court in this case was also of the view that had the child been removed from America after the decree of the County court, situation would have been different and the case would have gone in favour of child’s father. But child’s father, respondent, was not able to do so. Instead he exchanged a series of email with the appellant regarding certain matters relating to the education of the child and respondent’s property. It was said by the court that 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 the foreign judgment, if any, only as an input for its final adjudication. The interest of the child could only be considered by the court located at New Delhi after taking into consideration all the important factors. Court even asked the Child about this matter, and he replied positively stating that he was happy in his present residence and does not want to go with his father. And, he also mentioned the cruelty on his mother and also about the second marriage of his father. Taking into account all these facts, Supreme Court was of the opinion that welfare of the child should the most important factor, and Delhi Court was competent to decree the matter under its jurisdiction.

Although, court allowed father of the child i.e. Sanjeev, the respondent, to meet his child in during the period specified by the court applying the principle of visitation. Court stated that it is important that the minor has his father's care and guidance, at this formative and impressionable stage of his life. Nor can the role of the father in his upbringing and grooming to face the realities of life be undermined. It is in that view important for the child's healthy growth that we grant to the father visitation rights; that will enable the two to stay in touch and share moments of joy, learning and happiness with each other.

This decision might have been criticised by certain organisations like Children's Rights Initiative for Shared Parenting (CRISP), a Bangalore-based NGO stating that in cases like this, one parent is always deprived of the child custody, and it is father in most of the cases. But, it should also be seen that the welfare of the child is paramount and the place where he can get the best nourishment would always be suitable for him. And, in the present case, it was his mother's place where he would be able to develop himself. It has also been argued by CRISP that the only solution to the matter pertaining to Private International Law is the adoption of Hague Convention on International Child Abduction by India.

The matter was decided by the Supreme Court on 13^th May, 2011.

The view on Matrimonial Disputes was posted by me on another blog under the title "Matrimonial Disputes in Current Indian Scenario"