Monday, May 16, 2011

Indian courts can decide NRI couples' matrimonial and guardianship rows: SC

Indian courts can decide NRI couples' matrimonial and guardianship rows: SC

16 may 2011

New Delhi Indian courts have jurisdiction to deal with custodial disputes of minor children even if a foreign court has passed an order in favour of either of the parents, the Supreme Court has ruled in a matrimonial dispute of an NRI family.

A bench of justices V S Sirpurkar and T S Thakur said in a judgement said that simply because a foreign court has passed an order, Indian courts cannot "abjectly surrender" to it and shirk its duty of deciding the dispute.

"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," Justice Thakur, writing the judgement, said.

The apex court passed the judgement while upholding an appeal filed by Ruchi Majoo challenging a Delhi High Court judgement that Indian courts have no jurisdiction under the doctrine of "comity of courts" to entertain any petition if a decree or order has already been passed by any foreign court.

A superior court in California had issued a red corner notice against Ruchi in a suit filed by her estranged US-based husband Sanjeev Majoo who had alleged his wife had fled with their minor son to India despite a decree by the US court granting him custody of the child.

The couple were living with the kid in the US before she returned to India in 2008. A Delhi court had on Ruchi's application granted her custody of the child under the Guardians and Wards Act.

The Delhi High Court had, however, struck down the trial court's order and asked the couple to submit themselves to the Californian court as all the three possessed US citizenship.

Aggrieved, the wife appealed through her counsel Ashish Bhan in the apex court where she accused her husband of being involved in pornography and adulterous relationship. The husband, while denying the allegations, maintained that Indian courts had no jurisdiction since a decree had already been passed by the Californian court.

Rejecting the husband's arguments, the apex court said "recognition of decrees and orders passed by foreign courts remains an eternal dilemma in as much as whenever called upon to do so, courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 of the Code of Criminal Procedure 1908 as amended by the Amendment Act of 1999 and 2002.

"The duty of a court exercising its Parens Patraie (legal guardian) jurisdiction as in cases involving custody of minor children is all the more onerous. Welfare of the minor in such cases being the paramount consideration, the court has to approach the issue regarding the validity and enforcement of a foreign decree or order carefully.

The bench hastened to add that it does not, however, mean that the order passed by a foreign court need not be considered by Indian courts.

"But it is one thing to consider the foreign judgement to be conclusive and another to treat it as a factor or consideration that would go into the making of a final decision.

"We must make it clear that no matter a court is exercising powers under the Guardian & Wards Act, it can choose to hold a summary inquiry into the matter and pass appropriate orders provided it is otherwise competent to entertain a petition for custody of the minor under Section 9(1) of the Act.

The apex court reiterated that in matters dealing with custodial rights, the interest of the minor should be paramount.

The bench said the interest of the minor shall be better served if he continued in the custody of his mother, especially when the father has contracted a second marriage and did not appear to be keen for having actual custody of the minor.

The apex court, however, minced no words in expressing displeasure at the conduct of the wife and her parents in poisoning the mind of the kid against their father.

"For a boy so young in years, these and other expressions suggesting a deep-rooted dislike for the father could arise only because of a constant hammering of negative feeling in him against his father. This approach and attitude on the part of the appellant or her parents can hardly be appreciated.

"What the appellant ought to appreciate is that feeding the minor with such dislike and despise for his father does not serve his interest or his growth as a normal child. It is important that the minor has his father¿s care and guidance, at this formative and impressionable stage of his life," the bench said.

The apex court said the father should be allowed to talk through telephone or video conference, "which too shall not only be permitted but encouraged by the appellant," Justice Thakur added.