"48. Therefore, we are concerned with two principles in a case such as the present. They are:
(i) the principle of comity of courts; and
(ii) the principle of the best interests and the welfare of the child.
These principles have been referred to as contrasting principles of law" (Shilpa Aggarwal v. Aviral Mittal, (2010) 1 SCC 591) but they are not contrasting in the sense of one being the opposite of the other but they are contrasting in the sense of being different principles that need to be applied in the facts of a given case.
49. What then are some of the key circumstances and factors to be taken into consideration for reaching this final goal or final objective? First, it must be appreciated that the most intimate contact doctrine and the closest concern doctrine of Surinder Kaur Sandhu (Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698) are very much alive and cannot be ignored only because their application might be uncomfortable in certain situations. It is not appropriate that a domestic court having much less intimate contact with a child and having much less close concern with a child and his or her parents (as against a foreign court in a given case) should take upon itself the onerous task of determining the best interests and welfare of the child. A foreign court having the most intimate contact and the closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural milieu in which the child has been brought up rather than a domestic court. This is a factor that must be kept in mind.
50. Second, there is no reason why the principle of comity of courts should be jettisoned, except for special and compelling reasons. This is more so in a case where only an interim or an interlocutory order has been passed by a foreign court (as in the present case). In McKee (McKee v. McKee, 1951 AC 352) which has been referred to in several decisions of this Court, the Judicial Committee of the Privy Council was not dealing with an interim or an interlocutory order but a final adjudication. The applicable principles are entirely different in such cases. In this appeal, we are not concerned with a final adjudication by a foreign court the principles for dealing with a foreign judgment are laid down in Section 13 of the Code of Civil Procedure.21 In passing an interim or an interlocutory order, a foreign court is as capable of making a prima facie fair adjudication as any domestic court and there is no reason to undermine its competence or capability. If the principle of comity of courts is accepted, and it has been so accepted by this Court, we must give due respect even to such orders passed by a foreign court. The High Court misdirected itself by looking at the issue as a matter of legal rights of the parties. Actually, the issue is of the legal obligations of the parties, in the context of the order passed by the foreign court."
24. Here in this case on hand, the minor child is a Citizen of USA by birth. He came to India with his parents in November 2009 and returned to USA with his father, as agreed by the mother. When the child was again brought to India for temple visit in August 2011, that is after about 2 years, the child was virtually snatched from the appellant by the respondent with the help of police. The child, being citizen of USA, the Superior Court of California is having most intimating contact and the closest concern. Even as per the principle of Comity of Courts, the order of the Superior Court of California is to be respected.
25. The learned counsel for the respondent submits that the respondent being mother, got Overseas Citizen of India visa (OCI) for the child. Detaining the child in India and obtaining OCI visa by the respondent are only fortuitous circumstances and these do not confer any jurisdiction to the Courts here.
26. The Court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of the child including stability and security, loving and understanding care and guidance and full development of the child's character, personality and talents.
27. Even while considering the interest of the minor child, this Court is of the view that due respect is to be given to the orders of the USA Court, as the USA Court has the most intimate contact with the issue involving the custody of the minor child, who is a citizen of USA. Therefore, the argument of the learned counsel for the respondent that the Foreign Court is not having competent jurisdiction is not sustainable. Therefore, as per Section 13 of the Code of Civil Procedure, the order of the Superior Court of California is to be construed as conclusive between the appellant and the respondent as to the custody of the minor child and binding upon the parties.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 25.07.2016
CORAM:
MR.JUSTICE A.SELVAM
and
MR.JUSTICE P.KALAIYARASAN
O.S.A.Nos.249 and 250 of 2015
M.P.Nos.2 to 4 of 2015
and M.P.No.1 of 2015
P.K.Srikumar
Vs.
Harshitha Gopinathan
Citation:AIR 2016 Madras 187
