Foreign Divorce, Child Custody and Prayer for interim injunction

Madras High Court

Dated : 27.07.2011

Coram : The Honourable Mr.Justice V.RAMASUBRAMANIAN

OA.NO.191 OF 2011 IN CS.NO.135 OF 2011

Ms.Dorothy Thomas …Applicant/Plaintiff
Vs
Mr.Rex Arul …Respondent/Defendant

CIVIL SUIT under Order VII Rule 1 of the Civil Procedure Code read with Order IV Rule 1 of the Original Side Rules seeking a judgment and decree against the defendant for (i) a declaration that the final order dated 1.11.2010 passed by the Superior Court of Cobb County, State of Georgia, USA in Civil Action File NO.10-1-8238-48 to the extent that it deals with issues of custody of the minor child Rhea Immaculate Arul (aged 3= years) as inconclusive, unenforceable, null and void and not binding on the plaintiff and the minor child Rhea Immaculate Arul, in all aspects except for the dissolution of the marriage between the plaintiff and the defendant; (ii) a permanent injunction restraining the defendant, his men, agents, representatives, assigns or any persons claiming through or under him, from in any manner separating the plaintiff from the minor child Rhea Immaculate Arul (aged 3= years) except by following due process of law; (iii) a permanent injunction restraining the defendant, his men, agents, representatives, assigns or any persons, claiming through or under him, from publishing in any manner, directly or indirectly, whether orally, in writing or by signs or innuendo, any material that is defamatory or tends to defame, derogate, denigrate or lower the reputation of the plaintiff in the eyes of right minded persons in society; and (iv) a permanent injunction restraining the defendant, his men, agents, representatives, assigns or any persons claiming through or under him, from in any manner causing any physical harm to the plaintiff or the minor child namely Rhea Immaculate Arul (aged 3= years). OA.No.191 of 2011 seeking to grant temporary injunction restraining the respondent, his men, agents, representatives, assigns or any persons, claiming through or under him, from in any manner enforcing order dated 1.11.2010 of the Superior Court of Cobb County, State of Georgia, USA in Civil Action File No.10-1-8238-48 or harassing the applicant and separating the applicant from the minor child Rhea Immaculate Arul, pending disposal of the above suit.

For Applicant/Plaintiff : Mr.J.Sivanandaraj

For Respondent/Defendant : Ms.A.Arulmozhi

O R D E R

Pending suit for a declaration that the final order dated 1.11.2010 passed by the Superior Court of Cobb County, State of Georgia, USA in Civil Action File No. 10-1-8238-48, to the extent that it deals with issues of custody of the minor child Rhea Immaculate Arul, aged about 4 years is inconclusive, unenforceable, null and void and not binding on the plaintiff and the minor child and for consequential decrees of permanent injunction, the plaintiff, who is the mother of the minor child, came up with 3 applications, viz., (i) O.A.No.191 of 2011 seeking an interim order of injunction restraining the respondent  father from in any manner seeking to enforce the said order of the Superior Court of Cobb County, State of Georgia, in so far as the custody of the minor child is concerned (ii) O.A.No.192 of 2011, seeking an interim order of injunction restraining the defendant from in any manner publishing any defamatory or derogatory material, lowering the reputation of the plaintiff in the eyes of the right minded persons and (iii) A.No.1220 of 2011, seeking a stay of operation of the final order dated 1.11.2010, passed by the Superior Court of Cobb County, State of Georgia, U.S.A., in Civil Action File NO.10-1-8238-48.

2. On 28.2.2011, when the above applications were moved for ad interim ex parte orders, I granted an order of interim injunction in favour of the applicant/ plaintiff in O.A.No.191 of 2011. In the other two applications, notice was ordered. After service of notice, the defendant came up with a counter in O.A.No.191 of 2011 along with a set of documents and both parties agreed to argue O.A.No.191 of 2011 in the first instance, since it concerned the custody of a minor child aged 4 years.

3. Therefore, O.A.No.191 of 2011 was taken up for hearing and I have heard Mr.J.Sivanandaraj, learned counsel appearing for the applicant/plaintiff and Ms.A.Arulmozhi, learned counsel appearing for the respondent/defendant.

4. The brief facts on which the parties are not and cannot, be in dispute and which are borne out by the documents filed on either side, are as follows :

a. The plaintiff married the defendant on 23.9.2005 in Atlanta, USA. Both of them were divorcees at the time of their marriage;

b. Out of the said wedlock, the minor girl Rhea Immaculate Arul was born on 18.5.2007. The marriage between the plaintiff and the defendant ran into rough weather leading to the plaintiff herself filing a petition for divorce on 7.5.2010 on the file of the Superior Court of Cobb County, State of Georgia, USA;

c. After filing the petition for divorce on 7.5.2010 in the said Court, the plaintiff left USA on 11.5.2010 along with the child and arrived in India on 12.5.2010.

d. But she returned to U.S., on 22.5.2010 and withdrew her petition for divorce on 3.6.2010, after service of summons on the defendant on 1.6.2010;

e. On 26.7.2010, the plaintiff again came back to India with the child. Thereafter, she filed a petition in Civil Action File NO.10-1-8238-48 on the file of the same Court namely Superior Court of Cobb County, State of Georgia, praying not only for divorce, but also for primary custody of the minor child and for the grant of child support in accordance with the Child Support Guidelines. This petition dated 16-8-2010 was filed on 17.8.2010 by the plaintiff, through her counsel in U.S., though the plaintiff herself was in India at that time; f. Upon receipt of summons in the second petition filed by the plaintiff, the respondent/defendant filed an ‘Answer and Counter Claim’ on 24-8-2010, seeking divorce as well as primary custody of the minor child;

g. Along with his Answer and Counter claim, the respondent also moved a ‘Motion for Emergency Hearing’ on his counter claim in so far as the issue of custody of child is concerned, expressing an apprehension that the plaintiff may settle down in India with the child. But the plaintiff opposed the motion for emergency hearing on the ground that she was due to attend the regular hearing on 18-10-2010 and that it would be difficult to make an emergent trip to U.S. Then the parties agreed not to press for an early hearing, on the understanding that the plaintiff would attend the regular hearing on 18-10-2010 with the child. h. But, the plaintiff and child did not return to United States for the hearing on 18.10.2010. On the contrary, the plaintiff requested the dismissal of her petition for divorce and it was accordingly dismissed. Therefore, the respondent proceeded with his counter claim and after examining the defendant and marking 24 exhibits, the Superior Court of Cobb County, State of Georgia passed a final order dated 1.11.2010. The final order comprises of several parts. By the first part, the marriage between the plaintiff and the defendant was dissolved by a decree of divorce. By the second part, the plaintiff was directed to return the minor child to USA on or before 24.11.2010. This date was fixed by the court, taking into account the fact that the plaintiff had a confirmed return journey ticket for her and the child on 23-11-2010. By the second part of the order, the defendant was also granted sole physical custody of the minor child with visitation rights to the plaintiff on the fourth week end of every month. The parenting schedule to be followed during holidays was spelt out in the third part of the order. The other parts of the order dealt with child support, health insurance, division of property, marital debts, alimony and attorney’s fees; i. Since the plaintiff did not return to USA with the child as per the final order passed by the said Court and as per the return journey ticket with which she arrived in India, the defendant filed a petition for the issue of a Writ of Habeas Corpus on the file of the same Court on 16.12.2010.

j. The summons on the Writ of Habeas Corpus in Civil Action File No.10-1-12222-48 were served on the plaintiff herein on 8.1.2011 in India, by a Special Process Server appointed by the Superior Court of Cobb County. Despite service of summons in the Habeas Corpus, the plaintiff herein did not take any steps. Therefore, by an order dated 15.2.2011, the Superior Court of Cobb County, State of Georgia issued a Writ of Habeas Corpus to attach the body of the child and to deliver the child to the defendantfather; k. Simultaneously with the habeas corpus petition, the defendant also filed a contempt petition on 10.12.2010 in Civil Action File No.10.1.12096.48. The Superior Court of Cobb County issued summons to the plaintiff herein in that contempt petition. The summons, the motion for contempt and the other relevant papers, were all served in India, on the plaintiff herein by a Special Process Server appointed by the Court of Cobb County, on 8.1.2011. l. After receiving the summons both in the Writ of Habeas Corpus and the Contempt Petition, on 8.1.2011, the plaintiff filed the above suit. The papers were presented originally on 28.1.2011 along with an application for leave to sue under Clause 12 of the Letters Patent. On 1.2.2011, leave was granted in A.No.561 of 2011. Thereafter, the suit got numbered as above and an interim order of injunction was granted by me in OA.NO.191 of 2011 on 28.2.2011; m. In the meantime, the defendant also filed a petition for grant of a Writ of Habeas Corpus in HCP.NO.213 of 2011 on the file of this Court in January 2011. The said Habeas Corpus petition is pending adjudication in view of the fact that larger issues are raised in the above suit;

n. Though the contempt proceedings in Civil Action File No.10-1-12096-48 was filed by the defendant on 10.12.2010 and the service of process on the plaintiff was also completed, the plaintiff did not respond. Therefore, the Court passed an order on 12.4.2011, directing the plaintiff herein to return the child on or before 25.5.2011, in order to purge herself of the contempt. The order also stated that if the plaintiff failed to return the child by the designated date and time, the order itself will serve as an order for incarceration. o. In view of the orders of the Superior Court of Cobb County (1) granting primary custody of the child to the defendant herein (2) finding the plaintiff herein guilty of contempt prima facie (3) issuing a writ of habeas corpus to return the child to U.S.A., and in view of the resistance on the part of the plaintiff in complying with every order of the said Court, it appears that a red corner notice has also been issued through the U.S. Consulate. It is in the background of these facts that the above application was taken up for hearing.

5. Admittedly, there is a final order passed by the Court of competent jurisdiction namely the Superior Court of Cobb County of the State of Georgia as on date, granting permanent custody of the minor child to the defendant. Therefore, the main prayer in the above suit is for a declaration that the said judgment, which is a foreign judgment within the meaning of Section 2(6) of the Code of Civil Procedure, is not conclusive and binding upon the parties.

6. Under Section 14 of the Code of Civil Procedure, a presumption arises that the foreign judgment produced before the Court, was pronounced by a Court of competent jurisdiction. But, it is a rebuttable presumption. Section 13 of the Code makes a foreign judgment conclusive as to any matter thereby directly adjudicated between the same parties. But, Section 13 lists out six exceptions to the general rule that a foreign judgment is conclusive. The exceptions are : (i) where it was not pronounced by a Court of competent jurisdiction;

(ii) where it was not given on the merits of the case;

(iii) where it appears on the face of the proceedings to be founded on an incorrect view of International Law or a refusal to recognise law of India;

(iv) where the proceedings were opposed to natural justice;

(v) where it was obtained by fraud; and

(vi)where it sustains a claim founded on a breach of any law in force in India.

7. In R.Viswanathan Vs. Rukn-ul-Mulk Syed Abdul Wajid (AIR 1963 SC 1), the Supreme Court pointed out that Section 13 incorporates a branch of the principle of res judicata. However, the Supreme Court also clarified that though both rules are founded upon the principle of sanctity of judgments competently rendered, the rule of conclusiveness of a foreign judgment as enacted in Section 13 is some what different in its operation from the rule of res judicata incorporated in Section 11. But, the rule of conclusiveness of a foreign judgment applies only to matters directly adjudicated upon and hence, what is conclusive is the judgment. While the competence of a Court, for the application of the rule of res judicata, is determined strictly by the Municipal Law, the competence of the foreign court is determined by the dual test of competence by the laws of the State, in which the court functions as well as in an international sense. To apply the rule of res judicata, the adjudication should have been in a former suit. But, for the application of rule of conclusiveness, it is not necessary that the judgment must have been delivered by the foreign court, before the institution of the suit in which the plea is set up. Again, what is conclusive in respect of a foreign judgment is only the final adjudication and not the reasons. More importantly, the Supreme Court held in R.Viswanathan that in adjudging the competence of the foreign court, it would not be open to the Indian court to ignore the course of practice in that court, even if it be not strictly warranted by the procedural law of that State. Whether the procedure of the foreign court, which does not offend natural justice is valid or not, is for the foreign court to decide and not by the court in which the foreign judgment is pleaded as conclusive.

8. Keeping in mind, the above fundamental principles laid down by the Apex Court with regard to the scope of Section 13 of the Code, if we analyse the contents of the plaint, the following picture emerges. According to the plaintiff –

(i) her life with the defendant became extremely difficult to manage, forcing her to file a petition for divorce on 7.5.2010 in the Superior Court of Cobb County in Georgia.

(ii) after the filing of the divorce petition, she came to India on 12.5.2010 on the advise of her family members.

(iii) mediatory discussions were held, which made the defendant adopt a conciliatory approach.

(iv) it was agreed that the couple would shift to India permanently.

(v) the defendant agreed to shift to India, after obtaining U.S., citizenship.

(vi) after both of them agreed for permanent relocation in India, she did several things such as (A) got the child admitted to a school in Chennai on 28.5.2010, (B) withdrew her first petition for divorce on 3.6.2010, (C) put up the house in US for sale, (D) sold her car, (E) withdrew the child from the school in U.S., on 8.6.2010 and (F) came back to India on 26.7.2010.

(vii) after the plaintiff came to India, the defendant changed his mind and started torturing her, compelling the plaintiff to file a second petition for divorce on 16.8.2010 from India itself, through her counsel in U.S.

(viii) the defendant filed a counter claim in the said action and also moved an application for emergency hearing, compelling the plaintiff to agree to go to U.S., to attend the hearing scheduled for 18.10.2010.

(ix) she did not have adequate financial resources to travel to U.S., and she did not even have any assurance for her return to India and hence she sent a mail dated 14.10.2010, asking the defendant to provide funds for her travel to U.S., and also to provide an assurance that she would be permitted to travel back to India.

(x) the plaintiff could not go to U.S., for the hearing scheduled for 18.10.2010, in view of the failure of the defendant to provide funds for her travel and in view of a sense of insecurity regarding her return to India.

(xi) taking advantage of her inability to travel to U.S., and attend the hearing on 18.10.2010, the defendant proceeded with his counter claim on 18.10.2010 and also obtained a final order, behind her back by playing fraud and by misleading the Court.

9. A scan of the plaint averments and the contentions raised at the time of hearing would show that the plaintiff assails the final order of the Superior Court of Cobb County, on 3 distinct grounds viz., (a) that it was not given on the merits of the case (b) that the proceedings were opposed to the principles of natural justice and (c) that it was obtained by fraud and misrepresentation. In other words, the plaintiff stakes her claim in terms of clauses (b), (d) and (e) of Section 13 CPC.

10. Apart from the above 3 grounds, the plaintiff has also made a feeble attempt to assail the decision of the foreign Court, on the ground that it had no territorial jurisdiction, to try and decide a claim relating to physical custody of the child. This is seen from para 32 of the plaint. This contention is raised on the ground that the child was in India at the time when original complaint for divorce was filed and also at the time when the counter claim was made, by the defendant. But this contention was not pressed hard at the time of hearing, in view of the fact that it was the plaintiff who fired the first salvo, by filing the petition for divorce before the Superior Court of Cobb County, Georgia, seeking both divorce as well as primary custody of the child. Therefore, the jurisdiction of the foreign court to decide the issue of custody of the child, was invoked by the plaintiff herself even when she was in India and hence she cannot now question the jurisdiction of that Court, whose jurisdiction she voluntarily invoked, not once but twice. It must also be remembered that the plaintiff is no ordinary person, but a legal practitioner in India, carrying on her shoulders, an important position in a leading law firm. Even in U.S., she was running the office of the said law firm. Therefore, realising the fact that it was she who invoked the jurisdiction of the foreign Court, the plaintiff did not press hard on the question of jurisdiction at the time of hearing. Hence, we may have to test the claim of the plaintiff only with reference to the 3 grounds relatable to Section 13 (b),(d) and (e) of the Code of Civil Procedure 1908.

11. But before taking up those 3 grounds, I would first deal with one interesting submission made by Mr.J.Sivanandaraj, learned counsel for the plaintiff. The submission is that while a decree of dissolution of marriage, passed by a foreign court, may require recognition out of necessity, an order relating to the custody of children, being in the nature of an ancillary order, need not be recognised. In support of the said contention, the learned counsel relied upon the 65th Report of the Law Commission of India, which dealt with the topic of ‘Ancillary Orders’ under Chapter 19. After tracing the history of the jurisdiction of Courts to pass ancillary orders in matrimonial causes and Section 8(3) of the English Act of 1971, the Law Commission referred to the decision of the Court of Appeal in Wood vs. Wood {1957 (2) All E.R. 14}. In that decision, the Court of Appeal drew a distinction between matters of status and matters of personal right and obligation. The Court accepted a foreign decree as terminating the status of marriage, but did not accept a decree discharging personal rights. The Law Commission also referred to a few American cases, where the impact of Article IV, Section 1 of the American Constitution, containing the ‘full faith and credit clause’ was examined. Thereafter, the Law Commission recommended the adoption of the principle on which Section 8(3) of the English Act of 1971, was based. The suggestion made by the Law Commission in paragraph 19.15 reads as follows:- ‘19.15. The need for such a provision arises by reason of the combined operation of the following two factors:-

(a) The divorce granted by the foreign court is to be recognised under the proposed law, and the parties would no longer be husband and wife.

(b) At the same time, since the proposed law is going to provide (in effect) that the ancillary order passed by the foreign court may not be recognised, the ancillary order will be of no consequence in India.

The result will be that there will be an hiatus, in regard to matters governed by ancillary orders. It is in order to fill up this hiatus that a provision of the nature suggested above is needed.’

12. Based on the above recommendation of the Law Commission, the learned Counsel for the plaintiff contended that the order of the foreign court, in so far as it concerns the custody of the child, need not be recognised by this court, as it is only an ancillary order.

13. But the said contention cannot be countenanced for the simple reason that no law was made on the basis of the above recommendation. As a matter of fact, the Supreme court pointed out in Y.Narasimha Rao vs. Y.Venkata Lakshmi {(1991) 3 SCC 451} that the labours of the Law Commission poured in its 65th Report on this very subject, had not fructified eversince April 1976, when it was submitted. In paras 11 and 12 of the said decision, the Apex Court pointed out the following:- (i) In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc., the problem in India is complicated due to the existence of different personal laws.

(ii) The distinction between matters concerning personal and family affairs and matters concerning commercial relationships, civil wrongs etc., is well recognised in other countries and legal systems. The law in the former area tends to be primarily determined and influenced by social, moral and religious considerations and public policy plays a special and important role in shaping it.

(iii) No country can afford to sacrifice its internal unity, stability and tranquility for the sake of uniformity of rules and comity of nations. These considerations are important and appropriate to facilitate international trade, commerce, industry, communication, transport, exchange of services, technology, manpower etc. alone.

14. But interestingly, the decision in Y.Narasimha Rao, took note of only one earlier decision, viz., the one in Satya vs. Teja Singh {1975 (1) SCC 120}. The decisions in (i) Surinder Kaur Sandhu (ii) Elizabeth Dinshaw and (iii) Dhanwanti Joshi, which were rendered in 1984, 1987 and 1988 (which I shall deal with later) were not taken note of in Y.Narasimha Rao. The decisions which came after Y.Narasimha Rao, viz., (i) Sarita Sharma (ii) Shilpa Agarwal (iii) V.Ravichandran and (iv) Ruchi Majoo, dealt with these issues in greater detail, specifically with reference to the question of child custody. In the 7 cases in which the Supreme Court dealt with this issue, specifically on the subject of custody of child, the Court laid down 3 basic principles, which we shall see later. These principles were evolved on the basis of International Conventions, to some of which, India was a party and to others India was not. Therefore, a foreign decree on the custody of the child cannot anymore be treated as an ancillary order, which can be disregarded by this court. It may be a temporary order capable of being varied by the very same court on change of circumstances. Even here, every child custody order is treated as temporary, entitling the parties to seek modification of the same at any time,upon change of circumstances. But a custody order passed by a foreign court of competent jurisdiction cannot be treated as an ancillary order, which can be disregarded totally. In fact, the courts in US, do not regard even decrees of divorce obtained in certain jurisdictions, such as mail order divorces granted by Mexican courts. Therefore the distinction sought to be made between decrees of divorce and decrees for maintenance and custody passed by foreign courts, has to be seen in the context of the law laid down by courts. The field is occupied only by Jugde made law. Whenever a foreign decree relating to custody of a child is produced, the court has to decide (i) whether by a summary order, the parties should be directed to seek redressal from the foreign court itself or (ii) whether the court should conduct a detailed inquiry into the question of interest and welfare of the child, taking the foreign decree as one of the several inputs. This is how the law has evolved from out of the 7 decisions so far rendered by the Apex court. Therefore, I cannot rely upon the report of the Law Commission and reject the foreign court order outright. Hence, let me now move on to the other issues. JUDGMENT NOT GIVEN ON THE MERITS OF THE CASE

15. The first ground on which the foreign judgment is assailed is that it was not given on the merits of the case. This contention is based primarily upon the fact that the plaintiff withdrew her petition for divorce and remained ex parte to the counter claim made by the defendant. Therefore, a draft text of the judgment was prepared and presented by the Attorney for the defendant, as seen from the endorsement towards the end of the “Final Order” dated 1.11.2010, passed by the learned Judge of the Superior Court of Cobb County, State of Georgia, filed as plaint document No.45. This, according to the plaintiff, shows that whatever was prepared as a draft text of the judgment by the Attorney of the defendant, was accepted by the Foreign Court without any independent application of mind, merely because the plaintiff remained exparte to the counter claim. Moreover, the plaintiff contends that there is no discussion in the judgment, on the merits of the case and the evidence available on record. Even a judgment rendered ex parte in India, is supposed to contain some discussion on the merits. But there is no discussion even on the issue of interest and welfare of the child, though the plaintiff has been asked to pay $ 600 per month to the child. Therefore, it is the plaintiff’s contention that the foreign judgment was not rendered on merits, making it vulnerable for an attack under section 13 (b), CPC.

16. But there are 3 strong reasons for me reject the said contention. They are:-

(i) The preamble part of the Final Order, dated 1.11.2010, contains a gist of what had actually transpired in Court. The defendant has also filed a Transcript of the proceedings that really took place on 18-10-2010 in the court hall. The entire conversation that took place between the learned Judge and the counsel for the defendant as well as the oral evidence tendered by the defendant on oath, are recorded verbatim in the transcript of the proceedings. The transcript runs to about 26 pages and it reflects the active participation of the learned Judge, while recording the oral evidence of the defendant. To be fair to the whole system, the evidence of the defendant had been recorded in extenso, despite the fact that the plaintiff herein did not participate. In other words, the proceedings were not short circuited merely because they were ex parte proceedings. What is contained in the transcript, is an uncensored faithful version of every thing that transpired in Court, except perhaps gestures, yawning, sneezing and the physical movements of persons present in court. Therefore, the contention that there was no application of mind, is uncharitable. As a matter of fact, the questions put by the learned Judge to the counsel for the defendant, before the commencement of the examination of the defendant as a witness, runs to nearly 6 pages. The transcript shows that even in the course of examination of the defendant by his counsel, the Court intervened and asked several questions. Some of the questions related to the employment of the plaintiff and the employment of the defendant. At one stage, the learned Judge had even put a question to the defendant about the reasons for the plaintiff seeking a divorce or moving back to India. When the defendant marked exhibits 23 and 24, which were the affidavits of friends and neighbours, who were aware of the situation and when the counsel asked the defendant to spell out the contents of a few of them, the learned Judge intervened and said that he could read the affidavits. Therefore, the judgment was actually a considered one on merits. (ii) It is seen from the transcript that after the completion of the evidence of the defendant, the counsel for the defendant sought the permission of the Court to make a brief statement of the case. The learned Judge permitted him. Thereafter, a conversation ensued between the learned Judge and the counsel for the defendant. This is recorded in pages 22 to 26 of the transcript. This conversation revolves around (a) the question as to whether it would be a temporary or final order (b) the question as to when the plaintiff was served with the counter claim of the defendant and whether she had sufficient time (to respond) and (c) the question as to whether the time limit for the return of the child could be prescribed in such a manner as to tally with her expected date of return to US in November, as per her original schedule. This conversation between the Judge and the counsel for the defendant shows the extent to which the learned Judge analysed each and every aspect of the matter, in depth. (iii) It is also seen from the transcript that the defendant asked for $ 1,000/- for child support from the plaintiff, but the learned Judge slashed it to $ 600/- per month. Before winding up, the counsel for the defendant seems to have requested the Judge to pass an order that would result in the incarceration of the plaintiff, without the necessity for filing a contempt petition, if she failed to comply with the order for the return of the child. But the learned Judge refused that prayer and said that the defendant had to file a separate petition for that.

17. Thus the proceedings that had taken place on 18.10.2010 before the Superior Court of Cobb County, leaves not an iota of doubt in my mind that despite the plaintiff being absent, the learned Judge applied his mind to each and every detail, small or big, before arriving at the decision. The decision does not appear to be in the nature of ex parte orders that we are familiar with, in this part of the world and the transcript would actually make any of our Judicial Officers feel envious of the time, the facility and the infrastructure available there and the kind of assistance provided to the courts there.

18. Coming to the issue of draft order circulated by the counsel for the defendant, the same appears to be an accepted practice in U.K. and U.S.A. As a matter of fact, in the U.K., ‘Practice Direction 40E-Reserved Judgments’, which was issued to supplement the Civil Rules of Practice Part 40, provides for inviting the views of the parties, whenever a judgment is reserved. Clause 2.1 of those Practice Directions stipulates that where a judgment is to be reserved, the Judge may, at the conclusion of the hearing, invite the views of the parties’ legal representatives as to the arrangements made for the handing down of the judgment. If the judgment will not attract any special decree of confidentiality or sensitivity, the Court may, under Clause 2.3 of those Practice Directions, provide a copy of the draft of the judgment to the parties’ legal representatives by 4.00 P.M., on the 2nd working day before handing down the verdict. Under Clause 2.9, the case will be listed for judgment and the judgment will be handed over thereafter. Under Clause 3.1 of the Practice Directions, the parties are entitled to notify the clerk of the Judge, any proposed corrections to the draft judgment. Under Clause 4.1, the parties must seek to agree to consequential orders, after the circulation of the judgment.

19. The above procedure, of circulating copies of the draft of the judgment, to the parties, even before the pronouncement of the judgment, may be surprising if not shocking, to a conservative mind. But it has the sanction of law in those countries, where the Civil Rules of Practice provide for the same. Therefore, the fact that a draft was circulated, as indicated in the final order dated 1.10.2010 of the Superior Court of Cobb County, does not mean that there was no application of mind. Nor would it mean, that the judgment was not given on the merits of the case, so as to fall within clause (b) of Section 13 of the Code. The decision has been rendered on merits, with respect to each and every issue viz., (i) divorce (ii) permanent custody (iii) visitation (iv) the time for return of the child (v) child support (vi) division of properties (vii) health insurance (viii) marital debts and (ix) alimony. The decision was rendered after considering the pleadings and the evidence of the defendant, which included his oral testimony and 24 documents taken as exhibits. It is relevant to note that despite being an ex parte hearing, the questions put to the defendant as a witness, were not entirely leading questions requiring mono syllable answers. There has been an active participation of the learned Judge throughout the proceedings. Therefore, the contention on the basis of Section 13 (b) CPC, is not well founded.

20. However, the learned counsel for the plaintiff relied upon the following passage from the decision of the Supreme court in Y.Narasimha Rao v. Y.Venkata Lakshmi {(1991) 3 SCC 451}:-

“16. Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the Courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign Court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the Court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the Court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.”

21. The decision in Narasimha Rao arose under extraordinary circumstances. The parties married at Tirupati and the husband filed a petition for divorce first in Tirupati, claiming to be a resident of New Orleans, USA. But subsequently, he obtained a decree of divorce from the Circuit Court of St.Louis County, Missouri, claiming that he was a resident of that State for 90 days preceding the date of filing of the petition. The Supreme court found (i) that the Circuit court assumed jurisdiction on a patently false statement about the residential status and (ii) that it granted a divorce on the ground of irretrievable break down, a ground not available here in India. But in the case on hand (i) it was the plaintiff who invoked the jurisdiction of the Superior court of Cobb County, not once, but twice (ii) the parties were married in USA, as per the laws of the State (iii) the child was born there and was thus a US citizen. Therefore, this is a case, where the plaintiff who fired the first shot, cannot ward off the plea of acquiescence. The plaintiff not only invoked the jurisdiction of the foreign court, but has also benefited by one portion of the final order passed by that court, viz., the portion relating to divorce. As pointed out earlier, she has accepted the decree of divorce granted by that court and is challenging only the portion relating to custody. A person who seeks to retain a benefit, out of a judgment, cannot be allowed to attack the other portions of the judgment on the ground that the decision was not rendered after contest.

22. The learned counsel for the plaintiff next relied upon the decision in International Wollen Mills vs. Standard Wool (U.K.) Ltd {AIR 2001 SC 2134} and contended that since the judgment did not discuss anything about the interest and welfare of the child at all, it cannot be construed as one on merits. But the said decision is of more assistance to the defendant than to the plaintiff. Towards the end of para 29 of the said decision, the Supreme court approved the view of the Patna High court (in Wazir Sahu vs. Munshi Das AIR 1941 Pat 109) to the effect the real test to find out whether it was on merits or not, is to see if it was delivered as a matter of course or by way of penalty for the non appearance of the defendant. No doubt, it was pointed out therein that merely on the basis of the presumption under Illustration (e) of Section 114 of the Evidence Act, an ex parte decree cannot be presumed to be one on merits. Though an ex parte decree may be a decree regularly passed, it may not still be a decree on merits, the Supreme Court held. A foreign judgment would be treated as one given on merits if some evidence had been adduced on behalf of the plaintiff and if the foreign judgment, however brief, was based on a consideration of that evidence. It is only in cases where no evidence was adduced on the side of the plaintiff and yet the Court proceeded to decree the suit merely because of the absence of the defendant, either by way of penalty or in a formal manner that the judgment cannot be considered to be one on the merits of the case. On facts, the Supreme court found in that case that the foreign court had pronounced judgment simply on the basis of the (i) affidavit filed by the Solicitor for the respondent, before service of summons on the appellant and (ii) the affidavit of service filed by the respondent. No affidavit in evidence nor any oral evidence was let in, before the foreign court, in that case and this compelled the Supreme court to hold that it was not a judgment on merits. But in the case on hand, oral evidence was let in and the defendant marked 24 exhibits. Therefore, the case on hand cannot be equated to the case before the Supreme court in International Woollen Mills.

23. The learned counsel for the plaintiff then relied upon a decision of the Punjab High Court in CDJ 1999 PHC 1070 and a decision of the Division Bench of the Delhi High court in Emirates Bank International vs. Vijay Talwar (MANU/DE/ 2799/ 2009). In the case before the Punjab High Court, the court found in para 26 of the decision that there was nothing on record to show that the documents said to have been filed before the London Court were examined by the court. Even the 2 affidavits said to have been filed by the Solicitor before the London court, did not find a mention in the judgment. Therefore, the Punjab High Court came to the conclusion that the judgment was not on merits. Similarly, in the case before the Division Bench of the Delhi High court (Emirates Bank case), two things were borne out, viz., (i) the Dubai court did not even take care to see if service of summons on the defendant had been properly effected or not and (ii) in any case the Dubai court proceeded to decree the claim on the basis of photo copies of documents taken on record without examining any witness. Therefore, the Delhi court followed the ratio in International Woollen Mills (cited supra). In para 16 of its decision, the Delhi High Court extracted the law laid down in International Woollen Mills to the effect that “where no evidence is adduced on the plaintiff’s side and his suit decreed merely because of the absence of the defendant either by way of penalty or in a formal manner, the judgment may not be one based on the merits of the case”. This is exactly the test I have applied to the case on hand and I find that the judgment of the Superior Court of Cobb County, Georgia, was one on merits.

24. I must also point out that there are distinguishing factors between the case on hand and all the 3 decisions relied on by the plaintiff, (one of the Supreme court, the other of the Punjab High Court and the third of the Delhi High Court). They are, (i) while those cases arose either out of execution proceedings or out of suits, filed by persons who secured foreign decrees, for their enforcement in India, the case on hand is by a person who seeks to set aside the foreign decree; and (ii) while in those cases the very service of summons on the defendants before the foreign courts became the subject matter of controversy, it is not so in the case on hand, since the plaintiff herein was the plaintiff before the foreign court also. It was the plaintiff who initiated the proceedings before the foreign court.

25. In Mohamed Kasim vs. Seeni Pakir Bin Ahmed {AIR 1927 Mad 265}, (referred to by the Supreme court in Internationa Woollen Mills), a Full Bench of this Court held that a foreign judgment given on default of appearance of the defendant, on the plaint allegation, without any trial or evidence, is not a judgment given on the merits of the case within the meaning of Section 13 (b). But after considering the said decision of the Full Bench, a Division Bench of this Court held in Rajarathnam vs. Muthuswami Kangani {AIR 1958 Mad 203}, that though a foreign judgment might have been passed ex parte, the decision must be deemed to be on merits, if it was passed on a consideration of the evidence. A similar view was taken by another Division Bench in Sivagaminatha Pillai vs. K.Nataraja Pillai {AIR 1961 Mad 385}, that a decree of a foreign Court, even if passed ex parte, will be binding on the parties thereto and will be conclusive under Section 13, if it was passed on the evidence taken and the decision was on consideration of the evidence.

26. In Ponnuswamy vs. Periasami Pillai {1980 (2) MLJ 155}, this Court was concerned with a foreign decree for recovery of money passed by a District Court at Ceylon, by consent of parties. The main contention raised before this Court was that since the foreign judgment was not rendered on merits, the case would fall under the exception (b) to Section 13. But S.Rathnavel Pandian, J., as he then was, held that “what is conclusive under Section 13 CPC, is the judgment, that is, the final adjudication and not the reasons” and that “the true test for deciding whether a judgment has been given on the merits or not is to see whether it has been given as a penalty for any conduct of the defendant or whether it is based on a consideration of the truth or otherwise of the plaintiff’s case”.

27. Therefore, in as much as the foreign court did not pronounce a verdict merely on account of the absence of the plaintiff, either by way of penalty or in a formal manner, but decided the case on the basis of the oral and documentary evidence let in by the defendant, I have no doubt that it was on the merits of the case. The fact that oral and documentary evidence were let in by the defendant is borne out by the transcript of the proceedings dated 18-10-2010. As pointed earlier, the foreign court, conducted the proceedings very elaborately, questioning the defendant and his counsel on various aspects. The court even rejected some of the prayers made by the defendant. Therefore, there has been an application of mind.

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28. As a last straw, the learned counsel for the plaintiff contended that the application of mind on the part of the learned Judge, to the evidence on record, should be reflected in the judgment itself and that merely on the strength of the transcript of the proceedings, an application of mind to the ultimate decision, cannot be inferred. To buttress his contention, the learned Counsel relied upon the decision in Mohinder Singh Gill vs. The Chief Election Commissioner (AIR 1978 SC 851).

29. But the contention is far fetched. The structure in which a judgment is produced, may vary from person to person and from country to country. What is important is its substance and not form. Unlike in India, the whole proceedings are video or audio recorded in the courts in a few countries. They form part of the records. Once they disclose an active participation by a Judge, in the course of recording of evidence and also while considering the reliefs to be granted, the ultimate decision rendered by him, cannot be said to be without application of mind, merely because all the reasons are not incorporated in the judgment itself. To make a case come within section 13 (b), what is to be seen is whether the decision was on merits or not. I am not sitting on appeal against the foreign judgment. The decision in M.S.Gill relates to orders passed by statutory authorities and it cannot be imported to judgments of courts. Therefore, the first contention that the foreign judgment was not merits, is rejected. PROCEEDINGS OPPOSED TO NATURAL JUSTICE :

30. The next ground of attack is that the proceedings before the foreign court were opposed to natural justice. Since natural justice is something which is normally identified with administrative and quasi judicial authorities, it is necessary to find out the facets of natural justice that are applicable to court proceedings.

31. For a long time, the English Courts regarded natural justice (in relation to foreign judgments) as being confined only to two requirements namely (i) due notice; and (ii) proper opportunity to be heard. As Denman, CJ said in one of the earliest cases, “that injustice has been done is never presumed, unless we see in the clearest light that the foreign law or at least some part of the proceedings of the foreign court are repugnant to natural justice and this has even been made the subject of enquiry in our courts”.

32. Quoting from Cheshire on Private International Law, the Supreme court pointed out in R.Viswanathan (cited supra), that “What the Courts are vigilant to watch is that the defendant has not been deprived of an opportunity to present his side of the case”. Cheshire indicated two cases. The first is that of assumed jurisdiction over absent defendant. Second is that of a litigant, who, though present at the proceedings, was unfairly prejudiced in the presentation of his case to the Court.”

33. But in paragraphs 40 and 41 of the report, the Supreme court indicated a slight deviation from the rigidity of the English rule and held as follows :

“….Whatever may be the content of the rule of Private International Law relating to ‘natural justice’ in England or elsewhere (and we will for the purpose of this argument assume that the plea that a foreign judgment is opposed to natural justice is now restricted in other jurisdictions only to two grounds  want of due notice and denial of opportunity to a party to present case) the plea has to be considered in the light of statute law of India, and there is nothing in Section 13 of the Code of Civil Procedure, 1908, which warrants the restriction of the nature suggested. By Section 13 of the Civil Procedure Code a foreign judgment is made conclusive as to any matter thereby directly adjudicated upon between the same parties. But it is the essence of a judgment of a court that it must be obtained after due observance of the judicial process i.e the court rendering the judgment must observe the minimum requirements of natural justice  it must be composed of impartial persons, acting fairly, without bias, and in good faith, it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case. A foreign judgment of a competent court is conclusive even if it proceeds on an erroneous view of the evidence or the law, if the minimum requirements of the judicial process are assured; correctness of the judgment in law or on evidence is not predicated as a condition for recognition of its conclusiveness by the municipal court. Neither the foreign substantive law, nor even the procedural law of the trial be the same or similar as in the municipal court. As observed by Charwell,J, in Robinson Vs. Fenner (28), “In any view of it, the judgment appears, according to our law, to be clearly wrong, but that of course is not enough : Godard Vs. Gray (29) and whatever the expression ‘contrary to natural justice’, which is used in so many cases, means (and there really is very little authority indeed as to what it does mean), I think that it is not enough to say that a decision is very wrong, any more than it is merely to say that it is wrong. It is not enough, therefore, to say that the result works injustice in the particular case, because a wrong decision always does.” A judgment will not be conclusive, however, if the proceeding in which it was obtained is opposed to natural justice. The words of the statute make it clear that to exclude a judgment under clause (d) from the rule of conclusiveness the procedure must be opposed to natural justice. A judgment which is the result of bias or want of impartiality on the part of a Judge will be regarded as a nullity and the ‘trial coram non judice’ (Vassilades Vs Vassilades (30) and Manik Lal Vs. Dr. Prem Chand (31).” Therefore, the question whether the procedure adopted by the foreign court was opposed to natural justice or not is to be considered in the light of the above principles.

34. But before doing so, I must also take note of the fact that though natural justice was traditionally regarded as being confined only to the requirements of (i) due notice; and (ii) proper opportunity to be heard, the English Courts also made an attempt to expand the scope of the principles of natural justice, in later years, by holding that the court may consider whether there had been a procedural defect such as to constitute a breach of an English Court’s views of substantial justice {Adams Vs Cape Industries PLC (1990 Ch. 433 at 557)}. However, in Cheshire and North’s Private International Law, 13th Edition, the learned Authors have the following to say, on the issue of expanding the concept of natural justice, so as to include the theory of ‘want of substantial justice’ : ‘It opens up a gap between, on the one hand, commercial cases and, on the other hand, cases of recognition of foreign divorces and annulments, where the natural justice defence is expressly confined to instances of want of due notice and opportunity to be heard. “Want of substantial justice was a much criticised concept, and is no longer a basis for the refusal of recognition of foreign divorces, etc.” The use of the concept of substantial injustice in relation to the recognition and enforcement of foreign judgments creates new uncertainty over the ambit of the defence of natural justice. Cases of procedural unfairness which do not involve a lack of due notice or opportunity to be heard would be better dealt with under the defence of public policy.’

35. Apart from the fact that the theory of “want of substantial justice” has been criticised even in England, it did not gain recognition here in India. In Sankaran Govindan Vs. Lakshmi Bharathi {1975 (3) SCC 351}, K.K.Mathew,J pointed out that even if there was any breach of the rule of procedure prevailing in the forum where the proceedings were conducted, that would not be material, as what we have to see is whether the proceedings have been conducted in substantial compliance with the prevailing notions of fair play. Therefore, the allegation of violation of natural justice has to be tested on the touchstone of (i) due service of notice; (ii) opportunity of being heard; and (iii) compliance with the prevailing notion of fair play.

36. In Y.Narasimha Rao vs. Y.Venkata Lakshmi {(1991) 3 SCC 451}, the Supreme court held that what is stated in section 13 (d) of the Code is no more than an elementary principle on which any civilized system of justice rests. But in matters concerning family law, the court held, that this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. Explaining what would be considered to be sufficient compliance with the principles of natural justice, the Supreme court laid down 2 tests. They are: (i) It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the proceedings; and

(ii) If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the cost of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice.

Therefore, in addition to the traditional requirements of (i) want of notice (ii) opportunity of being heard and (iii) compliance with the prevailing notion of fair play (prescribed in Sankaran Govindan), let me also test the contention relating to natural justice, on the touchstone of the principles evolved in Y.Narasimha Rao.

37. As stated elsewhere, the plaintiff pitches her claim under section 13 (d) of the Code on the ground that she did not have notice, either of the intention of the defendant or of the inclination of the Foreign Court to proceed with the final hearing of the counter claim made by the defendant on 18-10-2010 and that therefore, the entire proceedings before the Foreign Court and the Final Order passed therein, without putting the plaintiff on notice of the intention to proceed with the counter claim, were opposed to the principles of natural justice.

38. In order to test the validity of the above contention, we may take note of a few facts. The facts relevant for this issue, on which there is or there can be, no controversy, are as follows:-

(i) The plaintiff and the defendant were earlier married to different persons and those marriages were already dissolved by competent Courts.

(ii) The plaintiff and the defendant entered into matrimony in U.S.A., on 23.9.2005, as seen from the Marriage Certificate, issued by the Probate Court.

(iii) The child was born on 18.5.2007 at Wellstar Cobb Hospital in the Town of Austell. Therefore, the minor child is a U.S., citizen.

(iv) On 7.5.2010, the plaintiff applied for divorce in Civil Action No. 10.1.4230.48, on the file of the Superior Court of Cobb County, Georgia, through her counsel by name Michael E. Manely. The reliefs sought by the plaintiff included a prayer for primary custody of the minor child, as seen from the copy of the petition filed as plaint document No.3.

(v) Within 4 days of filing of the petition for divorce, the plaintiff came to India along with the child on 11/12.5.2010, stayed here for about 10 days and returned on 22.5.2010. The petition was listed for hearing on 24-5-2010, but somehow summons were not served on the defendant till 1-6-2010.

(vi) After the service of summons on the defendant on 1-6-2010, the plaintiff filed a memo on 3.6.2010, into Court for the dismissal of her petition for divorce without prejudice. Till 1-6-2010, the defendant was kept in the dark about such a petition.

(vii) On 26.7.2010, the plaintiff returned to India. From India, she filed a second petition for divorce in Civil Action File No.10.1.8238.48, through the same counsel that she had earlier engaged. Summons on this Civil Action, were served on the defendant on 17.8.2010.

(viii) Immediately, the defendant filed an “Answer and Counter Claim” on 24.8.2010 through a counsel by name Mr.Todd A. Orston, Esq. The reliefs sought for in the Counter Claim were the grant of divorce, primary physical custody of the minor, child support, equitable division of the properties etc.

(ix) On the same day viz., 24.8.2010, the counsel for the defendant served a “Motion for Emergency Hearing” on the counsel for the plaintiff, expressing an apprehension that the plaintiff may refuse to return to the U.S., after service of the copy of the “Answer and Counter Claim”.

(x) The Motion for Emergency Hearing along with the Answer and Counter Claim of the defendant, were served on the counsel for the plaintiff on 25.8.2010, by fax as seen from the copy of the same filed by the plaintiff herself as part of plaint document Nos.23 and 24.

(xi) The plaintiff filed a “Response to Motion for Emergency Hearing” on 9.9.2010. She stated therein that the original case was already scheduled for hearing on 18.10.2010 and that it would be unjust to make her travel to U.S., for an unnecessary Emergency Hearing.

(xii) On the Motion for Emergency Hearing, a “Rule Nisi” was taken on 15.9.2010, for informing the parties that a hearing was scheduled on 5.10.2010 and that the child is to be returned to the jurisdiction of that Court. It was also served on the counsel for the plaintiff. (This Rule Nisi dated 15.9.2010 is filed as plaint document No.25).

(xiii) By a mail dated 21.9.2010 filed as part of defendant’s document No.22 series, the counsel for the plaintiff herein requested the counsel for the defendant herein to withdraw the Rule Nisi issued for Emergency Hearing on 5.10.2010 and also requested for Mediation on 15th October 2010, with a commitment that the plaintiff herein would return to U.S., by that time. The relevant part of the mail dated 21.9.2010 sent by the plaintiff’s counsel to the defendant’s counsel, reads as follows:- “Also, I received your Rule Nisi, scheduling this matter for October 5th. As you may know, on August 31 we scheduled this matter for a Rule Nisi on October 18th. Ms.Thomas had already made arrangements for her return for the week before the hearing to prepare.

I am writing to ask that you consent to the Nisi on the 18th and withdraw the Nisi on the 5th. Additionally, I think it would be beneficial to mediate this matter on the 15th, while Ms.Thomas is here. We would need to find a mediator who could work with our date. Are you available on that day?”.

(xiv) In response to the said mail dated 21.9.2010, the defendant’s counsel sent a mail dated 24.9.2010 (part of defendant’s document No.22 series), making it clear that the defendant was agreeable to withdraw the Motion for Emergency Hearing, if the plaintiff assures to return the child to Georgia for the hearing on 18.10.2010.

(xv) By a mail dated 27.9.2010, the counsel for the plaintiff herein confirmed to the counsel for the defendant that the plaintiff would return to U.S., with the child and that he would like to mediate on 15.10.2010.

(xvi) By a mail dated 28.9.2010, the defendant’s counsel agreed to withdraw the Motion for Emergency Hearing and also agreed to the request for Mediation, on the basis of the assurance given by the counsel for the plaintiff that she would return to U.S.A., with the child.

(xvii) Consequently, by a letter dated 29.9.2010, the counsel for the defendant also made a request to the Staff Attorney of the Court, requesting the Judge to remove the case from the Calendar for 5.10.2010, stating very clearly that it was being done on the basis of the assurance given by the plaintiff’s counsel to return the child for the hearing scheduled on 18.10.2010.

(xviii) It appears that thereafter, the counsel for the plaintiff and the counsel for the defendant also had discussions and a referral was made to Mediation by the ADR Office. This is seen from a letter dated 8.10.2010 sent by the counsel for the plaintiff to the defendant’s counsel, informing him that they (the plaintiff and her counsel) had given a deadline of 11.10.2010 for selecting a Mediator. In this letter dated 8.10.2010, the counsel for the plaintiff asserted that the plaintiff was returning on the 15th and that she would come to the house to stay along with the child. (xix) But on 14.10.2010, the plaintiff herein sent a mail to the defendant. In this mail filed as plaint document No.40, she claimed that the defendant was well aware of their relocation to India and that she would come to U.S., for the hearing of the case on 18.10.2010, if certain assurances were made. The relevant part of the mail, reads as follows:-

“Hence, if you can provide me with a written assurance that I can return to India with Rhea to care of my work, commitments here and Rhea can go back to school without disruption of her classes and that you agree that we can once again come back to the US during thanksgiving as originally planned and during Rhea’s December vacation for a one month period. During Rhea’s vacation in December either she will come to the US or you can choose to be with her in India (this will be your choice), if this can be agreed within 24 hours I will come for the hearing. I believe this is really a fair proposition. If not, I fear you are calling us to just ensure we are trapped in place where I have no family or income or support.” (xx) The above mail dated 14.10.2010 appears to be a sudden twist in the drama. Till 8.10.2010, as it appears from the letter of the plaintiff’s counsel in U.S., the plaintiff had been repeatedly promising to return to U.S., with the child on 15.10.2010. But the mail of the plaintiff dated 14.10.2010, refusing to go over to U.S., unless an assurance, as extracted above was given, was really a bolt out of the blue. (xxi) Eventually, the plaintiff not only failed to return to U.S., with the child on 15.10.2010, but also failed to turn up for the hearing of the case on 18.10.2010.

(xxii) On 18.10.2010, the counsel for the plaintiff informed the learned Judge in the Court of Cobb County, that the plaintiff was dismissing her petition for divorce. Immediately, the defendant who was present with his Attorney, announced that he would proceed with the counter claim. Therefore, the learned Judge proceeded to hear the counter claim. As pointed out elsewhere in this order, the defendant examined himself as a witness and marked 24 exhibits in order to prove his counter claim. Thereafter, the Court passed an order on 1.11.2010, after 13 days of the conclusion of the hearing.

39. The sequence of events narrated above, which are borne out by records reveal the following:-

(i) It was the plaintiff who first invoked the jurisdiction of the Court of Cobb County, by filing a petition for divorce on 7.5.2010, then leaving the country for India on 11.5.2010, but returning to U.S., on 22.5.2010 and later requesting the court to dismiss her petition for divorce on 3.6.2010. The defendant was kept completely in the dark about this first petition, until 1-6-2010.

(ii) It was the plaintiff who invoked the jurisdiction of the Court of Cobb County, for a second time, by filing another petition for divorce on 17.8.2010, even while she was in India. It is relevant to note here that the second petition was filed by the plaintiff when she was in India.

(iii) The plaintiff was aware of the “Answer and Counter Claim” filed by the defendant on 24.8.2010, whereby the defendant sought the dismissal of the plaintiff’s claim apart from seeking divorce and primary physical custody of the child.

(iv) The plaintiff did not choose to file any response to the counter claim made by the defendant on 24.8.2010.

(v) The defendant’s Motion for Emergency Hearing, applied on 24.8.2010, was opposed by the plaintiff through her response dated 9.9.2010. In that “Response to the Motion for Emergency Hearing” filed on 9.9.2010, the plaintiff made it clear that she was due to go over to U.S., for the hearing originally scheduled for 18.10.2010.

(vi) Through her counsel, the plaintiff gave two assurances viz., (A) that she would return to U.S., with the child on 15.10.2010 to participate in the hearing scheduled for 18.10.2010 and (B) that a Mediation could take place through the ADR Centre after her arrival.

(vii) Contrary to the assurances that the plaintiff was giving through her counsel during the period from 9.9.2010 till 8.10.2010, she suddenly demanded an assurance from the defendant, for the first time through her mail dated 14.10.2010. Thereafter, taking umbrage under the said mail, she not only failed to turn up for the hearing on 18.10.2010, but also sought a dismissal of her own petition for divorce, despite being fully aware of the existence of the counter claim.

40. It is interesting to note that the State of Georgia has an Enactment called “Uniform Child Custody Jurisdiction and Enforcement Act”, known in short as “Georgia UCCJEA”. Article 19-9-70 of the said Act, prescribes the procedure for the Court to order a party to a child custody proceeding to appear before the Court with or without the child. Clause (d) of Article 19-9-70 stipulates that if a party to a child custody proceeding, who is outside the State of Georgia, is directed to appear or desires to appear personally before the Court, with or without the child, the Court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.

41. In this case, as pointed out earlier, it was the plaintiff who filed the case before the Superior Court of Cobb County. The defendant filed a response and a counter claim. The date of hearing of the case was fixed as 18.10.2010. From 24.8.2010 till 14.10.2010, the plaintiff maintained that she would return to US with the child before 15.10.2010. She also had a confirmed return journey ticket for 23-11-2010. But on 14.10.2010, she sent a mail to the plaintiff asking for several assurances. On the premise that the defendant did not respond to her mail dated 14.10.2010, the plaintiff did not appear before Court on 18.10.2010. On the contrary, she requested the Court to dismiss her petition for divorce. At the time when she made that request, to dismiss her petition, the plaintiff had an option to make a request to the Superior Court of Cobb County, under Article 19-9-70 (d), to require the defendant to pay reasonable and necessary travel and other expenses for so appearing with or without the child. In other words, the last minute demand made by the plaintiff by her mail dated 14.10.2010 for appearing for the hearing on 18.10.2010, could have been made by her even to the Court under Article 19-9-70 (d). A person who is an Attorney at Law, who invoked the jurisdiction of the Foreign Court, cannot now take advantage of her own mistake in not availing a provision of the local law which was available to her benefit.

42. It is in the background of these facts that we have to see if her allegation that the whole proceedings before the Court of Cobb County, were opposed to the principles of natural justice, is justified or not.

43. Interestingly, the grievance of the plaintiff is not that she did not have due notice of the counter claim itself. Her grievance is that she was not put on notice of the intention of the defendant and the intention of the court to proceed with the hearing of the counter claim.

44. But the said grievance, in my considered view, is wholly unjustified. The petition for divorce filed by the plaintiff and the counter claim made by the defendant, were both slated for hearing on 18.10.2010. Every case is listed before every Court, only with the intention of taking it up for hearing, irrespective of whether it actually happens or not. Therefore, the listing of the case on 18.10.2010 before the Court of Cobb County, was with the intention of taking up both the petition for divorce filed by the plaintiff and the counter claim filed by the defendant. No client is entitled to think that a case will be listed for hearing on one day and that the Court will also put the client on notice of its intention to hear it on that date. Once a case is listed for hearing, on a specified date, with the consent of the counsel on both sides, it reflects the intention of the Court to take it up for hearing. There is no obligation on the part of the Court to put on notice, a party who fails to appear on the appointed day and who also withdraws her claim on that date.

45. On 18-10-2010, when the petition for divorce filed by the plaintiff and the counter claim made by the defendant came up for hearing, the plaintiff’s counsel Mr. Manely was present in court. This is seen from the preamble to the final order dated 1-11-2010. At the commencement of the hearing, the plaintiff’s counsel informed the court of the plaintiff’s decision to have her petition dismissed. Immediately, the counsel for the defendant informed the court that he would proceed with the counter claim. In the course of hearing of the counter claim, the plaintiff’s counsel appears to have walked out of the court hall as he was disengaged by the plaintiff. In the transcript of the proceedings that happened before court on 18-10-2010, (filed as one of the defendant’s document) it is recorded in page no.4 that Mr.Manely left the court saying that he was no longer involved in the case. Therefore, it is clear that the plaintiff’s counsel was very much aware of the intention of the defendant to proceed with the counter claim. The plaintiff cannot now take advantage of her own action in dismissing her claim and disengaging her counsel at the last minute on the date of the hearing and contend that the proceedings were vitiated for want of due notice.

46. Even if the petition for divorce had been filed by the plaintiff in an Indian Court and the defendant had filed a counter claim, our Court would have done the same thing as the Superior Court of Cobb County had done in this case. This is the mandate of the law under Order VIII, Rules 6A to 6G of the Code of Civil Procedure, 1908. Under Rule 6D of Order VIII, CPC, the Court is obliged to proceed with the counter claim, in cases where the suit of the plaintiff is stayed, discontinued or dismissed. Rule 6E goes a step further by entitling the Court to pronounce judgment against the plaintiff in relation to the counter claim, if the plaintiff makes default in putting in a reply to the counter claim made by the defendant.

47. As pointed out earlier, the plaintiff filed the petition for divorce on 17.8.2010. The defendant filed his “Answer and Counter Claim” on 24.8.2010. The Answer and Counter Claim were served on the plaintiff’s counsel along with a Motion for Emergency Hearing. For reasons best known to her, the plaintiff chose to respond to the Motion for Emergency Hearing, but not to the counter claim. Therefore, if the case was before an Indian Court, Rule 6E of Order VIII of the Code, could have been validly invoked, due to the failure of the plaintiff to put up a reply to the counter claim. If really this had happened, the plaintiff would not be heard to allege any violation of the principles of natural justice.

48. The plaintiff, as pointed out by the defendant, is no ordinary litigant, but a legal practitioner, heading a unit of one of the leading law firms of the country. Therefore, she must be deemed to be aware of the consequences of (i) her non appearance before the Court of Cobb County, whose jurisdiction she herself invoked voluntarily, not once but twice and (ii) her dismissal of her petition for divorce, at the last minute, despite the pendency of the counter claim.

49. As pointed out by a Division Bench of this Court, to which I was a party, in Dr.C.Chendroyaperumal v. National Institute of Port Management {2006 (4) MLJ 989}, the principles of natural justice are for thoroughbred horses and not wild horses. Therefore, a person who initiates proceedings before a Court of competent jurisdiction and withdraws it at the last minute, after a counter claim is lodged, can never be allowed to contend that the Court should have put him on notice of its intention to proceed with the hearing of the counter claim. Such a contention can be termed only as an unnatural demand for natural justice. What makes the cry of the plaintiff for natural justice foul, is the fact that even today she seeks to retain a benefit that has accrued out of the very same order that she assails. She has accepted that portion of the order of the American court by which her marriage has been dissolved. Therefore, to term the proceedings before the Court of Cobb County as opposed to the principles of natural justice, is very uncharitable, especially from a litigant who is also a practitioner of law.

50. In any case, the hearing of the counter claim took place on 18.10.2010, when the defendant was examined on oath and 24 documents were marked as exhibits. But the decision of the Court was pronounced only on 1.11.2010. The fact that the hearing of the counter claim had taken place on 18.10.2010 and that the written orders were expected in a few days, was posted by the defendant in the net on 20.10.2010 itself. The plaintiff herself has filed a copy of this mail as her document No.43. Even then, she did not take any steps from 20-10-2010 till 1.11.2010 when the Court pronounced final order. Just as the plaintiff was permitted to file her petition for divorce on 17.8.2010 through her counsel in U.S., even while she was in India, it was possible for her to make her counsel file an application for reopening the hearing, at least after coming to know through the mail dated 20.10.2010, of the hearing that took place on 18.10.2010. The plaintiff did not choose to do it.

51. Now we may look at her conduct after the mail dated 20.10.2010. In response to the mail dated 20.10.2010 sent by the defendant, the plaintiff sent a reply dated 20.10.2010. She has filed a copy of this mail as plaint document No.44. In that mail, she never even whispered that the hearing of the counter claim was proceeded, in violation of the principles of natural justice, without due notice to her. Therefore, her claim that the entire proceedings were opposed to the principles of natural justice, is entirely frivolous.

52. The other limbs of the argument relating to violation of the principles of natural justice, relate to (i) proper opportunity of being heard (ii) notions of fair play and (iii) arrangements to be made to enable a woman to contest the proceedings. These limbs of the contention also have to fail, in view of the fact (i) that it was she who initiated the proceedings, (ii) that she was put on notice of the counter claim as well as a Motion for Emergency Hearing (iii) that she did not choose to reply to the counter claim (iv) that she repeatedly assured the defendant that she would attend the hearing on 18.10.2010 and that a Mediation could also be arranged and (v) that at the last minute, she refused to attend the hearing, but requested her petition to be dismissed. Therefore, a person who was aware of the date of hearing and who was represented by counsel on the date of the hearing (at least for the purpose of getting her petition dismissed), cannot be allowed to contend that proper opportunity of hearing was not granted. What transpired on 18.10.2010 was a matter of choice made by the plaintiff and not a matter of chance. A person who fails to avail the opportunity of hearing, cannot contend that there was no proper opportunity. Therefore, the attack to the foreign judgment under Section 13(d) is bound to fail.

53. Even if the tests prescribed in Y.Narasimha Rao are applied, the plaintiff had a return journey ticket to US, only with which she always assured to return for the hearing fixed for 18-10-2010. Admittedly she had an add-on credit card, for which the payments were to be made by the defendant. In any event, the court, while passing the order dated 1-11-2010, fixed the date for the plaintiff’s return to coincide with the date on which she had a confirmed booking for her return journey. As pointed out repeatedly, the date of hearing 18-10-2010 was not a date fixed at the instance of the defendant in respect of any case independently filed by him. It was a date fixed for the hearing of a case filed by the plaintiff herself. Therefore, the plaintiff cannot take refuge under the dictum of Y.Narasimha Rao, just by relying upon a mail sent on 14-10-2010 to create a record. In paragraphs 20 and 21 of the decision in Y.Narasimha Rao, the court held as follows:- “20. .. .. .. .. ..

The jurisdiction assumed by the foreign Court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

21. The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case.”

The case on hand obviously falls within the exceptions stated above. Moreover, the plaintiff had ample opportunities to take recourse to Article 19-9-70 (d) of Georgia UCCJEA, which I have extracted earlier. Despite the fact that the case was filed by her in the first instance, she could have applied to the American court for remedy under the said Article for payment of the expenses for travel and stay. If the court had refused, she may perhaps be entitled to invoke the tests laid in Y. Narasimha Rao. Since she failed to do it, the challenge to the order on the ground of violation of natural justice should also fail. FRAUD AND MISREPRESENTATION

54. The next ground on which the foreign judgment is assailed is that it was obtained by fraud and misrepresentation by the defendant. In paragraph 29 of the plaint, the plaintiff has claimed that she withdrew her petition for divorce on the bona fide belief that the defendant would also be withdrawing his counter claim. She has claimed that the root cause of all the problems was perceived by the defendant to be her divorce petition and that therefore based upon the representations and assurances, she withdrew the petition. But according to her, the defendant pursued his counter claim and fraudulently obtained a decree.

55. It is contended by the plaintiff in paragraph 34 of the plaint that a misrepresentation was made to the Court by the defendant, as though he was not aware of the plaintiff’s shifting to India. The decision to come to India, according to the plaintiff, was consensual and that therefore, the Court of Cobb County was misled by the defendant by false representations.

56. In Sankaran Govindan (cited supra), K.K.Mathew,J cited De Gray, CJ in The Duchess of Kingston’s case to explain the nature of fraud that would vitiate a judgment. It was pointed out therein that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, it may not be permissible to show that the court was mistaken. However, it could be shown that it was misled. There is a clear distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely that on the merits, the decision was one which should not have been rendered, but that it can be set aside if the court was imposed upon or tricked into giving the judgment. There is a clear distinction between mistake and trickery.

57. To bring out the distinction between a court being mistaken and a court being misled, the Supreme Court referred to English, Canadian and American decisions and thereafter summed up the legal position in paragraphs 31 and 32 as follows :

“Although there is general acceptance of the rule that a foreign judgment can be impeached for fraud, there is no such accord as to what kind of fraud is sufficient to vitiate a foreign judgment. Must it be only fraud which has not been in issue or adjudicated upon by the court which gave the judgment ? Must the court in the subsequent action where fraudulent misleading of the foreign court is alleged refrain from going so far in its search for such fraud as to re-try the merits of the original action ? The wide generality of the observations of Coleridge,CJ in Abouloff Vs Oppenheimer (supra) and of Lindley,J in Vadala vs Lawes (supra) in favour of the vitiating effect of fraud to the utter disregard of the res judicata doctrine certainly departs from the usual caution with which the courts proceed when dealing with a subject, the law of which is still in the making. We have already referred to what Coleridge, CJ said in Abouloff Vs. Oppenheimer, namely that the question whether the foreign court was mislead in pronouncing judgment never could have been submitted to it, never could have been in issue before it and, therefore, never could have been decided by it. This is, generally speaking, true. But it is also axiomatic that the question of credibility of witnesses, whether they are misleading the court by false testimony, has to be determined by the tribunal in every trial as an essential issue, decision of which is a prerequisite to the decision of the main issue upon the merits. A judgment on the merits, therefore, necessarily involves a res judicata of the credibility of witnesses in so far as the evidence which was before the tribunal is concerned. Thus, when an allegation is made that a foreign judgment is vitiated because the court was fraudulently mislead by perjury, and issue is taken with that allegation and heard, if the only evidence available to substantiate it is that which was used in the foreign court, the result will be a re-trial of the merits. It is hard to believe that by his dictum Lord Coleridge, CJ ever intended, despite the abhorrence with which the common law regards fraud, to revert to the discredited doctrine that a foreign judgment is only prima facie evidence of a debt and may be re-examined on the merits, to the absolute disregard of any limitation that might reasonably be imposed by the customary adherence to the res judicata doctrine. Duff,J with his usual felicity put the point thus in MacDonald Vs.Pier (1923 SCR 107, 120-121): ‘One is constrained to the conclusion upon an examination of the authorities that there is jurisdiction in the court to entertain an action to set aside a judgment on the ground that it has been obtained through perjury. The principle I conceive to be this : such jurisdiction exists but in the exercise of it the court will not permit its process to be made use of and will exert the utmost care and caution to prevent its process being used for the purpose of obtaining a re-trial of an issue already determined, of an issue which transivit in rem judicatam, under the guise of impugning a judgment as procured by fraud. Therefore, the perjury must be in a material matter and therefore it must be established by evidence not known to the parties at the time of the former trial.’ As Garrow,J said in Jacobs Vs Beaver (supra) the fraud relied upon must be extrinsic or collateral and not merely fraud which is imputed from alleged false statements made at the trial which were met with counter statements and the whole adjudicated upon by court and so passed into the limbo of estoppel by the judgment. That estoppel cannot be disturbed except upon allegation and proof of new and material facts which were not before the former court and from which are to be deduced the new proposition that the former judgment was obtained by fraud.”

58. It is seen from the statement extracted above, that the supreme court first addressed itself to the question as to whether in an action alleging fraudulent misleading of the foreign Court, the court would refrain from going so far in search of such fraud, as to retry the merits of the original action. Then the Supreme Court pointed out that the fraud relied upon, must be extrinsic or collateral and not merely fraud which is imputed from alleged false statements made at the trial which were met with counter statement and the whole adjudicated upon by Court and so passed into the limbo of estoppel by the judgment. That estoppel, according to the Supreme Court, cannot be disturbed except upon allegation and proof of new and material facts which were not before the former Court and from which are to be deduced the new proposition that the former judgment was obtained by fraud.

59. Similarly, the Supreme Court pointed out in Sathya vs. Teja Singh, that “in order to render a foreign decree subject to collateral attack on the ground of fraud, the fraud in procurement of the judgment must go to the jurisdiction of the Court”. Keeping the principles laid down in Sankaran Govindan and Sathya, if we analyse the facts of the case, it will be clear that the Foreign Court was neither mistaken nor misled by the defendant. On the contrary, it was the plaintiff, who is guilty of misleading the defendant even with regard to the Court proceedings. When the defendant moved a Motion for Emergency Hearing, along with his answer and counter claim on 24.8.2010, the plaintiff managed to make the counsel for the defendant agree not to press for an Emergency Hearing on 5.10.2010 by promising two things viz., (i) that she would return to U.S., along with the child and be present in Court for the hearing and (ii) that there could also be a mediation on 15.10.2010. Going back on the repeated assurances, the plaintiff failed to return to U.S., and also sought the withdrawal of her petition for divorce, at the last minute.

60. The only ground on which the plaintiff alleges fraud is that after having consented for their permanent re-location in India, the defendant misled the Foreign Court as though he was unaware of her re-location. But this would hardly amount to a fraud or misrepresentation. The question as to whether the defendant agreed for the plaintiff’s permanent re-location in India or not, has become a contentious issue. While the plaintiff claims that by consent, she was relocated in India, the defendant disputes it. As a matter of fact, the defendant has been consistent in contending that there was no agreement for permanent relocation.

61. Assuming for a moment, that the plaintiff came to India in July 2010 by consent, for a relocation, there was no necessity for her to file a petition for divorce on 24.8.2010 in the U.S., Court, while she was in India. Even in the petition for divorce filed by the plaintiff, it is not stated that by consent of parties, she had shifted to India permanently. On the contrary, it was stated by the plaintiff in her complaint for divorce that “she was currently vacationing in India”.

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62. Moreover, in the Motion for Emergency Hearing, the defendant made an allegation that the plaintiff took the minor child to India for a vacation with an understanding that she would return the minor child to U.S., at the end of the vacation. In paragraph-7 of the Motion for Emergency Hearing, the defendant specifically pleaded that after reaching India, the plaintiff notified the defendant about her intention to relocate permanently in India. This stand taken by the defendant in his Motion for Emergency Hearing, was stoutly denied by the plaintiff in her response to the Motion for Emergency Hearing. Thus, the question as to whether the parties agreed for the permanent relocation of the plaintiff and the child to India, became a contentious issue.

63. Once an issue becomes contentious, it is for the parties to lead evidence in support of their rival contentions. A party who fails to appear before Court and lead evidence in respect of a contentious issue cannot even accuse the opposite party of misleading the Court and of perpetrating a fraud upon the Court. What is done behind the back of a person, is what would actually amount to fraud. If a person takes a particular stand with regard to a matter in issue, consistently, to the knowledge of another, he cannot be accused of misleading the court, when he takes the same stand in court.

64. As a matter of fact, the transcript of the Foreign Court proceedings filed by the defendant as one of his documents would show that the defendant was honest enough to bring to the notice of the Court, a mistake that had crept in to the transcript. To a question by his counsel, which appears in page 18 of the transcript, the defendant appears to have replied that he was not in Town when the plaintiff actually packed up and left for India. The copy of the transcript was made applicable to the defendant on 16.6.2011. Upon perusal of the same, the defendant found a few mistakes and applied to the Court for correction of the mistakes. One of the mistakes which the defendant pointed out was that he was not in Town when the plaintiff packed up and shifted her property to India and that she used the time when he was out of Town to remove the personal property and that he was in Town when she actually left.

65. It must be remembered that the entire transcript is filed in this case by the defendant and not by the plaintiff. The plaintiff did not even have a copy of the transcript. Therefore, it was possible for the defendant to have left the transcript of the proceedings to remain as such without any corrections. The plaintiff was not even aware of the mistake that had crept in the transcript. Yet the defendant took steps to have the mistakes corrected in the transcript, disclosing the fact that there was no attempt on his part to mislead the Foreign Court.

66. The circumstances under which the plaintiff left U.S., were narrated by the defendant to the Court of Cobb County on the following lines, which itself would disclose that there was no attempt at misleading the Court or playing fraud upon the Court:-

“The first time she ever broke the news of having to want a divorce was April 22nd of 2010. On May 7th she filed a divorce suit in this very august Court but she did not serve the papers until June 1st when I strongly refused her to go back to India.

But once I agreed to a temporary trip of three to four months, she immediately wanted to dismiss her divorce suit on June 3rd of 2010 in this august Court.

And she left for India on June 26th, 2010, with the kid under the real notion that it’s going to be a temporary trip.

But immediately after landing in India, within 18 days she again filed a second divorce suit in this county Court again and sued me, which is the current selection case.

So now, since she is having some concerns of probably not having the facts straight, she is trying to file a dismissal here and kind of like go and file a similar complaint back in India because she feels that it might be a favourable Court for her. And I’m not an Attorney. So I’m literally at the mercy of the justice system here and in India.”

67. Moreover, the actual arrangement reached between the parties, is reflected by a mail dated 18-5-2010. When the plaintiff was in India during the period from 12.5.2010 to 22.5.2010, the defendant sent a mail on 18.5.2010 to the sister and brother-in-law of the plaintiff. A copy of this mail is filed as plaint document No.12. A perusal of this mail shows that when the relationship got strained by the end of April 2010, the plaintiff threatened to return to India with the child. This mail also discloses that attempts were made by the plaintiff’s sister and brother-in-law to arrive at a mediated settlement. The points that the defendant wanted to be part of any amicable settlement, were indicated by him in the said mail, some of which are extracted as under:- ”1. Between May 13th and May 18th, you had several rounds of conversations with Dorothy and suggested the following for both of us to consider.

2. Dorothy will take Rhea to Chennai (Madras) on a round-trip ticket somewhere towards last week of July or first week of August returning back to the US sometime in early January 2011.

3. The US Courts will continue to be the venue and of natural jurisdiction because of Rex’s domicile and residency, notwithstanding the fact that Dorothy will be travelling to Chennai on a temporary experiment. She will continue to be the tax-payer at Cobb-County, Georgia and will continue to own the house and other liabilities, including driving-license and an address.

8. Dorothy will try a temporary assignment/ experiment of working in her Chennai Office of her current employer Kochhar & Company.

9. During this time, she will rent her own apartment and will put Rhea on a temporary play-school. She would want to experiment and see how much it costs for her and Rhea and so she will manage her salary/monies that she will get in India. I offered to send in additional monies from US, if for any reason, there is shortage of monies in Chennai for Dorothy and Rhea.

11. Rhea will be travelling to India, strictly on temporary basis on her current Indian visitor visa. Due to the new Government of India regulations, subsequently to the American terrorist Headley’s case, a visitor to India on tourist visa cannot re-enter India for a minimum period of 2 months and so between now and July last week, Rhea cannot travel to India.

12. Dorothy will file for a ReEntry Permit/Advance Parole with the US Citizenship and Immigration Services to ensure that her 5-6 month stay for the Chennai experiment does not throw her Green-Card into any disarray. Dorothy should make sure this information of the re-entry-permit is shared with me as well.

13. Rex will try his best to visit Dorothy and Rhea in December 2010, as he usually visits India for Christmas.

14. Dorothy will bring Rhea back to the US in January 2011 for at least a minimum of 2 weeks. This way, Rhea will get to visit her friends, her former school-teachers, neighbours and will also be able to spend some quality time in her own great country, the United States, for which she needs nobody’s permission! In other words, Rhea’s citizenship and her inalienable rights should be respected by Dorothy and everybody.

15. Besides, it is during this January 2011, that Dorothy should make up her mind as to whether her Chennai experiment worked or failed. If it failed, she will come back to the US permanently, discarding this temporary experiment in Chennai.

17. Assuming that Dorothy wants to continue the experiment, she will again take Rhea back to India to continue with her experiment with the Re-entry permit she already had and it is around this time in January or February 2011, that Rhea will be having her P10 Card for the first time.

20. On or around April-June 2011, i will try to visit India on a temporary basis to see if both Dorothy an Rex can continue to rear Rhea in India.

21. As part of the mediation brokered, it comes at a tremendous cost to me personally because it totally does not consider my career concerns and ambitions with me having a very good position in the evolving areas of Smart Grid and Smart Meters in the Energy and Power Industry. Yet, I am ready to throw everything and do what is the right thing for my poor 3 year old daughter Rhea’s sake, whose birthday happens to be today! So, I am ready to come as a pauper, throwing everything that I had painfully earned in this great country US  only because I feel it is very cruel to subject Rhea to a divorce and bitter custody fight. I will continue to do everything in my capacity to ensure that Rhea has a smooth childhood. When she grows as a big girl, I want her to know that her Dad tried EVERYTHING just for HER SAKE  gave up everything he painfully assembled, just to spare her of any ordeal.

22. Any conflict at this stage should be resolved through negotiations/mediation and if that should fail, then take legal recourse with the Court of jurisdiction being the US Courts, especially the one with the natural jurisdiction, which will continue to be the Superior Court of Cobb County of the State of Georgia, US because this is where our marriage was solemnized and registered and this is the county that we all (Rhea, Dorothy and I) are residents and Rhea being a US Citizen and potentially around this time-frame. I could be a US citizen as well.

24. Dorothy should resist all attempts to avoid International Parental Child Abduction. This involves, not taking Rhea to a 3rd country from India. As such, she should entrust Rhea’s passport with Prabhu Uncle-Sheela Akka, while in India. Likewise, up until late July 2010/early August 2011, Dorothy should entrust Rhea’s passport with Rex or any other mutually agreeable 3rd party because Dorothy will continue to have Rhea by her side and it is only fair that Rhea’s passport not be with her as well.

26. If at any time, Dorothy refuses to bring back Rhea to her country of citizenship (US) after repeated requests from Rex in the US, then Rex will move the Courts in the US for ex parte custody orders to properly file a complaint with the US State Department for International Parental Child Abduction thereby making Dorothy come to the US to fight in the US Courts to decide on the terms of divorce and custody of Rhea in a fair and legal manner.

68. As stated earlier, the plaintiff was in India from 12.5.2010 to 22.5.2010 when the above mail was sent by the defendant. She returned to US on 22.5.2010 and all the arrangements such as (i) sale of the house (ii) sale of the car (iii) withdrawal of the child from the school (iv) admission of the child in a school in Chennai (v) hiring an apartment in Chennai etc., had taken place only thereafter, partly when she was in US and partly after she came to India by the end of July 2010. If the plaintiff had arrived in India on 26.7.2010, with any respect for the above settlement, she should not have filed a second petition for divorce, within 20 days of her arrival in India, on 16.8.2010, through her counsel. The filing of the petition for divorce on 16.8.2010, shows that all the conditions subject to which the defendant agreed for a settlement, by his mail dated 18.5.2010, were thrown to the winds by the plaintiff. Therefore, the contention of the defendant that his consent was for a temporary relocation, subject to certain conditions, on an experimental basis, appears to be acceptable. This is clear also from another mail dated 26.7.2010 filed as defendant’s document No.16. In para 2 of the said mail, the defendant made it clear, even before the plaintiff left US that he agreed to her going to India only temporarily. In the penultimate paragraph of the same mail, he again reiterated that she could go only temporarily. When the defendant perceived the relocation only as temporary at all points of time and that too subject to certain conditions, his presentation of the case before the foreign Court, on the same perception, cannot by any stretch of imagination be termed as fraudulent or misleading. In any case, the filing of the petition for divorce on 16.8.2010, by the plaintiff, was not the product of any consent. Therefore, the defendant, who was consistent in his understanding and communication, of the nature of the plaintiff’s visit to India along with the child, did not either mislead or play fraud upon the foreign Court. Even in cases where a finding of fact is rendered on the basis of evidence, but such fact is actually not true, the case will not fall under the category of fraud. In T.Sundaram Pillai vs. Kandasamy Pillai {AIR 1941 Mad. 387}, King, J., held that “merely because a plaintiff obtains a decree upon evidence which is believed by the Court, but which in fact is not true, he cannot be stated to have obtained that decree by fraud. The learned Judge further pointed out that there must be fraud connected with the procedure in the suit itself to bring the matter within Clause (e) of Section 13”.

69. In order to establish that by consent of parties, she shifted to India permanently, the plaintiff has brought out the following facts in her pleadings viz.:-

(i) The sale of their house in Atlanta.

(ii) The sale of the plaintiff’s Car in Atlanta.

(iii) The farewell to the child in her school in Atlanta.

(iv) The vetting of 1-131 Form by defendant.

(v) The defendant vetting the lease agreement for the house at Chennai.

(vi) The contribution of the defendant’s parents for the furniture.

(vii) The purchase of the tickets by the defendant for the plaintiff as well as the child.

(viii) The enrolment of the child in a school at Chennai.

(ix) Withdrawal of the child’s medical records from the U.S. Hospital and the shipment of child’s personal facts to India.

70. Though the plaintiff has filed a bill of sale as plaint document No.8 signed by the defendant, in evidence of the sale of the car with the consent of the defendant, all other things pleaded in the preceding paragraph, do not appear to have had the consent of the defendant. This is seen from the following:-

(i) The letter dated 8.6.2010 addressed to the Shreiner Academy for cancellation of the admission of the child, filed as plaint document No.9, contains only the signature of the plaintiff. Though the letter is described as emanating from both the defendant and the plaintiff, it is signed only by the plaintiff.

(ii) Similarly, the Authorisation to Release Health Information, filed on 6.11.2010 (plaint document No.10) shows that the said form was also signed only by the plaintiff and not by the defendant.

(iii) The mail dated 28.5.2010, filed as plaint document No.11, signed by the plaintiff to the defendant, shows that the information regarding withdrawal of the child from the school in U.S., and the registration of the child for admission to a school in Chennai, were passed on by the plaintiff to the defendant just by way of information.

(iv) Form 1-131 is only an application for travel document, which appears to have been obtained with the consent of the defendant. But the necessity for obtaining the said document was to facilitate re-entry of the plaintiff into the U.S., as seen from the document itself, filed as plaint document No.14. Therefore, this has nothing to do with the idea of permanent relocation.

(v) The emails filed as plaint document No.15 relate to air ticket reservations. The payment for the air tickets were made out of the bank account of the defendant. But the air tickets were admittedly round trip tickets and hence they only disclose the belief that the defendant had that the plaintiff would return to U.S.

(vi) The mails dated 21.6.2010, 1.7.2010, 2.7.2010, filed as plaint document No.16, by which the plaintiff informed the defendant of the factum of taking an apartment on rent, are only one sided communications. These communications do not disclose a consensus ad idem between the parties on the issue of permanent relocation.

(vii) The only mails that emanated from the defendant, are dated 18.5.2010, 26.7.2010 and 12.8.2010. They are filed as defendant’s document Nos.12 and 16 and plaint document No.20 respectively. They show (a) the conditions subject to which the defendant agreed to send the child to India and (b) the defendant’s belief that the plaintiff and the child would come back to U.S., on 23.11.2010, the date for which the return journey ticket had been reserved.

71. Therefore, even the documents filed before me by the plaintiff disclose (i) that what was agreed was only a temporary relocation in the first instance (ii) that it was conditional (iii) that within 20 days of her arrival in India, the plaintiff committed a breach of those conditions and moved the foreign court for divorce. If on the basis of the documents filed on both sides, I myself cannot come to a conclusion that the defendant consented unconditionally to the plaintiff’s permanent relocation in India, it is impossible for me to think that the defendant misled the Foreign Court about this issue and obtained an order by fraud or misrepresentation. If there had been a permanent relocation to India, by mutual consent, in July, where was the necessity for the plaintiff to file a petition for divorce and for primary custody of the child, on 16th August, within about 20 days of her arrival in India ?

72. Assuming for a moment that the defendant misrepresented to the Court of Cobb County certain facts, it was not as though the plaintiff did not have any opportunity to expose the falsity of his claim. The plaintiff is an Attorney who was represented by a local Attorney in the case. The plaintiff was aware of the claim made by the defendant about the circumstances under which she moved to India. Therefore, she owed a duty to the Court, if there was actually a misrepresentation on the part of the defendant, to bring it to the notice of the very Court whose jurisdiction was actually invoked by her and not by the defendant. The transcript of the proceedings (page-4) shows that Mr.Manely, the Attorney engaged by the plaintiff was present at the time when the case was called. After informing the Court of the plaintiff’s decision to withdraw her petition, the counsel left. This fact has been recorded by the learned Judge in pages 4 and 5 of the transcript.

73. As an Attorney by profession and as a person who had engaged a local Attorney to represent her, the plaintiff owed a duty to the Court of Cobb County, at least as a matter of professional commitment, to inform the Court, if there was any attempt by the defendant to mislead the Court. The stand taken by the defendant, which is alleged now to be a misrepresentation, was laid bare in the Motion for Emergency Hearing filed by the defendant on 24.8.2010 itself. Therefore, it is not as though the plaintiff was not aware of the representations that the defendant was making before the foreign court. Despite being aware, sufficiently in advance, of the very foundation upon which the defendant proposed to proceed with his counter claim, the plaintiff withdrew her appearance from Court. Therefore, the plaintiff has lost the moral authority to contend that the Court was misled by the defendant through his misrepresentations. Hence the attack to the judgment of the Foreign Court on the ground that it was vitiated by fraud, cannot be sustained.

74. Moreover, it is to be noted that the plaintiff is not attacking the foreign judgment in entirety. The foreign judgment contains several decretal parts, one of which is the dissolution of the marriage of the plaintiff with the defendant. The plaintiff has conveniently chosen to accept this part of the foreign decree and challenges only the portion relating to custody. If the allegation of fraud is sustained, it would bring down the entire edifice built upon a foundation made of fraud. Fraud vitiates all solemn acts and the plaintiff cannot seek to retain one portion which is beneficial to her. Her selective challenge makes her ground of attack extremely weak. Therefore, I do not accept it. WELFARE CONSIDERATIONS

75. Though the case on hand is a civil suit seeking a declaratory relief that the foreign judgment is null and void and unenforceable, Mr.J.Sivanandaraj, learned counsel for the plaintiff contended that since it relates to the custody of a minor child, even if the foreign judgment is taken to be valid, it would at the most serve as a piece of evidence or one of the factors for consideration, in a case of this nature and that the court may still hold an enquiry into the issue of interest and welfare of the child. According to the learned counsel for the plaintiff, all other principles of law would yield to the principle of interest and welfare of the child and that while performing its role of loco parentis, the court is not fettered by other technicalities of law.

76. At the outset, it must be remembered that I am neither dealing with a Habeas corpus petition under Article 226 nor with a petition under the Guardians and Wards Act, 1890. I am dealing with a suit praying for a declaration that a portion of a foreign judgment, unpalatable to the plaintiff, is null and void. In other words, the case on hand does not arise directly under the jurisdiction vested either under Clause 17 of the Letters Patent or under Section 7 of the Guardians and Wards Act,1890. Within the precincts of this heritage structure, every Judge exercises different jurisdictions, some under the Constitution, some on the civil appellate side, some on the ordinary original civil side and so on and so forth. While exercising jurisdiction on one side, it is not open to a Judge to exercise jurisdiction on another side, merely because the High Court is one. My jurisdiction in this case arises out of some of the provisions of the Letters Patent, the rules on the original side of this court and the Code of Civil Procedure. Therefore, I cannot now convert this into a proceeding under the Guardians and Wards Act. Yet, I shall consider this issue also, in view of the fact that the ultimate decision I may render, would affect a minor child directly. I can do so, by treating the issue of interest and welfare of the child as part and parcel of the issue of prima facie case, while considering the prayer for injunction.

77. The extent to which the judgment of a foreign court is to be recognised and/or enforced, has been the subject matter of debate not only in our courts, but also in several jurisdictions for centuries. In England, the need to recognise and enforce foreign decrees was originally conceived from the 17th century onwards on the basis of the theory of comity of nations. Dicey and Morris point out that English Judges feared that if foreign judgments were not enforced in England, English judgments would not be enforced abroad. But, this theory was superseded by what is called the Doctrine of Obligation, which was stated by Parke,B., in Russell vs. Smyth {(1842) 9 M & W 810} and approved by Blackburn, J., in Godard v. Grey {(1870) L.R. 6 Q..B. 139}. Apart from these doctrines, Dicey in England also propounded the theory of vested rights, but even according to the authors of Dicey and Morris, it went out of fashion after his demise.

78. In so far as U.S.A., is concerned, 3 theories were advanced to explain what happens when the courts of one jurisdiction recognise or give effect to the laws of another jurisdiction. They are (i) the Comity theory of Professor Story (ii) the vested rights theory of Professor Beale (similar to the one propounded by Dicey of England) and (iii) the local law theory of Professor Cook.

79. The theory of comity is based on the premise that since a state cannot, by its laws, directly affect or bind property out of its own territory or bind persons not resident therein, the foreign law operates in the forum only at the will or comity of the courts of the forum. Though Justice Cardoza has contended that use of the word ‘comity’ has created problems in that it suggests a discretion unregulated by general principles, Story wrote in his Conflict of Laws as follows: “It would be wholly incompatible with the equality and exclusiveness of the sovereignty of all nations that any one nation should be at liberty to regulate either persons or things not within its own territory. It would be equivalent to a declaration that the sovereignty over a territory was never exclusive in any nation, but only concurrent with that of all nations; that each could legislate for all and none for itself; and that all might establish rules, which none were bound to obey. The absurd result of such a state of things need not be dwelt upon”

80. The theory of vested or acquired rights postulates that it is not the foreign law but the rights created by the foreign law that are enforced. This theory can be said to be similar to, though not exactly the same as, the doctrine of obligations. But this theory came in for heavy criticism and it was pointed out in 65 Yale L.J., 1087 (1956) that “the theory of vested rights has been brutally murdered by Cook, Lorenzen and others, though it still flits ghostlike through many decisions.” The third theory namely the local law theory is based on the premise that whatever effect the law of one state or country may have in another state or country, depends upon the law of the latter; both the right and the remedy are created by the law of the forum.

81. Whatever be the name given to the principle adopted for recognition and enforcement of foreign decrees, they remain mere symbols. The statement made by Katzenbach in Conflict on an Unruly Horse: Reciprocal Claims and Tolerances in Interstate and International Law {65 Yale L.J. 1087 (1956)} is of significance in this regard:

” When a court applies the rules and principles found in the statutes or judicial decisions of another sovereign, it can be said that the court is either enforcing foreign law, enforcing a right created by foreign law or enforcing a right created by its own law which is as nearly homologous as possible to that arising under the foreign law. All we are doing is using different symbols to describe similar judicial behaviour. Unhappily, however, the symbols come freighted with a host of philosophical assumptions, supplementing the inherent tyranny of words” Therefore, there is no single theory which can be said to have gained universal recognition for all time to come. As Deno Van, L.J., said in Formosa vs. Formosa {1962 (3) All ER 419} “Rules of Private International Law are made for men and women-not the other way round-and a nice tidy logical perfection can never be achieved”.

82. Keeping the above theoretical forms in mind, if we come to the Indian scenario, especially with regard to cases that arose out of child custody disputes, it is seen that one of the earliest cases to come up before the Supreme court, was in Sathya Vs. Teja Singh {AIR 1975 SC 105}. Quoting from Cheshire’s Private International Law, the court pointed out in that case that Private International Law is not the same in all countries and that there is no system of Private International Law which can claim universal recognition. The Court also quoted the celebrated writer Graveson to the effect that “almost every country in the modern world has not only its own system of Municipal law, differing materially from those of its neighbours, but also its own system of conflict of laws”. After indicating that we (Indian Courts) cannot adopt mechanically, the rules of Private International Law evolved by other countries, the Supreme Court observed that these principles vary greatly and are moulded by the distinctive social, political and economic conditions obtaining in these countries.

83. Speaking of the peculiar problems of conflict of laws arising in the United States of America, due to the co-existence of 50 States, each with its own autonomous legal system, the Supreme Court pointed out in Sathya, that under Article IV, Section 1 of the American Constitution, full faith and credit is required to be given in each State, to the public Acts, Records and Judicial Proceedings in every other State. Consequently, the validity of a divorce decree granted by a State Court in the United States, is tested in the other States as if it were a decree granted by a foreign Court. Though the acceptance of the validity of a decree granted by one Court, by other Courts, is on the principle of “comity”, the Supreme Court pointed out, relying upon the American author Livermore that comity is a matter for sovereigns and not for Judges and that in deciding whether a decree will be recognised in another jurisdiction, public policy and good morals have to be considered. No country is bound by comity to give effect in its Courts to the laws of another country which are repugnant to its own laws and public policy. To come to the said conclusion, the Supreme Court relied upon the fact that American Courts themselves found it abhorring to accept collusive mail-order divorces granted by Mexican Courts to all and sundry, of whatsoever nationality and domicile. A foreign decree of divorce is denied recognition in American Courts (i) if the judgment is without jurisdiction or (ii) if it is procured by fraud or (iii) if treating it as valid would offend public policy. It appears from this decision that the shift from the “theory of comity of nations” to the “doctrine of obligations” that took place in England even in nineteenth century, was not noted in this or any of the subsequent cases.

84. After quoting Cardozo, J., “we are not so provincial as to say that every solution of a problem is wrong, because we deal with it otherwise at home”, the Supreme Court held that “we shall not brush aside foreign judicial processes unless (not) doing so would violate some fundamental principles of justice, some prevalent conception of good morals, some deep rooted tradition of the common weal”.

85. After Sathya, came Surinder Kaur Sandhu vs. Bax Singh Sandhu {1984 (3) SCC 698}. That case concerned a Sikh couple married in India and shifted to England, where a child was born. The husband was convicted of an offence and was released on probation. After the expiry of the probation, the husband removed the child and brought it to India. The wife obtained an order for the custody of the child, from a Court in England and came to India and approached the High Court for securing the custody of the child. The High Court dismissed the petition, forcing her to file an appeal before the Supreme Court. While allowing the appeal, the Supreme Court pointed out that the modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. The court pointed out that to allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. The court went on to add that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern for the well-being of the spouses and the welfare of the offsprings of marriage.

86. In the next decision, Mrs.Elizabeth Dinshaw vs. Arvind M.Dinshaw {AIR 1987 SC 3}, the issue of custody of a minor child, born of an Indian father and an American mother, came up for consideration. The child was an American citizen and the marriage between the spouses was dissolved by a decree granted by a competent Court in U.S.A. The Court also granted permanent custody to the mother and visitation rights to the father. The father brought the child to India without intimating the mother as well as the Court. When the mother moved the Michigan Circuit Court, a warrant of arrest was issued against the father for unlawfully taking the minor out of the country. Unable to trace the child in her matrimonial home at Pune, the mother moved a Habeas Corpus Petition. While allowing the said petition, the Supreme Court pointed out that whenever a question arises before a Court pertaining to the custody of a minor, the matter is to be decided, not on considerations of the legal rights on the parties, but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. On the ground that the child is an American citizen and that excepting for a few months after being brought to India by a process of illegal abduction by the father, he had spent the rest of his life in U.S.A., the Court allowed the petition. The Court also noted that the child had not taken root in this country and that he is still accustomed and acclimatised to the conditions and environment obtaining in the place of his origin in U.S.A. Relying upon the decision of Willmer, LJ., in Re.H (infants) 1966 1 All ER 886, the Supreme Court pointed out that it is the duty of all Courts in all countries to do all they can to ensure that the wrong doer (the person who removes a child unauthorisedly from one country to another) does not gain any advantage by his wrong doing.

87. Interestingly, the Supreme Court took note of the fact (in Elizabeth Dinshaw) that on account of violation of the order of the Circuit Court, the Court had cancelled the visitation rights granted to the father and had also held him guilty of contempt of Court. Therefore, the Supreme Court directed the father to tender unconditional apology to the same Court, and recorded a hope that the Circuit Court (in U.S.) would take a lenient view, in the best interest of the minor which required the avoidance of complete alienation of the child from the father. The Supreme Court also expressed the hope that the mother of the child would render all assistance to the father, for the withdrawal of the warrants of arrest from the competent Court.

88. In Dhanwanti Joshi vs. Madhav Unde {1998 (1) SCC 112}, the question that fell for consideration was as to whether the removal of the child from U.S.A., to India, contrary to an order of the U.S. Court, disqualified the mother from having the custody of the child. While dealing with the same, the Supreme Court first took note of the decision of the Privy Council in McKee vs. McKee {1951 1 All ER 942}, where Lord Simonds held that in proceedings relating to custody, the welfare and happiness of the infant was of paramount consideration and that the order of a foreign Court in U.S.A., though to be given due weight, was only one of the facts which must be taken into consideration. The Privy Council also pointed out that the order of the foreign Court would yield to the welfare of the child and that comity of Courts demanded not its enforcement, but its grave consideration.

89. After considering the decision of the Privy Council in McKee vs. McKee, the Supreme Court (in Dhanwanti Joshi) also took note of the apparent contradiction between the view of the Privy Council in McKee and the view taken in Re.H (infants), which was relied upon by the Supreme Court in Mrs.Elizabeth Dinshaw. But the Supreme Court pointed out that this conflict between McKee and H. (infants), was resolved by the Court of Appeal in Re.L (minors) {1974 (1) All ER 913}, by ultimately holding that McKee was still the correct law and that the latter decisions revolved around the limited question whether the Court in the country to which the child was removed, could conduct (a) a summary inquiry or (b) an elaborate inquiry on the question of custody. After elaborating on the question as to when summary jurisdiction is to be invoked and when an elaborate inquiry is to be conducted, the Supreme Court also took note of the decision in Elizabeth Dinshaw and held that the general principles laid down in McKee and the distinction between summary and elaborate inquiries as stated in Re.L. (infants) hold good in our country also.

90. Referring to the Hague Convention on Civil Aspects of International Child Abduction 1980, to which India is not a signatory, the Court pointed out that under Article 12 of the Convention, the child is required to be sent back, even if a period of more than one year had lapsed from the date of the removal to the date of commencement of the proceedings, unless it is demonstrated that the child is settled in its new environment. Article 16 of the Convention prohibited the Court of the country to which the child is removed, from going into the merits of the welfare of the child. But Article 12 is made subject to Article 13 and hence, the request for return of the child could be refused, if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position. In so far as non Convention countries are concerned, the law to be followed was summarised by the Supreme Court in para 33 of its decision in Dhanwanti Joshi, to the following effect:- “33. So far as non-Convention countries are concerned, or where the removal related to a period before adopting the Convention, the law is that the Court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration as stated in McKee vs. McKee unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in L. Re. As recently as 1996-1997, it has been held in P (A minor) (Child Abduction : Non-Convention Country), Re : by Ward, L.J. (1996 Current Law Year Book, pp. 165-166) that in deciding whether to order the return of a child who has been abducted from his or her country of habitual residence  which was not a party to the Hague Convention, 1980  the Courts’ overriding consideration must be the child’s welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the child’s return unless a grave risk of harm was established. See also A (A minor) (Abduction: Non-Convention Country) (Re, The Times 3-7-97 by Ward, L.J. (CA) (quoted in Current Law, August 1997, p.13). This answers the contention relating to removal of the child from USA.”

91. In Sarita Sharma vs. Sushil Sharma {2000 (3) SCC 14}, the Court was concerned with a case where in violation of an interim order of the District Court of Tarrant County, Texas, U.S.A., the mother of the child came back to India, along with the children. The father sought a writ of habeas corpus before the Delhi High Court and the same was allowed on the ground that the mother committed a wrong in violating an order of a competent Court in U.S.A. While allowing the appeal, the Supreme Court held that it would not be proper to be guided entirely by the fact that the appellant Sarita had removed the children from U.S.A., despite the order of the Court of that country and that the decree passed by the American Court, though a relevant factor, cannot override the considerations of welfare of the minor children.

92. In Shilpa Aggarwal vs. Aviral Mittal {2010 (1) CTC 359}, the father of the child, who was a permanent resident of U.K., initiated proceedings before the High Court of Justice, Family Division, U.K., on 25.11.2008 for a direction to the mother to return the minor child to the jurisdiction of that Court. Even before the initiation of those proceedings in the English Court, the mother and the child had returned to India on 12.9.2008. The father also came to India on 10th October 2008 but returned to U.K., on 14th October 2008. The English Court passed an order on 26.11.2009, directing the mother to return the minor child to the jurisdiction of that Court. Immediately thereafter, the father filed a writ of habeas corpus before the Delhi High Court for the production of the child and for handing over its custody to him. The Delhi High Court allowed the writ petition and granted 14 days time to the mother to return the child to England. On appeal by the mother, the Supreme Court considered the previous decisions in Elizabeth Dinshaw, Dhanwanti Joshi and Surinder Kaur Sandhu and upheld the view taken by the High Court, which placed greater reliance upon the theory of Comity of Nations and Comity of Judgments of the Courts of different countries. Taking note of the fact that both parents had worked for gain in U.K., and had also acquired permanent resident status in U.K., the Supreme Court found that the High Court had balanced the principle of Comity of Courts and the principle of interest and welfare of the child.

93. V.Ravichandran (Dr)(2) vs. Union of India {2010 (1) SCC 174}, is a unique case where the Court literally launched a woman (child) hunt by directing the Central Bureau of Investigation to trace a small child. A few facts, which actually resulted in the extraordinary situation, of the child being directed to be kept under the custody of the C.B.I., authorities for 2 days, before its production before the Court, are relevant to be noted. The couple in that case got married at Tirupathi and left for United States of America. The child was born in U.S. Within a year of the birth of the child, the marriage broke. Initially, a consent order governing the issues of custody and guardianship was passed by the New York State Supreme Court on 18.4.2005, granting joint custody. The same was modified by an order of the Family Court of the State of New York, on 18.6.2007, by consent of parties. But the mother of the child brought the child to India on 28.6.2007. Thereafter, the father obtained an order from the Family Court of the State of New York, directing the mother to return the child to America. The Family Court also issued child abuse non bailable warrants against the mother. Thereafter, the father filed a writ petition before the Supreme Court of India in September 2007, for the issue of a writ of habeas corpus. Since the mother and the child could not be traced, by the local police of the States of U.P., Chandigarh, Tamil Nadu and Karnataka, the Supreme Court directed the C.B.I., to trace the minor child.

94. After the child was traced and produced before the Court, the Supreme Court considered the matter in great detail, with reference to the law laid down by the English Courts and the Supreme Court in the various decisions cited supra. Thereafter, in paragraphs 29 and 30, the Court indicated the duty of the Court while dealing with such cases, on the following lines:-

“29. While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the Court where the parties had set up their matrimonial home, the Court in the country to which the child has been removed must first consider the question whether the Court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child’s welfare be investigated in a Court in his own country. Should the Court take a view that an elaborate enquiry is necessary, obviously 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. While doing so, the order of a foreign Court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case.

READ  Custody to the Father.

30. However, in a case where the Court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the Court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the Court may leave the aspects relating to the welfare of the child to be investigated by the Court in his own native country as that could be in the best interests of the child. The indication given in McKee vs. McKee that there may be cases in which it is proper for a Court in one jurisdiction to make an order, directing that a child be returned to a foreign jurisdiction without investigating the merits of the dispute relating to the care of the child on the ground that such an order is in the best interests of the child has been explained in L (Minors), In re and the said view has been approved by this Court in Dhanwanti Joshi. Similar view taken by the Court of Appeal in H. (Infants), In re has been approved by this Court in Elizabeth Dinshaw.”

95. After pointing out the choices available to the Court, either to make a summary inquiry or to make an elaborate inquiry, the Supreme Court considered the facts of that case and held that the custody issue did not deserve to be gone into by the Courts in India and that the child should be returned to U.S.A., where the mother would be free to seek a modification of the order passed by the Court in U.S.A. This was despite the fact that by the time the order was passed by the Supreme Court, the child was already in India for 2 years. But while ordering so, the Court directed the father to request the concerned authorities to drop the warrants of arrest issued against the mother. The Court also directed the father not to file or pursue any criminal charges for the violation of the consent order passed in U.S.A.

96. In the latest decision, in Ruchi Majoo vs. Sanjeev Majoo {CDJ 2011 SC 553}, three questions were taken up for consideration by the Supreme Court. The second question was as to whether the Court in India, can decline to exercise jurisdiction on the principle of comity of Courts. This question arose on account of the fact that the father obtained an order for the custody of the child from the Superior Court of California. But the mother obtained an order from the District Court at Delhi under the Guardians and Wards Act, 1890. But the same was over turned by the High Court of Delhi under Article 227 of the Constitution, forcing the mother to file an appeal before the Supreme Court.

97. After pointing out that the recognition of decrees and orders passed by foreign Courts remains an eternal dilemma, the Court held that the validity of such decrees are to be determined in the light of the provisions of Section 13 CPC. The Court also pointed out that simply because a foreign Court has taken a particular view, on any aspect concerning the welfare of the minor, it is not enough for the Courts in this country to shut out an independent consideration of the matter. Objectivity and not abject surrender, the Court held, should be the mantra in such cases.

98. After referring to the 5 previous decisions viz., (i) Sathya vs. Teja Singh (ii) Dhanwanti Joshi vs. Madhav Unde (iii) Sarita Sharma vs. Sushil Sharma (iv) V.Ravichandran vs. Union of India and (v) Shilpa Aggarwal vs. Aviral Mittal, the Supreme Court drew a distinction (in Ruchi Majoo) between cases which arose out of habeas corpus proceedings and cases which arose out of proceedings under the Guardians and Wards Act. It was held by the Court that while the writ Court’s jurisdiction arises in cases where the alleged detenue is within its territorial jurisdiction, the jurisdiction of the Court under the Guardians and Wards Act, is determined by the place where the minor ordinarily resides. Therefore, the Court held that unless the Court in India before which a proceeding is brought, had the jurisdiction to entertain it, it cannot even order the return of the child to the country from where the child was removed.

99. After pointing out the above distinction, the Supreme Court gave 4 reasons for reversing the decision of the Delhi High Court, by which the mother was directed to return the child to U.S.A. One of the reasons is as follows:-

“What needs to be examined is whether the High Court was right in relying upon the principle of comity of Courts and dismissing the application. Our answer is in the negative. The reasons are not far to seek. The first and foremost of them being that ‘comity of Courts’ principle ensures that foreign judgments and orders are unconditionally conclusive of the matter in controversy. This is all the more so where the Courts in this country deal with matters concerning the interest and welfare of minors including their custody. 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. Decisions of this Court in Dhanwanti Joshi and Sarita Sharma’s cases (supra) clearly support that proposition.”

100. Despite holding as above, the Supreme Court did not (in Ruchi Majoo) over turn the law laid down in the previous decisions to the effect (i) that by balancing delicately, the principle of comity of nations and the principle of interest and welfare of the child, the Court must first decide, whether the case warrants a summary inquiry or an elaborate inquiry and (ii) that the Court could also apply the test of closest contact as evolved in Surinder Kaur Sandhu. Apart from reiterating the same principles, the Court also made it clear that the Court exercising powers under the Guardians and Wards Act, can choose to hold a summary inquiry and pass appropriate orders, provided it is otherwise competent to entertain the petition.

101. In Ruchi Majoo, the Supreme Court found (i) that the minor was not removed from the jurisdiction of the American Court in contravention of any orders passed by any American Court, but the father approached the American Court only after the child came to India (ii) that the child was already living in India and pursuing his studies for 3 years in a reputed school in India and (iii) that the child which was aged 11 years, did not evince any interest in returning to U.S., when interviewed. Therefore, on question No.2, the Supreme Court held that the order of the Delhi High Court for the repatriation of the minor to the United States, on the principle of comity of Courts, did not appear to be an acceptable option, worthy of being exercised at that stage.

102. After referring to all the 7 decisions of the Apex Court starting from Surinder Kaur Sandhu, a Division Bench of this Court, in its decision rendered on 11.4.2011, in HCP No.2367 of 2010, held that in that case, it was not proper to exercise a summary jurisdiction to return the child to USA, in view of the fact that the child in question was a female child just aged 3 years and also in view of the fact that the Home Study conducted by the U.S. Consulate in Chennai, found the child to be in a good environment.

103. Therefore, in view of the fact that a note of dissent was not recorded in Ruchi Majoo, on the fundamental principles laid down in Dhanwanti Joshi, which was also approved by a 3 Member Bench of the Apex Court in V.Ravichandran, the following principles emerge:-

(i) This Court should first consider whether an elaborate inquiry on the question of custody is permissible or whether the Court should summarily order the return of the child to the country from where it was removed, leaving it to the Court in that country to investigate all aspects relating to the child’s welfare.

(ii) The question as to whether this Court could summarily order the return of the child to the country from where it was removed, depends upon several factors. One of those factors would be as to whether a competent Court in that other country, was already seized of the dispute between the parties, when the child was removed from that country and whether any order had already been passed by a Court of competent jurisdiction in that other country. If one of the parties to the dispute had deliberately removed himself/herself along with the child, out of the territorial jurisdiction of the foreign Court before which a dispute was pending, in order to escape the consequences of an order that had already been passed or was likely to be lawfully passed by that Court of competent jurisdiction, this Court would normally resort to a summary inquiry, since no Court would extend a helping hand to a person, who tries to escape from the jurisdiction of a competent Court. (iii) Again the question whether a person removed himself/herself, out of the jurisdiction of the foreign Court, deliberately and with a view to escape the consequences of any order that may be passed, is a question that cannot be considered in isolation from the social context. The Court cannot lose sight of the fact that the law and courts, in a few countries (mostly perceived as developed countries) exhibit a cold gender neutrality. Immigrant women from countries like ours, find it very hard to deal with such cold neutrality, especially in an alien soil. In a country like ours, where dependence on someone, right from the time of birth, has been the hallmark of the life of a woman, they do not learn so easily to stand alone independently and fight a legal battle and also eke out a livelihood especially in a foreign land. In their home land, they are better placed to fight a legal battle, for two reasons viz., (i) that at least for some time, they gather the support of their family members and (ii) that the system here is perceived, at least by men, (whether true or not), to be sympathetic rather than maintaining crude neutrality. Even the Convention on the Elimination of All Forms of Discrimination against Women, ratified by India, recognises under Article 4.1 that the adoption by States Parties, of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the Convention. However, those special measures are required to be discontinued, when the objectives of equality of opportunity and treatment have been achieved. Therefore, there is at least a perception, whether it is real or not, that the home turf is safer. But in a foreign country, where litigation is prohibitively costly, it is impossible for an Indian woman to sustain herself and also fight a litigation. Moreover, the normal tendency on the part of an immigrant woman, is to return to India, once the marriage is broken. If she has a child by the time the marriage is broken, she would be left with the hobson’s choice of either coming back to India with the child or to leave the child there and come back alone. The choice of continuing her stay in an alien land, just for the purpose of fighting a child custody case there, appears to be the most horrendous one. This is why the Supreme Court held in Surinder Kaur that it is the duty of the Court to protect the wife against the burden of litigating in an inconvenient forum.

104. Therefore, in my considered view, apart from the 2 tests already laid down by courts, viz., (i) the test for determining whether to hold a summary inquiry or an elaborate inquiry and (ii) the test of closest contact with the child, evolved by the Supreme Court in the various decisions cited supra, the Court should also apply one more test. It is that the Court should look into the status of the woman involved in the case. If the woman involved in the case is incapable of sustaining herself independently in a foreign country and also fighting a child custody case, the Court should be slow to order the return of the child summarily.

105. There is one strong reason for my above conclusion. The various decisions of the Apex Court cited supra, rested their conclusions mostly upon (i) International Conventions and (ii) the Principles of Private International Law as applicable to the Indian context. Every International Convention that touches upon the rights and welfare of the child, automatically touches upon the welfare of its mother also. Article 4 of the Declaration of the Rights of the Child, adopted by the United Nation General Assembly in 1959, not only states that the child shall be entitled to grow and develop in health, but also states that special care and protection should be provided both to him and to his mother. Article 6 states that a child of tender years shall not, save in exceptional circumstances, be separated from his mother.

106. Following the Declaration of the Rights of the Child of 1959, the General Assembly also adopted the Convention on the Rights of the Child in 1989, which entered into force in 1990. Article 9.1 of the Convention stipulated that States Parties shall ensure that a child is not separated from his or her parents against their will, except under certain circumstances. Article 10.2 contains a significant mandate which reads as follows:- “A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under Article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order, public health or morals or the rights and freedoms of others and are consistent with the other rights recognised in the present Convention.”

107. After recognising, under Article 10.2, the right of the child and his or her parents to leave any country, including their own and to enter their own country, the Convention on the Rights of the Child also stipulated under Article 11 (i) that the States Parties shall take measures to combat the illicit transfer and non-return of children abroad and (ii) that to this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.

108. With the above prelude if we take a critical look at all the 7 cases decided by the Apex court, the picture that emerges is quite interesting:-

Case reference

Nature of the proceedings

Special Features

Ultimate result

Surinder Kaur’s case 1984(3)SCC 698

Writ petition

1. original petition filed by mother of the minor child under sec.97 Cr.P.C., was dismissed by Magistrate.

2. She went to England, obtained an order by which the child became the ward of the court in England

3. Thereafter she came back to India and filed a writ petition. It was dismissed by High Court and she went to Supreme court

Held: (i)that the spouses had made England their home and the boy was born there, and so the father cannot deprive English court’s jurisdiction and (ii) that the matrimonial home of spouses was in England and hence there are sufficient ties or contacts with that State, which make it reasonable for English court to assume jurisdiction.

Note: Court also held that it is their duty to protect the wife against the burden of litigating in an inconvenient forum

Therefore, father was directed to hand over custody to mother

Elizabeth Dinshaw’s case AIR 1987 SC 3

Writ of Habeas corpus

1. Marriage in U.S. Mother was American, father Indian. Child born in U.S.

2. A court order dissolving the marriage and dealing with the issue of custody of child, was passed by U.S., court

3. Thereafter the father abducted the child to India and the mother filed habeas corpus

Held : (i) child is an American citizen (ii) child has not taken root in this country (iii) His welfare demands handing over custody to mother (iv) Child’s presence in India is an illegal act which cannot be taken advantage of by father.

Therefore, child was directed to be handed over to mother, to be taken to U.S

Dhanwanti Joshi’s case 1998 (1) SCC 112

Petition under Guardians and Wards Act before Family court

1. Marriage took place in U.S., on 11-6-1982, child born in U.S. On 15-3-1983 and the couple separated on 20-4-1983

2. U.S., court granted divorce on 23-9-1983, but the mother and the child came to India on 20-2-1984

3. Father then obtained visitation rights on 11-4-1984, temporary custody on 30-4-1984 and permanent custody on 28-4-1986

4. Father came to India and filed Habeas corpus, which was dismissed on 15-4-1986, only after which the U.S., court granted permanent custody to him

5. Mother obtained a permanent custody order exparte from Family court. Thereafter father filed another before the Family court and obtained an order. The appeal filed by mother was dismissed for default by Bombay High court and she approached the Apex court

Permanent custody granted to mother and visitation rights to father. He was refused temporary custody as it might result in the child not being returned to India

Sarita Sharma’s case 2000 (3) SCC 14

Habeas corpus

1. Proceedings were first initiated in U.S and interim orders for the care and custody of the children passed from time to time.

2. While exercising visitation rights, mother brought the children to India

3. Father obtained divorce, permanent custody of children and also arrest warrants

4. Thereafter, he came to Delhi and filed a habeas corpus. High court allowed the writ and Supreme court reversed it

Held: (i) Decree of U.S., court is a relevant factor but it cannot override the consideration of welfare of children

(ii) The interest and welfare of the children require a full and thorough inquiry

(iii) the father is an alcoholic

Shilpa Aggarwal’s case 2010 (1) CTC 359

Habeas corpus

1. Matrimonial home set up in Scotland and then moved to England. Child born in U.K., and Holds British passport

2. Mother and child came to India in September 2008 with return tickets, but they did not return

3. So the father obtained an order for the return of the child to the jurisdiction of High Court of Justice, Family Division, U.K., in November 2008

4. Thereafter, the father initiated habeas corpus before Delhi High Court

Held:(i) that the high court was right in balancing the issue of comity of courts and the issue of interest and welfare of the child by directing the child to be returned to U.K.

(ii) having regard to the nationality of the child and parents’ employment in U.K., the English court had the most intimate contact with the issue in question.

Therefore, the Court directed the mother to return the child to U.K., with a further direction to the father to meet the expenses for their travel and stay for a month to enable them to contest the case in U.K

Ravichandran 2010(1)SCC 174

Habeas Corpus

1. Married at Tirupathi, child born in U.S.

2.Mother filed divorce petition in US Court and a consent order passed governing the issues of custody and guardianship. Marriage was also dissolved later.

3. Consent order for custody was later modified by Family Court of New York on 18-6-2007

4. Mother came to India thereafter, breaking those orders, forcing the father to obtain non bailable warrants in U.S., and then filing habeas corpus in Supreme court

Keeping in view the fact (i) that the child is an American (ii) that the parties had already obtained consent orders for custody from the U.S. court (iii) that the child had not developed roots in this country and (iv) that there was nothing on record to suggest that the return of the child was harmful to it, the court ordered the mother to return the child to U.S.

However, the court also ordered (i) that the travel expenses and arrangements for stay of the mother be taken care of by father (ii) that the father shall arrange to have the warrants of arrest dropped and (iii) that he shall not pursue the criminal complaints against her in U.S.

Ruchi Majoo’s case

Proceedings under Guardians and Wards Act

1. Child was a citizen of America.

2. Father obtained a custody order from a U.S., court and a red corner notice was issued on allegations of abduction against the mother.

3. Mother obtained an order for interim custody from the District Court, Delhi in a petition under the Guardians Act, but the same was set aside by the High Court in a revision under Article 227. Mother filed an appeal to Supreme court.

Taking into account the wishes of the child and the fact that the child is settled in India for 3 years, the supreme court held, without overruling the earlier decisions, that the foreign judgment is only one of the several inputs and that the interest and welfare of the child are of paramount consideration. Therefore, the court allowed the District court to proceed with the hearing of the main petition under the Guardians Act

109. A critical analysis of all the above 7 decisions of the Supreme Court would show the following:

(i) In the first two cases viz., Surinder Kaur and Elizabeth Dinshaw, the fathers abducted the children to India and the Supreme Court granted reliefs to the mothers permitting them to take the children to England and U.S., respectively, invoking the principal of Judicial Comity and applying the test of most intimate contact.

(ii) In the next two cases viz., Dhanwanti Joshi and Sarita Sharma, the mothers brought the children to India and the fathers approached the Courts for relief. But the Supreme Court invoked the test of interest and welfare of the children and allowed the mothers to retain the children in India.

(iii) In Shilpa Agarwal and V.Ravichandran, the mothers brought the children to India, but the Supreme Court directed them to return the children to the countries from where the children were removed, invoking the principles of Judicial Comity and the test of intimate contact.

(iv) In the last case viz., Ruchi Majoo, the mother brought the child to India and the father was denied relief by the Supreme Court, holding that the interest and welfare of the child would override other considerations.

110. What is important to note from the above discussion, is the fact that there was unanimity of opinion in all the above 7 decisions, about the principles of law to be followed in such cases. Yet, the application of those principles produced different results, unlike in laboratory experiments, since law is all about humanities and not a science. Of all the above decisions, the decision in V.Ravichandran, was by a 3 Member Bench and the others are by 2 Member Benches.

111. Therefore, in the light of the principles laid down in all the above 7 decisions, let me get into the facts of the case, to find out, where lies the interest and welfare of the child, assuming that it still exists, despite all these disputes.

112. At the outset, it is noted from the pleadings that the plaintiff has not pleaded anywhere that the defendant is disqualified from having the custody of the child. On the contrary, many of the mails exchanged between the parties reflect that the respondent has been a very affectionate and caring father for the child. Though the plaintiff has today projected the defendant as a very bad husband, she had praised him at the earliest point of time when the parting shot was fired by her by a mail dated 22.4.2010. It may be recalled that the plaintiff and the defendant got married on 26.9.2005. The first signs of cracks developing in the relationship, was reflected in the mail dated 22.4.2010 sent by the plaintiff to the defendant. This mail is filed as defendant’s document No.10. The relevant portions of this mail, are as follows:- ‘I want to tell you that these 4 years that I have lived with you has been very meaningful and what we have shared and given into this relationship is something only we both know. You have been a very good husband, a good father and a good head to our family which you have run in the last 4 years. I hope you would also acknowledge that I have never failed in my responsibilities in running this family and ensuring relationships are strongly held. I thank you for every happy moment you have brought into my life in these 4 years. Having said that, in the recent past 5 to 6 months, I was just realizing that I was growing out of this relationship and growing out of you .. I initially thought this is a temporary feeling and that I could curb without realizing that this feeling was only getting stronger.

The most important aspect I would like to add here is you have been a great dad to Rhea and you might not have her in your daily life. It is painful now but it will be the reality that has to be faced. But I more than accept the fact that your right over Rhea is equal to mine in every sense and hence you will have all the freedom to spend enough and more time with your daughter. From my end I will ensure Rhea always knows how much you love her and she will come with open arms and receive you at any stage of her life and that’s a promise. You have the right to blast and curse me and I will keep quite and take it as I probably have no response. I wanted to send you this email so that you have the time after you finish work today to read and digest this heavy truth. We will speak when you are here tomorrow in more detail just that I wont have any answers to most of your questions.

I do have one request  I plead that you please make this as amicable as possible because I want to take back those 4 years of good memories as against the few moments of bitterness. I would want to part ways with some energy to start this new life ahead. Please do this for me and for Rhea. And the only word I would like to conclude this mail with is  I AM SORRY.’

113. The above mail discloses that from the date of marriage viz., 26.9.2005 till the date of issue of the mail viz., 22.4.2010, the plaintiff perceived the defendant as a good husband and a good father. The only reason stated by her for stepping out of the matrimony was ‘that she was growing out of the relationship and growing out of the defendant’. No one can find fault with a person, for growing out of a relationship, especially in these days, when career and ambition tends to overtake family ties and family values. But at the same time, it may not be fair to invent reasons post facto, to justify one’s action in walking out of matrimony.

114. After sending the mail dated 22.4.2010, the next step that the plaintiff took was to file a petition for divorce on 7.5.2010. A copy of the said petition is filed as plaintiff’s document No.3 and defendant’s document No.11. In that petition, the plaintiff claimed that they were in a state of separation from 1.5.2010. Interestingly, the petition for divorce filed by the plaintiff on 7.5.2010, contains a Disclosure Statement, Summons and the Form of Order and Rule Nisi annexed to it. They form part and parcel of the bunch of papers that go with the divorce petition. Unfortunately, the plaintiff has not filed these papers along with her document No.3. But the defendant has filed them. What makes the filing of these documents crucial are (i) that in the column dealing with ‘Family Violence’, the plaintiff has clearly indicated that there was no request for relief from alleged family violence and (ii) that the Form relating to ‘Order and Rule Nisi’ contains a mandate that each party is enjoined and restrained from causing or permitting the minor children of the parties to be removed from the jurisdiction of the Court. This Form relating to Order and Rule Nisi, which contains a prohibition from removing the child out of the jurisdiction of the U.S., Court, was also signed by the Judge on 7.5.2010, upon presentation of the petition for divorce.

115. After filing the petition on 7.5.2010, the petitioner came to India with the child on 11/12.5.2010 and returned to U.S., on 22.5.2010. As seen from the amended Order and Rule Nisi, the Court fixed the date for hearing of the petition for divorce filed by the plaintiff, as 24.5.2010. But the summons was served on the defendant only on 1.6.2010, till which point of time, the defendant was kept in the dark, despite the fact that both of them were living under the same roof. But after service of summons on the defendant on 1.6.2010, the plaintiff withdrew her petition for divorce on 3.6.2010.

116. When the plaintiff was in India during the period from 12.5.2010 to 22.5.2010, the defendant sent a mail on 18.5.2010 to the sister and brother-in-law of the plaintiff. A copy of this mail is filed as plaint document No.12. A perusal of this mail shows that when the relationship got strained by the end of April 2010, the plaintiff threatened to return to India with the child. This mail also discloses that attempts were made by the plaintiff’s sister and brother-in-law to arrive at a mediated settlement. The points that the defendant wanted to be part of any amicable settlement, were indicated by him in the said mail. Portions of this mail have already been extracted in a previous paragraph. Of particular importance is paragraph 21 of the mail dated 18-5-2010. Here, the defendant states that

21. As part of the mediation brokered, it comes at a tremendous cost to me personally because it totally does not consider my career concerns and ambitions with me having a very good position in the evolving areas of Smart Grid and Smart Meters in the Energy and Power Industry. Yet, I am ready to throw everything and do what is the right thing for my poor 3 year old daughter Rhea’s sake, whose birthday happens to be today! So, I am ready to come as a pauper, throwing everything that I had painfully earned in this great country US  only because I feel it is very cruel to subject Rhea to a divorce and bitter custody fight. I will continue to do everything in my capacity to ensure that Rhea has a smooth childhood. When she grows as a big girl, I want her to know that her Dad tried EVERYTHING just for HER SAKE  gave up everything he painfully assembled, just to spare her of any ordeal.

117. Therefore, it is clear that the defendant was ready to do any sacrifice and travel an extra mile for the sake of the child. In contrast to the reason indicated by the plaintiff in her mail dated 22.4.2010, for walking out of the matrimony, the defendant’s mail dated 18.5.2010 showed his anxiety to save the marriage for the sake of the child. Therefore, the concern of the defendant for the interest and welfare of the child, appears to be more than that of the plaintiff.

118. In any event, the fact that the defendant is a good father to the child, is not at all in dispute. When the dice is evenly cast, between the plaintiff and the defendant, on the issue of interest and welfare of the child, the only parameter on which the case on hand could be tested, would be the principles of Private International Law, be it on the theory of comity, on the theory of vested rights or on the theory of local laws. If so done, it will be clear that the child should be returned to the jurisdiction that the plaintiff herself invoked, not once but twice, knowing well the consequences, as an Attorney at Law.

119. Relying upon the Report of the U.S. Consulate, dated 19.4.2011, which portrayed the child to be appearing as healthy, happy, energetic and well cared for, it was contended by Mr.J.Sivanandaraj, learned counsel for the plaintiff that it would not be in the interest and welfare of the child to remove it again from the present conditions. According to the learned counsel, from 26.7.2010 when the child arrived in India, the child is happily settled here at Chennai for the past one year and hence the child should not be uprooted.

120. It is true that the staff of the U.S. Consulate made a home visit on 19.11.2010 and found the neighbourhood in which she lived, to be clean and well kept. They also found the apartment to be well furnished and the school to be one where many American children were studying. But it does not mean that the alteration of the status quo would mean disaster. The child which was born in US in May 2007, lived there for 3 years till July 2010, before she was brought to India. The plaintiff brought the child to India upon certain conditions, reflected in the mail dated 18.5.2010, which I have extracted elsewhere. After arriving in India, the plaintiff filed the petition for divorce in the Superior Court of Cobb County, Georgia, through her counsel there. She also sought for primary custody of the child. It is only after the defendant filed a counter claim and insisted upon the plaintiff returning to U.S., with the child that she withdrew her petition on 18.10.2010. Despite coming to know of the fate of the counter claim within a couple of days, the plaintiff waited till January 2011 to initiate the present original proceedings before this Court. But the defendant has been continuously taking steps without any let up, both before the American Court and before this Court. Therefore, the plaintiff (i) who waited from 17.8.2010 (date of filing of her petition for divorce) till 18.10.2010 to withdraw her petition and (ii) who delayed the initiation of the action before this Court till January 2011, cannot now take advantage of the passage of one year and appeal to the sympathy of this Court on the ground that the child is settled here for the past one year.

121. As pointed out earlier, even according to the plaintiff, the defendant had been a good and caring father for the child. Therefore, in an ideal situation, assuming that there is one, the child should grow up with both of them under one roof. But it is not possible hereafter, since the marriage is already dissolved and the plaintiff has happily accepted that portion of the final order of the American Court. Therefore, it is unavoidable that henceforth one of the parents would have an order of residence (custody) and the other would have an order of contact (visitation) with the child. In the parenting schedule that a Court would now be forced to draw, the Court has to test which of the two parents is better suited to have a residence order.

122. To find an answer to the above question, the plaintiff and the defendant are to be placed in a scale, on certain parameters. If so done, the defendant may have an edge over the plaintiff for one strong reason. As seen from the mails dated 22.4.2010 and 18.5.2010, the decision to walk out of the marriage was that of the plaintiff. The reason to walk out, as stated by her was that she had grown out of the marriage. Though the defendant has made an allegation that the plaintiff has become friendly with another person by name Arun Kumar and that the same was the reason for her walking out of the marriage, I do not wish to get into that question. But the fact remains that in the earliest of the mails dated 22.4.2010, the plaintiff claimed to have grown out of the marriage and requested the defendant to accept the reality. In the later mails, she cited her career prospects as the reason for shifting to India. But after the declaration of war between them, she started accusing the defendant of being a bad husband (not a bad father). Even in the temporary truce that was brought forth through mediation, the plaintiff was not prepared to sacrifice her career prospects. But during the period of temporary truce, the defendant expressed his willingness to make any kind of sacrifice and come down to India, for the sake of the child. Therefore, it is impossible to think that it will not be in the interest and welfare of the child to return the child to U.S., especially at the request of the father who has not only been a good father but also been a person willing to make any sacrifices for the interest and welfare of the child. Hence even on considerations of interest and welfare of the child, I am unable to sustain the plea of the plaintiff for continuing the order of injunction. BALANCE OF CONVENIENCE:

123. In an emotional appeal, Mr.J.Sivanandaraj, learned counsel for the plaintiff, submitted that if the interim order of injunction is vacated, two consequences would follow, viz., (i) that the suit will become infructuous and (ii) that in order to retain the child, the plaintiff will necessarily have to travel to U.S., at the risk of being arrested and detained for violating the orders of the American Court. Once the second consequence follows, the plaintiff would be in prison in U.S., and the defendant would have the permanent custody of the child. This will not be in the interest of the child or the mother. Therefore, the learned counsel appealed that the interim order should not be vacated, in view of the peculiar circumstances of the case.

124. I have pondered over these consequences. But I have two reasons for not being swayed by the emotional appeal. One is that this is something that the plaintiff has invited upon herself. As pointed out by the learned counsel for the defendant, the plaintiff is no ordinary person. She is an Attorney at Law, specialising in Corporate Law and advising a leading firm of Lawyers. She got into matrimony with the defendant at Atlanta, USA, set up her matrimonial home at Georgia, gave birth to the child at Georgia and also ran the office of the Solicitor’s firm at Georgia. She herself invoked the jurisdiction of the American Court, first in May 2010 and next in July 2010. She gave an impression (i) to her lawyers (ii) to the defendant’s lawyers and (iii) to the Court till 18.10.2010 that she would return to U.S., for attending the hearing on 18.10.2010. She went back on her assurances and allowed her petition to be dismissed on 18.10.2010. After things started getting heated up, she approached this Court, for the purpose of setting aside one portion of the judgment of the American Court, even while retaining the other portion. Therefore, however much I wish to, I cannot sympathise with the plaintiff. The reliance placed by the counsel for the defendant in this regard, in the decision of the Supreme Court in Gujarat Bottling Co. Ltd vs. Coca Cola Ltd {AIR 1995 SC 2372}, is well placed. It was held therein that for the grant of an order under Order XXXIX, Rule 1, CPC, the party invoking the jurisdiction of the Court should show that he was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. Therefore, the plaintiff cannot invoke the sympathy of this Court, on the basis of the consequences that would befall upon her, when they were actually invited by her.

125. The second reason is that this is not the first time that a Court is confronted with such a situation. At least in two cases viz., (i) Shilpa Agarwal and (ii) V.Ravichandran, the Supreme Court had to deal with similar circumstances, when the mothers of the minor children were facing the threat of arrest, upon landing in the foreign country, for having violated custody orders. But by issuing certain directions, the Apex Court ensured that disastrous consequences did not fall upon those mothers. Therefore, similar directions could be issued even in this case. As a matter of fact, the learned counsel for the defendant submitted that the defendant would not press the contempt petition and that he would cooperate with the plaintiff in having the contempt petition closed without any damage to the plaintiff, if she returned to U.S., with the child and seek appropriate remedies before the Court whose jurisdiction she invoked.

126. Therefore, the application O.A.No.191 of 2011 is disposed of to the following effect:-

(i) The prayer for interim injunction is rejected.

(ii) Within a week of receipt of a copy of this order, the plaintiff is directed to move the Superior Court of Cobb County which passed the final order dated 1.11.2010, praying for a variation/modification of the said order and also praying for recalling the order passed in the contempt petition. Since the procedure of the Superior Court of Cobb County appears to permit the filing of petitions through counsel, even when the parties are abroad, the petitioner shall move the said Court even from here. In the application so filed, the plaintiff shall tender unconditional apology to the said Court for violating its orders and shall also give an unequivocal undertaking to appear before that Court along with the child, provided the defendant purchases tickets for the plaintiff and the child and also takes care of the expenses for the stay of the plaintiff and the child in U.S., till the proceedings before that Court are concluded. (iii) The defendant shall also move the same Court, either simultaneously or at least within a week of the plaintiff filing an application as per the preceding clause, expressing his willingness not to press the contempt petition against the plaintiff and also undertaking to purchase the air tickets and take care of the expenses of the plaintiff and the child.

(iv) Since the defendant is in U.S., he may get a date fixed by the Court, for the hearing of the application filed by the plaintiff as per the preceding clauses. Once a date is fixed by the Court, for the hearing of the above application, the defendant shall purchase the tickets for the plaintiff and the child to travel to U.S. Once they land up in U.S., the defendant shall provide for their food and shelter and also take care of the expenses for the litigation. (v) To enable the plaintiff to move the Superior Court of Cobb County, Georgia, as per these directions, the defendant is directed not to take any precipitative action. In other words, the defendant shall not remove the child forcibly from the plaintiff’s custody, by taking advantage of the rejection of the plaintiff’s prayer for interim injunction. If in compliance with the directions issued hereunder, the plaintiff files an application before the Superior Court of Cobb County, Georgia, within a week of receipt of a copy of this order, the defendant shall not make any attempt to take away the child from the plaintiff forcibly, till the date fixed by that Court for the hearing of such an application. (vi) In the event of the plaintiff not filing any application before the American Court, within a week of receipt of a copy of this order, it will be open to the defendant to enforce the final order dated 1.11.2010 passed by the American Court in a manner known to law. Similarly, if after filing a petition as aforesaid, the plaintiff fails to appear before the American Court, on the date fixed by that Court, despite the defendant providing the air tickets, it will be open to the defendant to enforce the final order dated 1.11.2010 passed by the American Court. (vii) There will be no order as to costs.

RS SVN

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