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Report No. 263

3. Some Judgements of The Supreme Court of India

3.1 In re: McGrath (Infants), [1893] 1 Ch 143 Lindley LJ said:

"The dominant matter for the consideration or the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded."

3.2 These words are relevant even a century later, and have found place in various Indian judicial pronouncements. The Courts referred to the Convention on the Rights of the Child, 1989 and emphasized the importance of the principle of best interests of the child in Laxmi Kant Pandey v. Union of India, AIR 1984 SC 469; Gaurav Jain V. Union of India, AIR 1997 SC 2021; and Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.

3.3 The Supreme Court in Dr. V. Ravi Chandran v. Union of India, (2010) 1 SCC 174; and Arathi Bandi v. Bandi Jagadrakshaka Rao, AIR 2014 SC 918, directed to return the respective children to the country of their 'habitual residence' on the principle of 'comity of courts' principle for the determination of their best interests and welfare which is the prime consideration.

3.4 In Roxann Sharma v. Arun Sharma, AIR 2015 SC 2232, the Apex Court deprecated the practice of 'forum shopping' requiring the entitlement of custody rights of the other spouse to be judicially determined. The Court observed that:

"the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration".

3.5 In such cases, the Court exercises its parens patriae jurisdiction to decide the best interests and welfare of the child. In view thereof, the issue of conflicting interests of the contesting parents remain insignificant. The Court exercise this extraordinary jurisdiction de hors the statutory right of the parties.

3.6 In Ruchi Majoo v. Sanjeev Majoo, AIR 2011 SC 1952, the Supreme Court emphasised that in case the child is not 'ordinarily resident' in the territorial limits of the Court, the Court must examine the matter independently.

3.7 Recently, the Supreme Court succinctly reiterated all principles, the Courts have applied over the course of years to judge cases of international parental abduction, in the case of Surya Vadanan v. State of Tamil Nadu, AIR 2015 SC 2243. The Court stated that:

  • principle of 'comity of courts and nations' must be respected and the principle of 'best interest and welfare of the child' should apply;
  • rule of 'comity of courts' should not be jettisoned except for compelling special reasons to be recorded in writing by a domestic court;
  • interlocutory orders of foreign courts of competent jurisdiction regarding child custody must be respected by domestic courts; and
  • an elaborate or summary enquiry by local courts when there is a pre-existing order of a competent foreign court must be based on reasons and should not be ordered as routine when a local court is seized of a child custody litigation.

3.8 To state it simply, the welfare of the child must have primary importance and secondly, the 'principle of comity of courts' - a principle of 'self -restraint', must be considered.

3.9 In cases, where the jurisdiction of the foreign court in not in doubt, the "first strike" principle could be applicable, namely, whichever court seized the matter first, ought to have prerogative of jurisdiction in adjudicating the welfare of the child. Further, whenever the matter is pending in a foreign court and interim order has been passed by the said court, the Indian court should not proceed with the matter.

3.10 It has repeatedly been held by the Courts that repatriation of the child to the foreign land should not

(a) cause any moral, physical, social, cultural or psychological harm to the child;

(b) cause any legal harm to the parent with whom the child is in India;

(c) violate the fundamental principles of human rights and freedoms of the receiving country, i.e., where the child is being held and;

(d) considering the child welfare principle, due importance must be given to the primary care-giver of the child.

3.11 More so, in such matters, it is of primary importance to decide whether the foreign court has jurisdiction over the child in question if the child is 'ordinarily resident' in the foreign court's territorial jurisdiction, and, then the order of the foreign court must be given due weight and respect. No litigant can be permitted to defy and decline compliance to an interim or final order of a court merely, because one of the parents is of the opinion that the order is incorrect. (vide Surya Vandanan v. State of Tamil Nadu)

Protection of Children (Inter-Country Removal and Retention) Bill, 2016 Back

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