SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Sobhan Kodali vs For on 8 February, 2018

HONBLE SRI JUSTICE SURESH KUMAR KAIT AND HONBLE SRI JUSTICE ABHINAND KUMAR SHAVILI

F.C.A.No.372 of 2017

08.02.2018

Sobhan Kodali. ..Appellant

Lahari Sakhamuri…Respondent

For Appellant: M/s.Devalaraju Anil Kumar
P.Sriram, Advocates.

For Respondent:Smt. V.Hima Bindu.

Gist:

Head Note:

? CITATIONS:

1. 2017 SCC 694

2. 2015 (8) SCC 38

3. 2013 SCC Online 10641

4. Civil Appeal No.4435/11 (SC)

5. AIR 2004 KAR 32

6. 2017 SCC Online Del 10593

7. 2006 (90) DRJ 77

HONBLE SRI JUSTICE SURESH KUMAR KAIT
AND
HONBLE SRI JUSTICE ABHINAND KUMAR SHAVILI

F.C.A.No.372 of 2017

JUDGMENT : (Per Honble Sri Justice Suresh Kumar Kait)

Vide the present appeal, the appellant/husband has challenged
the order dated 15.09.2017, passed in I.A.No.591 of 2017 in
G.W.O.P.No.433 of 2017, whereby, the learned Additional Family
Court, Hyderabad, dismissed the application of the appellant filed
under Order 7 Rule 11 of CPC, praying the Court below to reject the
main O.P. on the ground that it is hit by Section 9 of the Guardians
and Wards Act, 1890.

2. The undisputed facts of the present case are that the
respondent/wife went to USA in the year 2004 for her higher studies
and completed her Masters in the year 2006 and secured employment
in the US in January 2007 and her marriage was performed on 14th
March 2008 at Hyderabad with the appellant, who was also residing in
US prior to her marriage. Except for the marriage, the appellant and
respondent are residing in US and pursuant to marriage also, resided
in USA and cohabitated in US and two children, namely, Arthin
Kodali and Neysa Sakhamuri Kodali, born in US on 14th March 2012
and 13th October 2014 respectively. Both of them are admitted in
school at US much prior to the initiation of proceedings before
Additional Family Court at Hyderabad. Both the minor children are
US citizens and are holding US passports. The children are ordinary
residents of Pennsylvania and brought to Hyderabad on 23rd March
2017 and petition was filed by the respondent/wife before the
Hyderabad Court on 12th April 2017.

3. Learned counsel appearing on behalf of the appellant submitted
that the Court below erred in law as well as facts in passing the
impugned order dated 15th September 2017 without considering that
the said proceedings were barred by Section 9 of the Guardians and
Wards Act, 1890 and proceedings were liable to be rejected under
Order 7 Rule 11 (a) (d) of CPC, as there is no cause of action at
Hyderabad. The minor children are born at USA and they are citizens
of USA by birth and ordinary residents of Pennsylvania. Therefore,
merely because the minor children were brought to Hyderabad on 23rd
March 2017, would not confer jurisdiction upon the Family Court at
Hyderabad to adjudicate the case of custody and guardianship of
minor children. The removal of said children from US was on the
pretext to observe holy rituals and condolences of the death of the
grandmother of respondent. Accordingly, the respondent assured to
the appellant that she along with children, will return to US on 24th
April, 2017. Believing the said request, the appellant booked 4 tickets
for respondent/wife, her mother and for two children to go to
Hyderabad and also booked the return tickets for respondent and for
two minor children. The matrimonial home in the present case was
also in US and until stealthy removal of children from US on 23rd
March 2017 to Hyderabad, and as such, it is only the Courts in US,
which are competent to decide the issue of custody and welfare of
minor children as they have the most closest concern and intimate
contact with the issue of care and custody of the minor children. But
the respondent, on the pretext of consoling her mother, ignoring the
paramount interest of minor children who are US citizens, by
depriving their personal rights granted under US laws, having their
custody by virtue of the Ad Interim orders dated 12th April 2017 in
I.A.No.292 of 2017 in the proceedings initiated by her in
G.W.O.P.No.433 of 2017 on the file of Additional Family Court at
Hyderabad and taking undue advantage of said order, she went to the
extent of filing false case under Section 498-A of IPC against the
appellant and his family members.

4. Learned counsel appearing on behalf of appellant further
submitted that the Court below ought to have appreciated the fact that
the respondent had herself invoked the jurisdiction of the Court in US
by filing a divorce-cum-custody petition and equal distribution of the
marital property on 21.12.2016, wherein, it was clearly averred by the
respondent that both the parties are residing in Pennsylvania, US and
primary physical custody of both the children be awarded to the
respondent/wife. Further more, the respondent/wife admitted in her
divorce petition that for the past 5 years, the minor children are
residing with both the appellant and respondent in US and the best
interest and permanent welfare of the said minor children would be
served by awarding the primary custody to the respondent. Therefore,
it was the respondent who invoked the jurisdiction of the US Court
seeking primary physical custody of both the minor children and
having done so and having invoked and acquiesced to the jurisdiction
of the US Court, the respondent/wife ought not to have been even
allowed to file and institute the G W petition, which on the face of
it amounts to abuse of the process of law. Thus, the respondent is
guilty of forum shopping and cannot be allowed to invoke the
jurisdiction of two Courts when admittedly the minor children have
neither been born in India nor are Indian citizens nor are habitual or
ordinarily residents in India or Hyderabad. As such, the Family
Court, Hyderabad did not have any jurisdiction to adjudicate upon the
issue of custody and guardianship of the minor children and the GW
petition ought to have been dismissed for want of jurisdiction under
Section 9 of Guardians and Wards Act, 1890, as the minor children
are never ordinarily residents of Hyderabad.

5. In the counter affidavit filed by the respondent, the marriage,
birth of children and filing of case at Court of Common Pleas of
Lehigh County, Pennsylvania, USA, are not disputed, and as such,
they are not denied. It is further stated that she has initiated process
for divorce and sought for custody of children before the Court
mentioned above, however, she never pursued the case and took it
forward, as it was still at the threshold and nascent stage i.e. at the
stage of counseling on 21.03.2017 and matter was adjourned to
25.05.2017. The respondent herself and the appellant were living
under the same roof in the same house and at that point of time, she
came to know about the sudden demise of her maternal grandmother.
Therefore, she came to India along with children. The appellant, in
fact, has arranged for tickets for them to India on 23rd March 2017
and initially she had no plan to stay back in India. But subsequent
developments had forced her to remain in India and seek relief. She
herself informed the appellant that she would not be returning to US
on 24th April 2017 and requested the appellant to keep the tickets
open so as to enable her to travel back to US along with minor
children. The Family Court at Hyderabad, while granting interim
order, has specifically directed that she should not shift the children
from the jurisdiction of the Court without permission of the Court.
But the appellant, taking advantage of her absence before the Court at
USA, had moved the Court at US for emergency relief and obtained
adverse orders by misleading the Court at USA as the respondent has
wantedly moved away and taken away the children from the
jurisdiction of the Court at USA. When the respondent traveled to
India, there were no orders passed either in her favour or in favour of
the appellant regarding the custody of children or any other relief
sought by her.

6. Learned counsel appearing on behalf of respondent submits that
since the respondent has left the US soil, the orders passed by the US
Court are not binding upon her, as orders are passed in her absence
and when she was not within the jurisdiction of the Court at US. The
settled principle of law that the prime consideration in deciding the
custody of minors is the welfare of minor children as held by the
Bench of Three Judges of the Apex Court in the case of Nithya
Anand Raghavan v. State another , wherein, it is held that the
welfare of minors should be given more importance than the principle
of the liberty of comity of Courts. The said judgment was relied upon
by the Court below. The respondent being the natural mother of the
children, welfare of the children having regard to their ages, lies with
her only. The moment she had decided to stay back in India, it is to
be deemed that they became ordinary residents of Hyderabad within
the jurisdiction of the Court in India. The children are living
wherever the respondent is living and they lived at Hyderabad from
June 2016 to December 2016 and have been living at Hyderabad since
March 2017. The passport of Master Arthin Kodali was due to expire
on 2nd June 2017. When she repeatedly made requests to give consent
for the renewal of passport, the appellant denied the same stating that
he would give consent for renewal after landing in USA.

7. Learned counsel for respondent further submitted that the
respondent had allowed the appellant to have access to minor children
through WhattsApp video calls frequently. As the appellant was
intimidating her and threatening to take away children from her
custody and he has been calling up their common friends stating that
the respondent should withdraw the case filed by her in the Court of
Common Pleas of Lehigh County, Pennsylvania, USA, the respondent
was constrained to move the Court on 12th April 2017 and sought for
interim direction, and in fact, she had intimated the appellant and also
sent a copy of notice and petition to the appellant. In addition to
above, the respondent has been taking good care of the children and
joined both the minor children in Pioneer World School at Kavuri
Hills, Madhapur, Hyderabad and with the help of her parents, she is
taking care and attending to their needs.

8. Learned counsel for respondent further submitted that in
February 2017, as soon as the proceedings were initiated before the
Court of Common Pleas of Lehigh County, Pennsylvania, USA, even
before passing orders in favour of either of them, the appellant has
placed an advertisement in Suleka.com seeking for live-in Indian
nanny to take care of two children aged 2 and 4 and help preparing
meals for kids and before and after school care with clean driving
record for pickup and dropping home which would go to show the
kind of treatment that the minor children will be getting with the
appellant. Learned counsel submits, the minor children would be
adversely affected as the appellant is insensitive to their feelings and
never cared for their well-being. The respondent has not violated any
order of any Court as sought to be projected by the appellant.

9. Learned counsel for respondent further submitted that as the
respondent is born and brought up in India, this country is not an alien
country for her. Whether the respondent has an intention to go back
to USA or not, is to be determined by the trial Court, thus, let the trial
go on. Explanation (g) to Section 7 of Family Courts Act, 1984 gives
right to file suit and proceedings. Thus, there is no bar to file such
proceedings before the trial Court. Section 9 of the Guardians and
Wards Act, 1890 says, if the minor ordinarily resides, whereas,
Section 4 (5)(ii) gives jurisdiction to the District Court where the
Ward for the time being ordinarily resides. Thus, the respondent
has rightly moved the trial Court and the Court at Hyderabad has got
jurisdiction. Thus, the appeal filed by the appellant deserves to be
dismissed on merits and also on maintainability under Section 7 of the
Family Courts Act, 1984, as the present appeal is against an order
passed in an interlocutory application.

10. To strengthen her arguments, the learned counsel for
respondent has relied upon the cases in (1) Roxann Sharma v. Arun
Sharma ; (2) Prakash v. Padma Kumari and (3) Ruchi Manjoo v.
Sanjeev Manjoo .

11. We have heard learned counsel for the parties in length and
perused the material on record.

12. It is not in dispute that the respondent/wife filed divorce
petition at Pennsylvania Court on 28th December 2016, stating that the
minor children were presently residing with both parents at 2085,
Bellflower Lane, Center Valley, Pennsylvania. The best interest of
minor children requires that plaintiff be awarded primary physical and
share legal custody of two minor children. During the past 5 years,
the said minor children resided with the appellant and respondent in
USA. Moreover, the respondent filed Income-Tax returns in USA on
10.04.2017, thus, the children and the respondent were ordinary
residents of USA.

13. However, on 12.04.2017, the respondent filed petition under
Sections 7 and 10 of Guardians and Wards Act, 1890 at Hyderabad
Court. In said petition, it is admitted that she went to USA in the year
2004 for higher studies and she completed her Masters in 2006 and
secured employment with Cytori therapeutics, San Diego, California
in January 2007 and her marriage was performed with the respondent
on 14.03.2008 at Image Gardens, Madhapur, Hyderabad. At the time
of her marriage, the respondent was doing her residency final year,
and as such, respondent had to resign her job and move to Pittsburgh
in order to join her husband as the appellant was yet to complete his
residency. In order to support the family, the respondent took up
employment in precision therapeutics, Pittsburgh, Pennsylvania and
the respondent did his fellowship in cardiology and moved to Lehigh
valley, Pennsylvania in 2011 in order to take up his new job. It is
further admitted that due to irretrievable breakdown of marriage, the
respondent has filed for divorce on the ground of indignities or
irretrievable breakdown of marriage before the Court of Common
Pleas of Lehigh County, Pennsylvania Civil Division against the
appellant and sought for custody of children and permanent alimony,
counsel fee and costs. It is further admitted that the grandmother of
the respondent expired, due to which, on 23rd March 2017, the
respondent had to come to India along with the children. Thereafter,
she filed the petition before the Court at Hyderabad mentioning
therein that the children are presently residing within the jurisdiction
of the Court and the Court at Hyderabad has jurisdiction. It is
specifically stated that though the children were born in USA and are
having a OCI (Overseas Citizen India) and since the parents of the
children are also citizens of India, they are governed by the Indian
law.

14. It is pertinent to note that the learned Court below, after
considering the rival contentions of the parties, framed the issue for
determination, as to whether G.W.O.P.No.433 of 2017 is liable to be
rejected under Order VII Rule 11 of the Code of Civil Procedure. The
trial Court opined that after the enactment of Guardians and Wards
Act, 1890, the Indian Parliament has enacted the Family Courts Act,
1984. Section 7 of the Family Courts Act deals with the jurisdiction.
According to the said Section, the Family Court shall have jurisdiction
in respect of a suit or proceeding in relation to the guardianship of the
person or the custody of, or access to, any minor, as laid down by
explanation (g) to Section 7(1). The words where the minor
ordinarily resides are absent in Section 7 of the Family Courts Act
though they appear in Section 9 of the Guardians and Wards Act,
1890. Section 3 of the Guardians and Wards Act lays down that the
provisions of said Act shall be read subject to the enactment
subsequently passed. It means, Section 7 of the Family Courts Act
prevails over Section 9 of the Guardians and Wards Act, 1890. Thus,
it gives jurisdiction to the Family Court in respect of custody and
guardianship of minor to meet the requirement of interest and welfare
of minor.

15. The object of the Family Courts Act, 1984 is to provide for
establishment of Family Courts with a view to promote conciliation
in, and secure speedy settlement of disputes relating to marriage and
family affairs and for matters connected therewith. Section 7 of the
said Act is regarding the jurisdiction. Explanation (g) of the said
Section is regarding a suit or proceeding in relation to guardianship of
person or the custody of, or access to, any minor. This Section does
not determine the jurisdiction of Guardians and Wards Act, 1890.
However, the learned trial Court has wrongly applied the Section
while rejecting the petition filed by the appellant. Section 4(5)(ii) of
the Guardians and Wards Act reads as under :
in any matter relating to the person of the ward the
District Court having jurisdiction in the place where the
ward for the time being ordinarily resides.

16. Whereas, Section 9 of the said Act reads as under :

Court having jurisdiction to entertain application :–
(1) If the application is with respect to the
guardianship of the person of the minor, it
shall be made to the District Court having
jurisdiction in the place where the minor
ordinarily resides.

(2) If the application is with respect to the
guardianship of the property of the minor, it
may be made either to the District Court
having jurisdiction in the place where the
minor ordinarily resides or to a District
Court having jurisdiction in a place where
he has property.

(3) If an application with respect to the
guardianship of the property of a minor is
made to a District Court other than that
having jurisdiction in the place where the
minor ordinarily resides, the Court may
return the application if in its opinion the
application would be disposed of more justly
or conveniently by any other District Court
having jurisdiction.

17. In the judgment of Karnataka High Court in Mr.Abraham
G.Karimpanal others v. Nil , in Paras 13, 17, 18 19, it is held :

13. The words ‘ordinarily resides’ fell for interpretation of
the Apex Court and High Courts in large number of
cases under various statutes. In SMT. JEEWANTI
PANDEY’s case (supra), the Supreme Court, dealing
with a situation where jurisdiction of a Court was
based on ‘the ground of residence’ has observed in
paragraph-12 as under:

“12. In order to give jurisdiction on the ground
of ‘residence’, something more than a temporary stay
is required. It must be more or less of a permanent
character, and of such a nature that the court in which
the respondent is sued, is his natural forum. The word
‘reside’ is by no means free from all ambiguity and is
capable of a variety of meanings according to the
circumstances to which it is made applicable and the
context in which it is found. It is capable of being
understood in its ordinary sense of having one’s own
dwelling permanently, as well as in its extended sense.
In its ordinary sense ‘residence ‘is more or less of a
permanent character. The expression ‘resides’ means
to make an abode for a considerable time; to dwell
permanently or for a length of time; to have a settled
abode for a time. It is the place where a person has a
fixed home or abode. In Webster’s Dictionary, ‘to
reside’ has been defined as meaning ‘to dwell
permanently or for any length of time’, and words like
‘dwelling place’ or ‘abode’ are held to be synonymous.
Where there is such fixed home or such abode at one
place the person cannot be said to reside at any other
place where he had gone on a casual or temporary
visit, e.g.. for health or business or for a change. If a
person lives with his wife and children, in an
established home, his legal and actual place of
residence is the same. If a person has no established
home and is compelled to live in hotels, boarding
houses or houses of others, his actual and physical
habitation is the place where he actually or personally
resides.”

17. The principles stated above and the case law noticed
would not leave us in doubt that while determining the
jurisdiction of a Court to entertain the application
under Section 7 of the Act on the ground of residence,
what is material is actual residence of the minor at the
commencement of the proceedings and not a legal or
constructive residence of such minor unless where an
artificial residence is created with bad faith. In the
instant case, admittedly, the minor Aadya Teresa has
been in the foster-care of the appellants 1 and 2 with
effect from 11.08.2002 in a place which admittedly
conies under the territorial jurisdiction of the Family
Court at Bangalore. In an almost similar facts-
situation, a learned Single Judge of this Court in the
case of GOPALA KRISHNA BENGERI (Supra) held
that the Bangalore Court has jurisdiction to entertain
the application filed under Section 7 of the Act.

18. Section 4(5) of the Act defines the word “Court”.
According to the definition, the word “Court” for the
purpose of the Act is the District Court having
jurisdiction to entertain an application under the Act
for an order appointing or declaring a person to be a
guardian of a minor in respect of his person or
property. The Family Court Act, 1984, under Section
7, lays down that a family Court shall have and
exercise all jurisdiction exercisable by any District
Court or any subordinate civil Court under any law for
the time being in force in respect of suits and
proceedings of the nature referred to in the
Explanation which, inter cilia, includes, according to
Clause (g) a suit or proceeding in relation to the
guardianship of the person or the custody of, or access
to, any minor. Section 8 of the Family Court Act,
specifically lays down that where a family Court has
been established for any area, no District Court or any
subordinate Civil Court referred to shall, in relation to
such area, have or exercise any jurisdiction in respect
of such suits or proceedings referred to in the
Explanation which includes Clause (g). In the matter
of Ashraya, this Court held that the proceedings for
appointment of guardian of a child, even if the
petitioner is a foreigner and the child concerned is an
orphan or destitute, are proceedings of the nature
falling under Section 7(1) Explanation Clause (g) of
the Family Courts Act, 1984 and the family Court
alone has the jurisdiction in the matter. Therefore, the
Family Court though established under the Family
Courts Act, 1984, has jurisdiction of the District Court
conferred on that Court by the Act. In other words, the
Family Court is the District Court for the purposes of
the Act.

19. By a careful reading of the order of the Family Court
impugned in this appeal, it appears that the Family
Court was also influenced in the decision-making by
the fact that the Scrutiny Officer, Karnataka State
Council for Child Welfare, has opined that it would
have been appropriate for the Scrutinizing Agency in
Tamilnadu to undertake the scrutiny of the facts stated
by the appellants in their petition and to make
recommendation. There is no warrant for the Court to
doubt the impartiality or efficacy or integrity of the
Scrutiny Officer in Karnataka State in getting the
required information and particulars which may have
bearing on the decision-making. Be that as it may, the
subjective opinion of the Scrutiny Officer, Karnataka
State Council for Child Welfare can never be a
determinative factor in deciding the jurisdiction of the
Family Court to entertain the petition of the appellants
filed under Section 7 of the Act. The jurisdiction of the
Family Court has to be decided in the premise of the
definition of ‘the Court’ in Section 4(5) of the Act and
the provisions of Section 9 of the Act. If a Family
Court before which an application is made
under Section 7 of the Act finds that the minor whose
guardianship is sought in the application, ordinarily
resides within its territorial jurisdiction, such Family
Court is bound to entertain the application and decide
that application on merit in accordance with law. The
Court cannot refuse to exercise the jurisdiction
under Section 7 of the Act on grounds of expediency or
convenience or propriety. Jurisdiction of a Court is
determined by law and not by considerations of
expediency or convenience or choice of the parties
who invoke the jurisdiction of such Court.

18. In Jasmeet Kaur v. Navtej Singh , a Division Bench of Delhi
High Court held in paragraphs 19 to 23, 32, 33, 36 37 as under :

19. To examine the maintainability of the guardianship
application before the competent Court vested with
jurisdiction, one must first refer to Section 9 of the
GW Act, which states as follows:-

“9. Court having jurisdiction to entertain application:-
(1) If the application is with respect to the
guardianship of the person of the minor, it shall be
made to the District Court having jurisdiction in the
place where the minor ordinarily resides.
(2) If the application is with respect to the
guardianship of the property of the minor, it may be
made either to the District Court having jurisdiction in
the place where the minor ordinarily resides, or to a
District Court having jurisdiction in a place where he
has property.

(3) If an application with respect to the guardianship
of the property of a minor is made to a District Court
other than that having jurisdiction in the place where
the minor ordinarily resides, the court may return the
application if in its opinion the application would be
disposed of more justly or conveniently by any other
District Court having jurisdiction.” (emphasis added)

20. Thus, the requirement of Section 9 is that for an
application with respect to the guardianship being
maintainable before the District Court, it is a
prerequisite that the minor must ordinarily reside
within the jurisdiction of the said Court.

21. The expression “ordinarily resident” used in Section 9
of the GW Act has a connotation that signifies
something more than a temporary residence. The said
expression must be given its natural and literal
meaning. On this aspect, we need not travel beyond the
authoritative decision of the Supreme Court in the case
of Ruchi Majoo (supra), where one of the questions
that had fallen for determination was the legal validity
of the judgment of the High Court impugned therein,
dismissing a petition filed by the mother for the
custody of the minor child on the ground that the
courts at Delhi were not vested with the jurisdiction to
entertain the same. In the said context, the Supreme
Court had first examined the definition of the words,
ordinarily? and resides? in Black?s Law
Dictionary and Websters Dictionary and based on a
conspectus of case law on the interpretation of the
expression coined by joining two words, in the cases
of Annie Basant vs. Narayaniah (reported as AIR 1914
PC 41), Jagir Kaur and Anr. vs. Jaswant
Singh (reported as AIR 1963 SC 1521), Kuldip Nayar
and Ors. vs. Union of India and Ors. (reported as 2006
(7) SCC 1), Bhagyalakshmi and Anr. vs. K.N.
Narayana Rao(reported as AIR 1983 Mad 9), Aparna
Banerjee vs. Tapan Banerjee (reported as AIR 1986
PH 113), Ram Sarup vs. Chimman Lal and Ors.
(reported as AIR 1952 All 79), Vimla Devi vs. Maya
Devi and Ors. (reported as AIR 1981 Raj. 211) and In
Re: Giovanni Marco Muzzu and Ors. (reported as AIR
1983 Bom. 242), had ultimately opined that the
question whether one is ordinarily residing at a given
place, is dependent on the intention of the parties to
make that place ones? ordinary place of abode.

22. It will be profitable to refer to the following
observations made by the Supreme Court in the
captioned case, on the aspect of determination of
jurisdiction of the court, in cases filed under Section 9
of the GW Act:-

“40. In cases arising out of proceedings under the
Guardians and Wards Act, the jurisdiction of the Court
is determined by whether the minor ordinarily resides
within the area on which the court exercises such
jurisdiction. There is thus a significant difference
between the jurisdictional facts relevant to the exercise
of powers by a writ court on the one hand and a court
under the Guardian and Wards Act on the other.
Having said that we must make it clear that no matter
a court is exercising powers under the Guardian
and Wards Act it can choose to hold a summary
enquiry into the matter and pass appropriate orders
provided it is otherwise competent to entertain a
petition for custody of the minor under Section 9(1) of
the Act. This is clear from the decision of this Court
in Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC
112, which arose out of proceedings under the
Guardian and Wards Act. The following passage is in
this regard apposite:

“30.We may here state that this Court in Elizabeth
Dinshaw v. Arvand M. Dinshaw(1987) 1 SCC 42 while
dealing with a child removed by the father from USA
contrary to the custody orders of the US Court
directed that the child be sent back to USA to the
mother not only because of the principle of comity but
also because, on facts – which were independently
considered – it was in the interests of the child to be
sent back to the native State. There the removal of the
child by the father and the mother’s application in
India were within six months. In that context, this
Court referred to H. (infants), In re (1966) 1 All ER
886 which case, as pointed out by us above has been
explained in L (Minors) In re (1974) 1 All ER 913, as a
case where the Court thought it fit to exercise its
summary jurisdiction in the interests of the child. Be
that as it may, the general principles laid down in
McKee v. McKee (1951) 1 All ER 942 and J v.

C (1969) 1 All ER 788 and the distinction between
summary and elaborate inquiries as stated in L.
(infants), In re (1974) 1 All ER 913 are today well
settled in UK, Canada, Australia and the USA. The
same principles apply in our country. Therefore
nothing precludes the Indian courts from considering
the question on merits, having regard to the delay from
1984 – even assuming that the earlier orders passed in
India do not operate as constructive res judicata.”

41. It does not require much persuasion for us to
hold that the issue whether the court should hold a
summary or a detailed enquiry would arise only if the
court finds that it has the jurisdiction to entertain the
matter. If the answer to the question touching
jurisdiction is in the negative the logical result has to
be an order of dismissal of the proceedings or return
of the application for presentation before the court
competent to entertain the same. A court that has no
jurisdiction to entertain a petition for custody cannot
pass any order or issue any direction for the return of
the child to the country from where he has been
removed, no matter such removal is found to be in
violation of an order issued by a court in that country.
The party aggrieved of such removal, may seek any
other remedy legally open to it. But no redress to such
a party will be permissible before the Court who finds
that it has no jurisdiction to entertain the
proceedings.”(emphasis added)

23. It clearly emerges from the above discussion that once
the answer to the question relating to jurisdiction is
not in the affirmative, then, the inevident conclusion is
that such a proceeding must terminate forthwith and
the guardianship petition has to be returned for being
presented before the competent court vested with the
jurisdiction to entertain the same.

32. We may also advert to the Hague Convention of
25.10.1980, which deals with the “Civil Aspects of
International Child Abduction” and the Convention of
19.10.1996, which deals with the “Jurisdiction,
Applicable law of recognition, Enforcement and Co-
operation in respect of parental responsibility and
Measures for the protection of children in
International situations”. As on 02.08.2017, 98
countries are parties to the 1980 Convention and as on
4.9.2017, 46 countries are parties to the 1996
Convention. India is not yet a signatory to either of the
Conventions. The said Conventions have declared that
in cases of child removal/abduction by one parent, the
courts of the country where the child has his/her
habitual residence, are best placed to make long-term
decisions relating to the child?s future welfare. It
would be apposite to refer to Article 3 of the 1980
Convention, which declares removal/retention of a
child to be wrongful where “(a) it is in breach of rights
of custody attributed to a person, an institution or any
other body, either jointly or alone, under the law of the
State in which the child was habitually resident
immediately before the removal or retention; and (b)
at the time of removal or retention those rights were
actually exercised, either jointly or alone, or would
have been so exercised but for the removal or
retention…………”

33. India may not be a signatory to the aforesaid Hague
Conventions, but the underlying salutary principles
enunciated therein were adopted by the Supreme Court
in the case of Surinder Kaur v. Harbax Singh reported
as (1984) 3 SCC 698, wherein it was observed as
below:-

“10. ………..The modern theory of Conflict of Laws
recognizes 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….

Ordinarily, jurisdiction must follow upon
functional lines. That is to say, for example, that
in matters relating to matrimony and custody,
the law of that place must govern which has the
closest concern with the wellbeing of the
spouses and the welfare of the offspring of
marriage. The spouses in this case had made
England their home where this boy was born to
them. The father cannot deprive the English
Court of its jurisdiction to decide upon his
custody by removing him to India, not in the
normal movement of the matrimonial home but,
by an act which was gravely detrimental to the
peace of that home. The fact that the
matrimonial home of the spouses was in
England, establishes sufficient contacts or ties
with that State in order to make it reasonable
and just for the Courts of that state to assume
jurisdiction to enforce obligations which were
incurred therein by the spouses. [See
International Shoe Company v. State of
Washington, 90 L. Ed. 95 (1945), which was not
a matrimonial case but which is regarded as the
fountainhead of the subsequent developments of
jurisdictional issues like the one involved in the
instant case.] It is our duty and function to
protect the wife against the burden of litigating
in an inconvenient forum which she and her
husband had left voluntarily in order to make
their living in England, where they gave birth to
this unfortunate boy.” (emphasis added)

36. At the cost of repetition, we may state that the parties
in the case at hand are both highly educated
professionals, who are well placed in life. They had
elected to leave the Indian shores and travel to USA as
adolescents, much before their marriage had taken
place. They made a life in USA, acquired professional
degrees there, met each other and formalized their
matrimonial alliance in that country. They elected to
set up a joint dental practice and their matrimonial
abode in USA and rear their offspring in that
environment. Thus, in every which way, the conduct of
the appellant and the respondent amply demonstrates
that they had abandoned their domicile of origin.
Simply because a marital discord took place between
the appellant and the respondent later on, which made
her flee from USA and seek refuge with her parents in
India, alongwith her children, cannot be a ground for
her to claim permanent custody of the children within
the legal system of this country. The expression,
“ordinarily resides” clearly conveys a place of
permanent abode of the minor children, which in this
case, is USA and there is no manner of doubt that they
are not ordinarily residing in Delhi, as contemplated
in Section 9 of the GW Act.

37. In our opinion, the conclusion arrived at in the
impugned judgment is amply backed by valid
reasoning and is inconsonance with the law on the
subject. The learned Family Court has correctly
analysed and appreciated the facts of the case and we
are in agreement with the view taken that the US law is
applicable to the parties for the relief of custody of the
children and the courts in India lack the jurisdiction to
entertain the case. Accordingly, the impugned
judgment is upheld and the present appeal is dismissed
as meritless alongwith the pending applications, while
leaving the parties to bear their own expenses.

19. In Paul Mohinder Gahun v. Selina Gahun , a learned Single
Judge of Delhi High Court held in paras 21 and 32 as under :

21. If applied to the facts of the present case one would
find similarity. All the parties involved in the present
case including the minor are citizens of Canada. The
child had been initially for five years staying in
Canada before she was stealthily removed to India on
the pretext of only a visit. The Supreme Court thus held
that the assumption of jurisdiction by another State
would result in encouraging forum shopping. The
matrimonial home in the present case is also in
Canada up to 2003.

32. The parties in the present case were equally well
placed and both employed. It is the normal wear and
tear of marriage which has taken a large toll in the
present case. The respondent stealthily removed the
child to India without disclosing her intention that her
short trip would actually be a one way ticket. The child
spent five formative years in Canada and the last 21/2
years in Delhi due to the petition filed by the
respondent within about a month of her decision to
stay back in Delhi. The child at the age of about 8
years is in a boarding school. In my considered view,
the child cannot be said to be one who “ordinarily
resides” in Delhi when the petition was filed nor are
the interests of the child adversely affected if the
Guardian Court determine the issue of custody where
the child resided for five years before her removal to
Delhi.

20. In the Full Bench judgment of Bombay High Court in
FCA.No.161 of 2013, dated 01.12.2016, it is held :
Learned Senior Counsel further submitted that the Act of
1955 is a special law vis–vis the Act of 1984, which is a
general law, which provides a forum for the adjudication of
matrimonial disputes arising under all the diverse substantive
laws. It was submitted that it is well settled principle of
interpretation of law that general law does not abrogate
earlier special law by mere implication. The Act of 1984 is
essentially a procedural law.

. Learned Counsel submitted that with a view to secure
speedy settlement of disputes relating to marriage and family
affairs, separate Family Courts were established pursuant to
the Act 66 of 1984. The Act of 1984 is a procedural law
prescribing procedure to be adopted in the Family Courts.
Prior to the enactment of the Act of 1984, all the family
matters were adjudicated under Order XXXIIA of Civil
Procedure Code, 1908 before the concerned District Courts.

18. The Apex Court, in para 11, in the case of
R.S.Raghunath vs. State of Karnataka and anr
[(1992) 1 SCC 335], by referring to earlier judgment
in the case of Chandavarkar Sita Ratna Rao v.
Ashalata S.Guram [(1986) 4 SCC 447], observed as
under :-

In Chandavarkar Sita Ratna Rao v. Ashalata S.
Guram, the scope of non-obstante clause is explained
in the following words:

“A clause beginning with the expression
“notwithstanding anything contained in this Act or in
some particular provision in the Act or in some
particular Act or in any law for the time being in force,
or in any contract” is more often than not appended to
a section in the beginning with a view to give the
enacting part of the section in case of con- flict an
overriding effect over the provision of the Act or the
contract mentioned in the non obstante clause. It is
equivalent to saying that in spite of the provision of the
Act or any other Act mentioned in the non obstante
clause or any contract or document mentioned the
enactment following it will have its full operation or
that the provisions embraced in the non obstante
clause would not be an impediment for an operation of
the enactment.”

On a conspectus of the above authorities it emerges
that the non-obstante clause is appended to a
provision with a view to give the enacting part of the
provision an overriding effect in case of a conflict. But
the non-obstante clause need not necessarily and
always be co-extensive with the operative part so as to
have the effect of cutting down the clear terms of an
enactment and if the words of the enactment are clear
and are capable of a clear interpretation on a plain
and grammatical construction of the words the non-
obstante clause cannot cut down the construction and
restrict the scope of its operation. In Such cases the
non- obstante clause has to be read as clarifying the
whole position and must be understood to have been
incorporated in the enactment by the Legislature by
way of abundant caution and not by way of limiting the
ambit and scope of the Special Rules.

In the above case, in para 7, the Apex Court referred
to the Maxwell on The Interpretation of Statutes (11th
Edition, page 168). The principle of law was stated as
under :

A general later law does not abrogate an earlier
special one by mere implication. Generalia
specialibus non derogant, or, in other words, “where
there are general words in a later Act capable of
reasonable and sensible application without extending
them to subjects specially dealt. with by earlier
legislation, you are not to hold that earlier and special
legislation indirectly repealed, altered, or derogated
from merely by force of such general words, without
any indication of a particular intention to do so.” In
such cases it is presumed to have only general cases in
view, and not particular cases which have been
already otherwise provided for by the special Act.

21. In view of the cases cited above, it is established that in order to
give jurisdiction on the ground of ‘residence’, something more than a
temporary stay is required. It must be more or less of a permanent
character. In its ordinary sense, ‘residence’ is more or less of a
permanent character. The expression ‘resides’ means to make an
abode for a considerable time; to dwell permanently or for a length of
time; to have a settled abode for a time. It is the place where a person
has a fixed home or abode. In Webster’s Dictionary, ‘to reside’ has
been defined as meaning ‘to dwell permanently or for any length of
time’, and words like ‘dwelling place’ or ‘abode’ are held to be
synonymous. If a person lives with his wife and children, in an
established home, his legal and actual place of residence is the same.

22. While determining the jurisdiction of a Court to entertain the
application under Section 7 of the Act on the ground of residence,
what is material is actual residence of the minor at the commencement
of the proceedings and not a legal or constructive residence of such
minor unless where an artificial residence is created with bad faith. In
the case in hand, the appellant and respondent went to USA for higher
studies and they married on 14th March 2008 at Hyderabad. It is
admitted fact that prior to their marriage, they were residing in USA.
It is also admitted fact that they were blessed with two children,
namely, Arthin Kodali and Neysa Sakhamuri Kodali, born in USA on
14th March 2012 and 13th October 2014 respectively. Both of them
are admitted in school at US much prior to the initiation of
proceedings before Additional Family Court at Hyderabad. Both the
children are US citizens and are holding US passports. The
matrimonial home in the present case was also in US until stealthy
removal of children from US on 23rd March 2017 to Hyderabad. It is
also admitted fact that the respondent had herself invoked the
jurisdiction of US Court by filing a divorce-cum-custody petition and
equal distribution of the marital property on 21st December 2016,
wherein, it was clearly averred by the respondent that both the parties
are residing in Pennsylvania, US and primary physical custody of both
the children be awarded to the respondent/wife. Further more, the
respondent admitted in her divorce petition that for the past 5 years,
the minor children are residing with both the appellant and respondent
in US and the best interest and permanent welfare of the said minor
children would be served by awarding the primary custody to the
respondent. Therefore, it was the respondent who invoked the
jurisdiction of the US Court seeking primary physical custody of both
the minor children.

23. Section 4(5) of the Act defines the word “Court”. According to
the definition, the word “Court” for the purpose of the Act is the
District Court having jurisdiction to entertain an application under the
Act for an order appointing or declaring a person to be a guardian of a
minor in respect of his person or property. The jurisdiction of the
Family Court has to be decided in the premise of the definition of ‘the
Court’ in Section 4(5) of the Act and the provisions of Section 9 of the
Act. If a Family Court before which an application is made
under Section 7 of the Act finds that the minor whose guardianship is
sought in the application, ordinarily resides within its territorial
jurisdiction, such Family Court is bound to entertain the application
and decide that application on merit in accordance with law. The
Court cannot refuse to exercise the jurisdiction under Section 7 of the
Act on grounds of expediency or convenience or propriety.
Jurisdiction of a Court is determined by law and not by considerations
of expediency or convenience or choice of the parties who invoke the
jurisdiction of such Court.

24. The expression ordinarily resident used in Section 9 of the
GW Act has a connotation that signifies something more than a
temporary residence. The said expression must be given its natural
and literal meaning. The question whether one is ordinarily residing
at a given place, is dependent on the intention of the parties to make
that place ones ordinary place of abode.

25. In the case in hand, admittedly, before marriage, the appellant
and respondent were staying in US and minor children were born on
14th March 2012 and 13th October 2014. Both of them were admitted
in a school at US much prior to initiation of proceedings before
Additional Family Court, Hyderabad. Both the minor children are US
citizens and are holding US passports. They were shifted to India
only on 23rd March 2017, and thereafter, the respondent filed petition
before the Court at Hyderabad on 12th April 2017. Thus, practically,
the children stayed in India only for around 20 days when the
respondent filed the petition before the Court at Hyderabad. In
addition, the respondent came to India on 23.03.2017 with return
ticket to U.S. on 24.04.2017. At that time, as admitted by the
respondent, she had no plan to stay back in India.

26. It is pertinent to mention here that the respondent, in order to
seek orders in her favour, intentionally misled the Family Court at
Hyderabad by concealing the facts that minor children are citizens of
U.S.A. by birth and are being educated at Datzyk Montessori School,
3300 Broadway, Allentown, Pennsylvania and the appellant and
respondent together got enrolled both children in the aforementioned
school, for the academic year 2017-18.

27. Keeping in view the above discussion, we have no hesitation to
say that the children are not ordinarily residents of Hyderabad.
Accordingly, we hereby set aside the order dated 15th September 2017
passed by the Additional Family Court, Hyderabad in I.A.No.591 of
2017 in G.W.O.P.No.433 of 2017. Consequently, the proceedings in
G.W.O.P.No.433 of 2017 are hereby quashed.

28. Accordingly, F.C.A.No.372 of 2017 is allowed with no order as
to costs.

Pending miscellaneous applications, if any, shall stand closed.

SURESH KUMAR KAIT, J
8th February, 2018

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please to read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registrationJOIN WELCOME GROUP HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307,312, 313,323 376, 377, 406, 420, 506, 509; and also TEP, RTI etc

Web Design BangladeshWeb Design BangladeshMymensingh