Section 16 of the Code of Civil Procedure, 1908: An Overview

Section 16 of the Code of Civil Procedure, 1908 (“Code”) provides that suits relating to immovable property shall be instituted in the Court within the local limits of whose jurisdiction the property is situated. However, there is also a proviso which provides that where relief (respecting, or compensation for wrong to, immovable property) can be ‘entirely obtained’ through defendant’s personal obedience, suit can be instituted in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain (The underlined part can also be found in clause (a) and (b) of section 20 of the Code). Explaining the scope of section 16, the Supreme Court of India (“Supreme Court”), in Harshad Chiman Lal Modi v. DLF Universal Ltd.,[1] opined that:

“16. Section 16 thus recognises a well-established principle that actions against res or property should be brought in the forum where such res is situate. A court within whose territorial jurisdiction the property is not situate has no power to deal with and decide the rights or interests in such property. In other words, a court has no jurisdiction over a dispute in which it cannot give an effective judgment. The proviso to Section 16, no doubt, states that though the court cannot, in case of immovable property situate beyond jurisdiction, grant a relief in rem still it can entertain a suit where relief sought can be obtained through the personal obedience of the defendant. The proviso is based on a well-known maxim “equity acts in personam”, recognised by the Chancery Courts in England. The Equity Courts had jurisdiction to entertain certain suits respecting immovable properties situated abroad through personal obedience of the defendant. The principle on which the maxim was based was that the courts could grant relief in suits respecting immovable property situate abroad by enforcing their judgments by process in personam i.e. by arrest of the defendant or by attachment of his property.”

Where the main part of section 16 is applicable, section 20 of the Code would have no application in view of the opening words in section 20 “subject to the limitations thereof”.[2] Where a suit is filed for recovery of immovable properties or determination of any right or for interest in immovable properties, only the Court within whose local limits the properties are situated shall have the jurisdiction.[3] In other words, the language of section 16 is very wide and all cases, in which prayer for declaration of any right or interest in immovable property is made or its sale is asked for, must be filed in the Court which has territorial jurisdiction over such immovable property.[4]

Institution of a suit under Section 20, Code of Civil Procedure, 1908

Section 20 of the Code of Civil Procedure, 1908 (“CPC”) provides that a Court, under certain circumstances, can entertain a suit. It primarily focuses on the location of defendant and cause of action. Section 20 has been designed to secure that justice might be brought as near as possible to every man's hearthstone and that the defendant should not be put to the trouble and expense of travelling long distances in order to defend himself.[1]In other words, the principle behind the provisions of clauses (a) and (b) of Section 20 is that the suit be instituted at a place where the defendant is able to defend the suit without undue trouble.[2]

Phrase “cause of action” means every fact, which, if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court.[3]That is, it means the bundle of facts which gives rise to a right or liability.[4] The elements of a cause of action are: first, the breach of duty owing by one person to another and; second, the damage resulting to the other from the breach, or the fact or combination of facts which gives rise to a right to sue.[5]

The expression “voluntarily resides”, as provided in clause (a) and (b) of Section 20, necessarily refers to natural persons and not to legal entities. Further, the expressions “carries on business” or “personally works for gain” do not refer to functions carried on by the Union of India is discharge of its executive powers conferred by Article 298 of the Constitution.[6]The Code of Civil Procedure uses the expression “corporation” as meaning a legal person and includes a company registered under the Indian Companies Act, and there is nothing in the CPC which can show that a corporation referred to under Order 20 means only a statutory corporation and not a company registered under the Indian Companies Act.[7]

Application of doctrine of dominus litus is confined only to the cause of action which would fall within Sections 15 to 18 of the Code of Civil Procedure, and it cannot be applied where Section 20 of CPC is sought to be invoked.[8]

Moving further, the Explanation to Section 20 is actually an explanation to clause (a). It is in the nature of a clarification on the scope of clause (a) viz. as to where the corporation can be said to carry on business.[9]Focusing on the interpretation of explanation to Section 20, Supreme Court, in New Moga Transport Co. v. United India Insurance Co. Ltd.,[10] held that:

                                  “On a plain reading of the Explanation to Section 20 CPC it is clear that the Explanation consists of two parts: (i) before the word “or” appearing between the words “office in India” and the words “in respect of”, and (ii) the other thereafter. The Explanation applies to a defendant which is a corporation, which term would include even a company. The first part of the Explanation applies only to such corporation which has its sole or principal office at a particular place. In that event, the court within whose jurisdiction the sole or principal office of the company is situate will also have jurisdiction inasmuch as even if the defendant may not actually be carrying on business at that place, it will be deemed to carry on business at that place because of the fiction created by the Explanation. The latter part of the Explanation takes care of a case where the defendant does not have a sole office but has a principal office at one place and has also a subordinate office at another place. The expression “at such place” appearing in the Explanation and the word “or” which is disjunctive clearly suggest that if the case falls within the latter part of the Explanation it is not the court within whose jurisdiction the principal office of the defendant is situate but the court within whose jurisdiction it has a subordinate office which alone has the jurisdiction “in respect of any cause of action arising at any place where it has also a subordinate office”.”

The section only tries to lay down certain principles for the institution of suit. This is to ensure that one does not misuse the judicial system for harassing a defendant. Interestingly, the decisions of the Supreme Court rendered on interpretation of Section 20(c) CPC shall apply to the writ proceedings also.[11]From above, one can get a brief overview of the important elements of Section 20.

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[1] Laxman Prasad v. Prodigy Electronics Ltd., (2008) 1 SCC 618, 627

[2] Union of India v. Ladulal Jain, (1964) 3 SCR 624: AIR 1963 SC 1681; Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd., (2004) 4 SCC 671, 675

[3] Bloom Dekor Ltd. v. Subhash Himatlal Desai, (1994) 6 SCC 322, 328

[4] Sonic Surgical v. National Insurance Co. Ltd., (2010) 1 SCC 135, 137

[5] SBI v. Ranjan Chemicals Ltd., (2007) 1 SCC 97, 102

[6] Baktawar Singh Bal Kishan v. Union of India, (1988) 2 SCC 293, 296

[7] Hakam Singh v. Gammon (India) Ltd., (1971) 1 SCC 286, 289

[8] Mohannakumaran Nair v. Vijayakumaran Nair, (2007) 14 SCC 426

[9] Patel Roadways Ltd. v. Prasad Trading Co., (1991) 4 SCC 270, 277

[10] New Moga Transport Co. v. United India Insurance Co. Ltd., (2004) 4 SCC 677, 681

[11] Ambica Industries v. CCE, (2007) 6 SCC 769, 784

Section 10, Code of Civil Procedure, 1908: An Overview and Analysis

Had it been possible for one to institute different suits, having identical subject matter, in different courts, the result would have been nothing less than a chaos. However, Code of Civil Procedure, 1908 (“CPC”), takes care of this problem. Section 10 of CPC provides that:

“No Court shall proceed......any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit......”

Under Section 10 of CPC, multiplicity of proceedings is intended to be avoided, i.e., for its application, the subject matter in a subsequent suit should be similar. Hence, Section 10 will not apply where a few of the matters in issue are common and will apply only when the entire subject-matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue.[1]This proposition also finds support from the words "directly and substantially in issue", which have been used in contra-distinction to the words "incidentally or collaterally in issue" [Supreme Court].[2] As far as the word “matter in issue” is concerned, according to Delhi High Court, it means all disputed material questions in the subsequent suit which are directly and substantially in question in the previous suit.[3]Hence, according to the court, these are material questions which have to be looked into, and not any question. However, in another case, Delhi High Court held that it is not the identity of the main issue or some of the issues, but the identity of the matter which is the determining test.[4] In other words, it is not the identity of the cause of action but the matters in issue involved in the subsequent suit and the previous suit.[5]

According to the Supreme Court, Section 10 has been construed by the courts as not a bar to the passing of interlocutory orders such as an order for consolidation of the later suit with the earlier suit, or appointment of a Receiver or an injunction or attachment before judgment.[6]

Delhi High Court has, in Smt. Meena Bhandari v. Smt. Krishna Kumari & Ors,[7] after considering various judgments of the Supreme Court, laid down the following essential conditions for the applicability of Section 10 of CPC

Thus, there are four essential conditions for attracting the application of Section 10, C.P.C.

(1) That the matter in issue in the second suit is also directly and substantially in issue in the first suit; (2) that the parties in the second suit are the same or parties under whom they or any of them claim litigating under the same title; (3) that the Court in which the first suit is instituted is competent to grant the relief claimed in the subsequent suit; (4) that the previously instituted suit is pending (a) in the same Court in which the second suit is brought, or (b) in any Court in India, or (c) in any Court beyond the limits of India established or continued by the Central Government, or (d) before the Supreme Court.

The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue.[8] The section enacts merely a rule of procedure and a decree passed in contravention thereof is not a nullity; hence, a court can decide relevant issues where a subsequently instituted suit can be decided on purely legal points without taking evidence.[9] The provisions of Section 10 do not become inapplicable on a Court holding that the previously instituted suit is a vexatious suit or has been instituted in violation of the terms of the contract.[10] Even in a situation when Section 10, C.P.C. does not strictly apply, for ends of justice, suit may be stayed under Section 151, C.P.C.[11]Interestingly, Section 10 is also applicable to the summary suits which are to be tried by the special procedure the laid down in Order XXXVII of the CPC.[12]

Delhi High Court has interpreted the decision of Supreme Court, in Gupte Cardiac Care Centre & Hospital vs. Olympic Pharma Care (P) Ltd,[13] thereby acknowledging that the test of 'directly and substantially in issue', as per Section 10 of the Code of Civil Procedure, is to see: whether the two suits arise out of the same transaction.[14] Section 10 cannot be interpreted to hold that since only proceeding with the trial of issue or suit is restricted by Section 10, C.P.C., therefore, it impliedly accepts maintainability of more than one suit by one plaintiff.[15]

For the application of Section 10, it is not sufficient that the parties are same or the subject-matter of the suits is same but the issues involved therein also should be same or substantially same and the relief which has been sought by the plaintiff in both the suits also should be substantially same.[16]

Delhi High Court has also differentiated between Section 10 & Section 11 of CPC, thereby holding that:

“The difference between section 10 and section 11 of the Code of Civil Procedure is well known. In section 10 of the Code of Civil Procedure the matter in issue in the earlier instituted suit and the subsequently instituted suit should be directly and substantially in issue in the previously instituted suit. Under section 11 of the Code of Civil Procedure mere pendency of the earlier suit which is not material but the civil suit should have been heard and finally decided between the parties.” [17]

As far as the applicability of explanation to Section 10, in relation to foreign courts, is concerned, Delhi High Court has held that:

“With due respect, we cannot concur with the reasoning that Explanation to Section 10 of the Code of Civil Procedure would operate conversely to enable a foreign court to assume jurisdiction in respect of a cause of action which is pending adjudication in this country.”[18]

As we conclude this post, we are assuming that it would have been able to provide a brief analysis of Section of 10. In the next post, we shall write about the other provisions of CPC.

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[1] Aspi Jal v. Khushroo Rustom Dadyburjor, (2013) 4 SCC 333 at page 338

[2] National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, (2005) 2 SCC 256

[3] Sagar Shamsher Jang Bahadur Rana and Anr v. The Union of India and Ors., AIR 1979 Delhi 118, (1979) ILR 1 Delhi 492

[4] Rajdhani Flour Mills Ltd. v.Uttam Agro Foods (India) Pvt. Ltd., 2003 (66) DRJ 111

[5] Laxmi Fruit Co. v. Gainda Ram & Co., 1983 (4) DRJ 221, 1983 RLR 100

[6] Indian Bank v. Maharashtra State Co-operative Marketing Federation Ltd.,  AIR 1998 SC 1952

[7] 2000 1 AWC 786 All, 2000 91 RD 297

[8] National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, (2005) 2 SCC 256, 259; British Indian Corporation v. Rashtraco Freight Carriers, 1996 (4) SCC 748

[9]  Pukhraj D. Jain v. G. Gopalakrishna, (2004) 7 SCC 251 at page 254

[10] Manohar Lal Chopra v. Seth Hiralal, 1962 Supp (1) SCR 450:AIR 1962 SC 527

[11] Atul Chandra Bora v.  Assam Tea Brokers Pvt. Ltd., Gawahati, AIR 1995 Gau 73

[12] s:Maharashtra State Co-operative marketing Federation Ltd., Bombay v. Indian Bank, Bombay, AIR1 997 Bom 186, 1996 (2) MhLj 925

[13] Gupte Cardiac Care Centre & Hospital vs. Olympic Pharma Care (P) Ltd, (2004) 6 SCC 756

[14] Filo Interior Decorations Pvt. Ltd. V. L.K. Modi & Ors., FAO (OS) 650/2010 [Delhi High Court]

[15] Ranbir Singh v Balbir Singh, CS(OS) NO. 802 OF 2002 [Delhi High Court]

[16] Sairabi Sayyad Abdul Aziz deceased through her L.Rs. and Ors. v.  Abdul Rashid Abdul Majid, 2002 (3) BomCR 139

[17] Maxwell Securities Pvt. Ltd. and Ors. V. National Stock Exchange of India Limited, 2001 (60) DRJ 685

[18]Essel Sports Pvt. Ltd. (Indian Cricket League) v. Board of Control for Cricket in India and Ors., 178 (2011) DLT 465, 178 (2011) DLT 465, (2011) ILR 5 Delhi 585

Jurisdiction of National Green Tribunal: Matters it can adjudicate; Principles it shall apply

In order to ensure that cases pertaining to environmental protection, conservation of forests etc. are adjudicated speedily, Parliament of India (“Parliament”), in the year 2010, enacted The National Green Tribunal Act (“NGT Act”). The NGT Act was enacted for ensuring that a tribunal, dealing specifically with environmental related matters, is established. Emphasising the importance of the NGT Act, Supreme Court, in Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India[1], held that in order for an expeditious disposal of environmental related matters, as also to avoid any conflict between the orders of the National Green Tribunal (“Tribunal”) and High Courts, all the matters covered under Schedule I of the NGT Act should be instituted and litigated before the Tribunal.

Image Courtesy: Odisha Reporter

Section 14 of the NGT Act provides that the Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment is involved, and such question arises out of the enactments specified in Schedule I. Schedule I of the NGT Act contains a list of seven legislations viz. The Water (Prevention and Control of Pollution) Act, 1974, The Water (Prevention and Control of Pollution) Act, 1977, The Forest (Conservation) Act, 1980, The Air (Prevention and Control of Pollution) Act, 1981, The Environment (Protection Act) Act, 1986, The Public Liability Insurance Act, 1991 and The Biological Diversity Act, 2002. Hence, as long as a substantial civil cause of action arises out of any of these Acts, an applicant can approach the Tribunal. Locus Standi, in such cases, should be determined by also taking into account respective legislations. Under Section 14 of the NGT Act, unless an applicant was prevented by a sufficient cause, he has to file the application for adjudication before the Tribunal within six months from the date on which cause of action first arose. What is clear from the language of Section 14 is that it is not every civil cause of action, arising out of the above-mentioned legislations, that can be brought before the Tribunal. Instead, the same shall involve a “substantial question relating to environment”.

Moving further, Section 16 of the NGT confers on the Tribunal appellate powers against certain orders [See Section 16 for the list of such orders]. Hence, a person, who is aggrieved by any of those orders, can approach the Tribunal. Section 29 of the NGT Act puts a bar on the jurisdiction of a civil court in those matters which Tribunal is empowered to determine under its appellate jurisdiction. Further, as per section 33, provisions of NGT Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force.

The NGT also provides remedy in a situation where an injury is suffered by a person. Hence, where death of, or injury to, any person (other than a “workman”) is resulted from any accident or activity under Schedule I legislations, Section 17 of the NGT Act empowers the Tribunal to determine compensation in such cases. In case of an accident, Tribunal should apply the principle of no fault [See: Section 17(3)].

Section 18(2) of the NGT Act provides the list of persons who can make an application for settlement of dispute or grant of relief or compensation before the Tribunal:

a.        the person, who has sustained the injury; or

b.       the owner of the property to which the damage has been caused; or

c.       where death has resulted from the environmental damage, by all or any of the legal representatives of the deceased; or

d.      any agent duly authorised by such person or owner of such property or all or any of the legal representatives of the deceased, as the case may be; or

e.       any person aggrieved, including any representative body or organisation; or

f.        the Central Government or a State Government or a Union territory Administration or the Central Pollution Control Board or a State Pollution Control Board or a Pollution Control Committee or a local authority, or any environmental authority constituted or established under the Environment (Protection) Act, 1986 or any other law for the time being in force

Under clause (e) of Section 18(2), any aggrieved person can be approach the Tribunal. Indeed, such a lenient provision is necessary when issues, like environment, are concerned.

While making orders or awards, The Tribunal has to, in accordance with Section 20 of the NGT Act, apply the principles of sustainable development, the precautionary principle and the polluter pays principle. These are the basis provisions that provide for the matters which the Tribunal can entertain. We promise you that we will also come up with posts thereby discussing each of the principles, mentioned under Section 20 of the NGT Act, in detail.

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[1] Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India, (2012) 8 SCC 326, 347

Who can prefer an appeal before the Supreme Court

A landmark legal development has been the United States Supreme Court's branding of the contentious Federal Defence of Marriage Act (DOMA) as unconstitutional in Hollingsworthv. Perry. While doing so it also rejected an appeal from a Californian lower court's decision invalidating Proposition 8, a statute that sought to discriminate against homosexual people. In fact, the court refused to go into the merits of Proposition 8 stating that the appellants did not have the requisite locus standi to invoke the court's (Supreme Court's) jurisdiction as the appeal was not preferred by the State of California but by a group of private individuals who had sponsored the proposition.

The decision is particularly important in the Indian context as an appeal against the Delhi High Court's 2009 Naz Foundation judgment is pending before the Indian Supreme Court. In that decision the High Court deemed Section 377 of the Indian Penal Code to be unconstitutional for criminalizing sexual relations between consenting homosexual adults. The interesting point about the appeal is that the original respondents to the case, The National Capital of Delhi and The Union of India haven't preferred it, with the Attorney General unequivocally stating the Government's full acceptance of the High Court's verdict. Who then are the appellants? They are a motley of private individuals from different sections of the society, thus giving rise to obvious jurisdictional issues. In light of the US Supreme Court verdict the Indian Supreme Court may not even go into the merits of the case as the appellants, not being the state but private individuals, do not have the right to enforce the statute they seek to defend, thereby invalidating their locus standi. However, will the Supreme Court follow this route? In an erudite and brilliantly written piece Mr. Vikram Raghavan, a senior counsel with the World Bank, has sought to elucidate this interesting legal principle.

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"