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Swati Binaykia vs Abhishek Binaykia on 23 September, 2019

C/FA/2037/2017 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/FIRST APPEAL NO. 2037 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE S.R.BRAHMBHATT

and
HONOURABLE MR.JUSTICE A.G.URAIZEE

1 Whether Reporters of Local Papers may be allowed to
see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the
judgment ?

4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?

SWATI BINAYKIA
Versus
ABHISHEK BINAYKIA

Appearance:

MR PERCY KAVINA WITH MS GARIMA MALHOTRA WITH MR.BHASH H
MANKAD(6258) for the Appellant(s) No. 1
JANAK S RAJPUROHIT(7881) for the Defendant(s) No. 1
SHIVANI RAJPUROHIT(5377) for the Defendant(s) No. 1

CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE

Date : 23/09/2019

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CAV JUDGMENT

(PER : HONOURABLE MR.JUSTICE A.G.URAIZEE

1. The appellant-original defendant has preferred the
present Appeal under Sectionsection 19 of the Family Courts Act
(“F.C.Act” for short) read with section 47 of the Guardian
and SectionWards Act (“G W Act” for short) to assail the
judgment and order dated 10/03/2017 passed by the
learned Judge, Family Court No.4, Ahmedabad in Family
Suit No. 1546 of 2015, whereby and whereunder the
respondent herein-original plaintiff-husband is permitted
to retain custody of the minor child/son Vihaan Vinayak.
For the sake of brevity, hereinafter the respondent shall
be referred to as “the plaintiff” and the appellant shall be
referred to as “the respondent”.

2. Facts giving rise to the present Appeal, as could be
carved out from the impugned judgment are reproduced
hereunder in verbatim:-

2.1 The plaintiff completed his undergraduate degree in
Electronics Communication Engineering from Nirma
Institute of Technology, Ahmedabad and pursue his
masters in Electrical Engineering and MBA from United
State of America and lived and worked in USA on a H1
Visa, whereas defendant claimed to be pursuing her
undergraduate degree from CEPT, Ahmedabad. Plaintiff
and defendant came into contact with each other by their
family members in the year 2008. Initially court marriage
took place between plaintiff and defendant on 5/12/2008

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before the Registrar of Marriage at Ahmedabad and
thereafter marriage of plaintiff and defendant was
solemnized on 20/4/2009 according to Hindu rites and
rituals at Ahmedabad. The defendant applied for H4
(dependent) Visa and plaintiff and defendant went for
their vacation to Italy and then defendant shifted to USA
with plaintiff permanently.

2.2 After few weeks of cohabitation, plaintiff found that
defendant was authoritative, selfish, totalitarian and
unreasonably dominant. The defendant demanded larger
accommodation despite it was not possible for plaintiff.
Defendant displayed an unprovoked and inexplicable
dislike towards plaintiff’s family members and even
refrain from talking to them over the phone. The
defendant completely failed to discharge her matrimonial
obligation. The defendant behaved in an autocratic
manner and acted as if she lived in a hotel and neglected
plaintiff. The defendant always desired a very luxurious
life and it was not possible for plaintiff to meet with all
unreasonable and excessive demands of defendant from
his salary. The defendant got green card within eight
months and became eligible to work, but she was
unwilling to work and to assist plaintiff financially. The
defendant instead of talking with plaintiff chose to
communicate with her friends in India. The defendant
woke up and slept at her own convenient time owing to
which plaintiff had to face adverse situation. The plaintiff
was unemployed for about 8 months, however, the
defendant went on with her extravagant lifestyle and
continued with over the top spending pattern.

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2.3 After one and half year of marriage, plaintiff wanted
to have a child from their marriage, but defendant
consistently refused to have a child. The defendant
became pregnant in the year 2011, but the defendant
consulted gynecologist for getting an opinion to
terminate the pregnancy without consent of plaintiff. The
defendant was not graduate and not worked even for a
single day in USA, but the defendant with a view coerce
plaintiff into consenting for terminating the pregnancy,
defendant purportedly expressed her desire on her
career instead of family. Defendant was determined to
terminate her pregnancy and even tried to jump off from
balcony to commit suicide. Plaintiff took carte and
caution of defendant during pregnancy period of
defendant.

2.4 After birth of their son, behavior of defendant did
not change and she began avoiding minor child in the
same manner as she had been avoiding plaintiff. The
defendant failed to undertake most basic duties of a
mother such as feeding and bathing of a child and
insisted plaintiff to hire services of a caretaker. The
plaintiff had to play dual role of father and mother. In July
2011, defendant quarreled with plaintiff and tried to cut
her own wrist with knife and plaintiff was constrained to
call police, who kept defendant under detention for
analyzing her mental stability. Defendant adopted a
completely casual attitude towards plaintiff and their
minor child. Defendant constantly kept on pressuring
plaintiff to take her out on vacation despite plaintiff being

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financially constrained. Defendant even during family
vacations often abandoned plaintiff and minor child and
had preferred to go for sightseeing. Plaintiff narrated
incident took place in October 2012 during their trip to
Hawaii and stated that defendant went for photography
for two hours and plaintiff and minor child waited for
more than two hours and alternation took place and
defendant opened door of running car and thereby
endangering child’s safety and plaintiff was constrained
to call police to handle the situation. The defendant made
unreasonable demands and misbehaved and non-
cooperated and neglected plaintiff and minor child. It
became impossible for plaintiff to live with defendant.
Plaintiff apprehended that keeping minor child with
defendant would be extremely unsafe and could have an
adverse impact on his mental and physical growth. That
defendant’s needs for materialistic goods never ended.
The defendant was arrested for shoplifting in October
2011.

2.5 Plaintiff’s mother and sister visited USA in June 2015
and conduct of defendant was worsened with them and
forced them to leave early. The minor child had fever at
104 degree, however, defendant gave priority to her
course over the minor’s health and plaintiff was forced to
take leave. Plaintiff has been taking care of minor’s
school, school events, doctor visits, play dates with
friends, sporting and extracurricular activities without
help of defendant. Plaintiff was required to visit India for
his work and wanted to bring minor child to India and
defendant was busy in pursuing her course, however,

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defendant refused to allow plaintiff to bring minor with
him. After returning from India, plaintiff requested
defendant to sign necessary papers for renewal of
passport and also the documents for acquiring an OCI for
minor child, but defendant refused to sign and
threatened plaintiff. In August 2015, the father of the
plaintiff had become extremely sick and hospitalized and
presence of plaintiff was necessary in India. Since the
defendant completely disregarded welfare of minor child
and failed to look after minor child during their stay in
USA, plaintiff came to India with minor child on 14/8/2015
after informing defendant. Plaintiff after taking into
consideration consistent cruelty meted out by defendant
decided to settle in India permanently. Plaintiff took
decision to live with his parents and to provide education
to minor child in India and such course of action is in the
larger interest of minor in view of bitter history of
acrimonious marital relation of plaintiff with defendant.
Plaintiff being natural guardian of minor child entitled to
take such decision and to retain custody of minor child in
India and without any interference of defendant and the
defendant is not entitled to remove custody of minor
child. Plaintiff has apprehension that defendant is likely
to contest his decision. Defendant had filed police
complaint against plaintiff in USA and time and again
threatened plaintiff.

2.6 Defendant displayed extremely violent, lawless and
reckless behavior and has time and again endanger her
own safety along with safety of their minor child. The
defendant has been penalized for different traffic

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violations of breaking red light at high speed, over
speeding and violating parking norms and dush behavior
of defendant is an absolutely careless and reckless
parent.

2.7 The presence of plaintiff was essential in India,
when his father was sick in August 2015, however,
defendant did not support plaintiff’s decision and
threatened to face legal consequences, if he tried to go
to India without her consent. The defendant was neither
willing nor intending to take care of minor, and therefore,
plaintiff was constrained to bring minor along with him to
India on 14/8/2015. The plaintiff tried to convince
defendant to accompany him but defendant chose not to
accompany him, but defendant chose to accompany him
and stay in USA. The defendant being aware of plaintiff’s
visit to India, defendant approached plaintiff’s company
and made false statements about not being aware about
plaintiff’s whereabouts and about plaintiff trying to
threatened minor’s safety. The plaintiff even proposed to
defendant to purchase another residence in India so that
they could reside together, if defendant has problem to
live with plaintiff’s parents, however, defendant refused
to come to India and to join plaintiff. That minor child is a
citizen of USA and his passport of USA and terms of the
said passport expired in March 2016 and it is necessary
to renew the said passport. The plaintiff also wants minor
child to acquire ICA Card to enable him to stay in India.
That signature of the defendant is essential for renewal of
passport and OCI Card of minor child and despite
repeated requests, defendant refused to sign such
papers. The plaintiff being natural guardian of minor child

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has right to take decisions about residence, education,
upbringing of minor child and plaintiff has taken such
decisions and brought the minor child in India, which is in
the best welfare and interest of minor child. Plaintiff has
identified few prospective schools for taking admissions
of minor child. Plaintiff, defendant and minor child are
governed by Hindu Law. Plaintiff and minor child are
residing with plaintiff’s parents and plaintiff’s mother is in
a position to help plaintiff in every possible care of minor
child. Plaintiff has sufficient financial resources to provide
good quality education to minor child. The plaintiff has,
therefore, filed present suit to retain custody of minor
child permanently and for permanent injunction
restraining defendant from interfering or removing the
custody of minor child from him as prayed in the plaint.

3. The appellant herein-original defendant wife resisted the
Family Suit by filing Written Statement at Exh 46 and
denied all the averments and allegations made by the
respondent herein-original plaintiff husband in the Suit.

4. The learned Trial Judge after considering pleadings,
framed the following issues:

:

(1) Whether the plaintiff proves that the welfare of the
minor son is not with the defendant, but it is with the
plaintiff ?

(2) Whether the plaintiff proves that in the paramount
interest and welfare of the minor, he is entitled to retain
the custody of minor?

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(3) Whether this Court has jurisdiction to entertain and
adjudicate the present petition regarding custody and
welfare of the minor son Vihaan?

(4) Whether the plaintiff is entitled to get permanent
injunction restraining the defendant from interfering with
or removing the minor from the custody of plaintiff?

(5) Whether the plaintiff is entitled to get mandatory
injunction that the defendant do sign all the necessary
papers for renewal of the passport of the minor as prayed
in paragraph 35(c) of the main petition?

(6) Whether the plaintiff is entitled to get a decree, as
prayed for?

(7) What order?

5. The parties led oral and documentary evidence and after
considering the evidence, the learned Trial Judge decreed
the Family Suit instituted by the plaintiff-respondent
herein husband and permitted him to retain custody of
minor son Vihaan, which gave rise to file the present First
Appeal.

6. The appeal was taken up for final disposal at the
admission stage with the consent of learned counsels for
the parties. We have heard the learned advocates
appearing on behalf of the respective parties at great
length. Learned advocates for the respective parties have
reduced their oral submissions in writing, which are

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reproduced as under:

7. WRITTEN SUBMISSION OF THE APPELLANT
HUSBAND:

I. Issue of jurisdiction.

A. Petition filed by respondent barred under section 9 of
the Guardian and SectionWards Act. It is submitted that the
petition filed by the respondent before the Family Court,
Ahmedabad is barred by section 9(1) of the Guardian and
SectionWards Act. Section 9(1) of the Guardian and SectionWards Act,
1890, categorically reads that the courts within whose
jurisdiction minor child “ordinarily resides” shall only
have jurisdiction under the Act. In the present case the
ordinary place of residence of the minor child since his
birth has been only the United State and not India. It is
submitted that the Family Court at Ahmedabad or any
court in India, have no jurisdiction over the minor child
Vihaan, who is admittedly :

(i) a US citizen by birth, holds a US Passport,

(ii) has been staying in US since his birth;

(iii) spent his entire formative 4.1/2 years in United
State (until he was stealthily removed by respondent
on 12/8/2015);

(iv) started his schooling in USA;

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(v) born from the wedlock of such parents, who have
been Staying in USA since inception of marriage,
holding green cards, set up their family home in USA,
applied for citizenship and staying in USA with the
intention to make it their permanent residence
(admitted in the suit filed by the respondent)

However, as far as “ordinary residence” of the minor child
is concerned, it is USA which is the habitual and ordinary
place of residence, where the parties together resided as
a family with the child since inception of marriage.
Hence, as per provisions of Guardian and SectionWards Act, it is
the courts in USA which have the natural and original
jurisdiction over the minor child and to decide the issue
of welfare and custody of the minor child.

B. “No intention to permanently reside in Ahmedabad
proved from the facts of the case”. The argument
advanced by the respondent relying upon the case of
Ruchhi Majoo Vs. Sanjeev Majoo, reported in (2011)
6 SCC 479 is that in order to determine the “ordinary
residence” of the minor child under section 9 of the GW
Act, it is the intention to make a place one’s ordinary
abode which is to be kooked at, which is to be discerned
from the facts of the case. It is submitted that in the
present case if the determination of the “ordinary
residence” is to be tested on the principle of “intention”,
even then it cannot be said that the ordinary place of
residence of the minor child is “Ahmedabad’ as :

(i) To make a place an ordinary abode as to the

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collective decision of parents: The intention to
permanently reside at a given place has to be a collective
decision of the parents and not a unilateral decision by
one parent. It is stated that the respondent and the
appellant since inception of the marriage stayed in USA,
set up their matrimonial home, had a child who all along
grew up in United State which proves that their collective
intention was to made USA their permanent and place of
ordinary abode. Hence, merely because the respondent
one fine day unilaterally decides to stay back in India
after stealthily removing the minor child from his family
home in USA, shall not and ought not to be taken as to
minor’s ordinary place of residence.

It is pertinent to note that even in the case of Ruche
Majoo V/s Sanjeev Majoo (supra), the Hon’ble
Supreme Court took note of the series of emails and
correspondence exchanged between the parties which
revealed that in the said case the father had consented
vide various mails that the minor may stay back with the
child in Delhi and even find herself a job and to admit the
child in a school in Delhi (para 39 to 45). Therefore, it was
the consensual intention of both the parties which was
taken into consideration while determining the issue of
“ordinary residence” under section 9 of the GW Act.
However, in the present case, the respondent stealthily
and surreptitiously removed the child to India and no
consent whatsoever has been given by the appellant to
keep the child in India.

(ii) Mere Statement at the time of making application

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under GW Act cannot reveal the intention : Assuming
though not admitting mere respondent’s decision to
make Ahmedabad permanent place of abode could be
looked at, it is submitted that the intention to make a
place one’s permanent abode is to be discerned from the
facts of the case and not on the basis of mere statement
made by the respondent at the date of making the
application.

The expression “ordinary residence” used in section 9(1)
of the GW Act, 1890 is not identical and cannot have
the same meaning as “residence at the time of filing of
the application”. The purpose and object of the Act of
using the expression “where the minor ordinarily resides”
by the legislature is to avoid the mischief that a minor
may stealthily removed to a distant place and even if he
is forcibly kept there, the application for the minor’s
custody could only be filed within the jurisdiction of the
District Court from where he had been removed or in
other words, the place where the minor would have
continued to remain but for his removal. Hence, the
present case is one such case of mischief where the child
has been stealthily removed by the respondent on the
bogus and sham pretext of the illness of his father in
order to oust the jurisdiction of the courts in United
states. Therefore, a mere statement on the part of the
respondent at the time of making application cannot be
the conclusive factor to hold that the minor is a ordinary
resident of Ahmedabad.

It is submitted that the expression “where the minor

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ordinarily resides” has to be construed in a manner
where the residence by compulsion or force at a place,
no matter however long, cannot be treated as the place
of ordinary residence, which legal position has been
expounded in number of judgments.

(iii) Admission on the part of the respondent of having no
intention to stay in India:

– Chief examination of respondent:- Para 41 @ 380 of
respondent’s paper book the respondent has himself in
his chief examination admitted that when he came to
India in August, 15 he neither had the intention nor he
made up his mind to permanently stay in India and he
has reiterated the same in his cross examination on
page 440 of respondent’s paper book.

– Postponement of Oath Ceremony for US Citizenship:
The respondent himself admitted in his cross-
examination (page 441 of respondent’s Paper Book) that
after coming to India in August, 2015, the respondent
requested the United States Citizenship and Immigration
Service department (USCIS) to postpone and reschedule
his oath ceremony of citizenship from September 8, 2015
to sometime in December, 2015, which reveals that the
respondent had no intention to permanently reside in
India let alone Ahmedabad either at the time of filing of
the suit or thereafter.

C. Doctrine of “Closest Concerned” and “Most Intimate
Contact”: The law has been well settled by the Hon’ble

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Supreme Court in the case of Smt. Surinder Sandhi Vs.
Habax Sindhu Sandhu (1984) 3 SCC 698, Shilpa
Aggarwal VIS Aviral Mittal (2010) 1 SCC 591, Dr. V.
Ravichandran Vls. U0I and ors. 2010(1) SCC 174,
Surya Vadanan V/s. State of Tamil Nadu 2015 (5)
SCC 450, Elizabeth Dinshaw V/s Arvand M. Dinshaw
and catena of such other cases wherein it has been held
that the jurisdiction of Courts under the Guardian and
SectionWards Act is determined by whether the minor “ordinarily
resides” within the area on which the court exercises
such jurisdiction and further that the court which have
the closest concern and most intimate contact with the
minor child, have the jurisdiction over the minor child.
The principle and ratio laid down in the case of Surinder
Kaur Sandhu (supra) is applicable till date which reads
as under :

“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 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. To allow the assumption of
jurisdiction by another State in such cases will only result
in encouraging forum-shopping. Ordinarily jurisdiction
must follow upon functional lines. That is to say, for
example, that in matters relating matrimony and
custody, the law of that place must be govern which has
the closest concern with the well-being of the spouses
and the welfare of the offspring of marriage.

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Therefore, while deciding the issue of jurisdiction it is
submitted that this Hon’ble Court may consider that :

(i) Parties in this case are green card holders;

(ii) Residing in US since inception of marriage with the
intention to stay there permanently;

(iii) Made United States their home where the minor child
was born to them; and

(iv) Further the fact that the matrimonial home of the
spouses was in US;

(v) Respondent applied for citizenship in February 2015
and even gave interview for the same and further it was
after coming to India, that the respondent requested the
US authorities to postpone his oath ceremony of
citizenship to December, 2015 which fact is contrary to
his stand taken before the Courts in India that he wants
to permanently resides in Ahmedabad.

Hence, these factors establish sufficient contacts and ties
with United states in order to make it reasonable and just
for the Courts of that State to assume jurisdiction for
enforcing the obligations which were incurred therein by
the spouses. It is pertinent to mention that the
respondent even applied for US citizenship and even
gave his interview for the same.

Applying the ratio laid down in the aforementioned
judgments, the Family Court ought to have rejected the

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Plaint of the respondent for want of jurisdiction and
directed that the minor child be returned to the
jurisdiction of the US Courts as it is the courts in US which
have the closest concern with the child. It is submitted
that such an order shall be in the best interest of the
minor child.

D. Modus operandi adopted to stealthily remove the
minor child Conduct of the respondent : It is submitted
that the respondent has acted in a pre-planned manner
with the mala fide intention to stealthily remove the
minor child from the jurisdiction of the courts in US and
his family home in US without consent of the appellant
and that the reasoning given by respondent in the
custody petition that he had to return to India as his
father had suddenly fallen ill is bald, concocted and
devoid of any documentary proof. The following would
reveal that removal of child from his family home in US
was a calculated move of the respondent which he pre-
planned with his family. Therefore, the learned Family
court has erroneously believed the story concocted by
respondent despite the fact that the respondent grossly
failed to prove the story of his father falling ill and by
returning blind eye to the various documents placed on
record by the appellant.

(i) Pre-planning on the part of respondent and his
family to stealthily remove the minor child from USA to
India : It is submitted that the respondent herein has
indulged an illegal and mala fide act of stealthily
removing the minor child Vihaan on 12/8/2015, when he

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was merely 4 years and 9 months, from his family home
and ordinary place of residence in USA about the consent
of the appellant. The respondent herein concerted with
his father and other family members to remove the minor
child Vihaan and initiate court proceedings against the
appellant in India. The same can be corroborated from
the following documents which have been admitted by
the respondent:

(a) Mail dated 28/7/2015 : addressed by the respondent
to his father Mr. Madanlal Binaykia (@539 of appellant’s
Paper book) admitted by respondent in reply to SCA
20027 of 2015 @ pg 112 para 7;

(b) Change of postal address : Before leaving for USA, the
respondent applied to US Postal service department for
change of postal address, which fact also (document @
page 540 of appellant’s paperbook). This fact has also
been admitted by the respondent in his reply to SCA
20027 of 2015 @ 113 para 9;

It is trite law that admission of the best proof, hence,
once aforementioned documents were admitted by the
respondent himself on oath, in that case the plea of the
respondent that the said documents cannot be read in
evidence as the same are not exhibited holds no force.
Therefore, there was no onus on the appellant to
independently prove the said documents as the
same stood proved on being admitted by the respondent
on oath.

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(ii) Stealthily removing the minor child on 12/8/2015
while appellant was away: It is an uncontroverted fact
that after the appellant left the house to attend her
course in the morning of 12/8/2015, the respondent
surreptitiously picked up the child from school and left
with the child for India, leaving a one line email and a
hand written letter which is also never a natural course of
communication between a husband and wife living under
the same roof (Document @ 541 and 542 of appellant’s
paperbook). A false and bogus reason was given in the
email by the respondent on his dad having been
hospitalized and a communication by e-mail was meant
to given aid to the respondents nefarious designs.

Further, assuming though not admitting that respondent
had to leave as allegedly his father was hospitalized,
however, the respondent has admitted in his cross-
examination that his mother informed him about the
purported hospitalization in the morning on 12/8/2015
and hence the respondent could have called the
appellant informing her about the same. But the mere
fact that the respondent chose to surreptitiously and
clandestinely leave with the minor child by sending one
line email before leaving in the evening, makes appellant
the mala fide intent behind the story concocted by the
respondent. Also, no prudent father would want to take a
4.1/2 years old child along with him when he is to go to
attend his father who was allegedly hospitalized or
communicate such news to his wife by an e-mail.

(iii) Alacrity in moving the Family Court, Ahmedabad :

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As stated above that the email 28/7/2015 addressed by
the respondent to his father reveals that he had already
hatched a conspiracy with the family to remove the minor
child and remove the courts in Ahmedabad against the
appellant. Therefore, as pre-planned by respondent,
within 2 weeks of his arrival in Ahmedabad, he filed the
petition before the Family Court, Ahmedabad. Therefore,
it is important to note the alacrity with which the
respondent wanted to give colour to his nefarious designs
of depriving the minor child (who was merely 4 years
and 8 months old) of his mother and appellant of her only
child and further in order to oust the jurisdiction of the
courts in USA over the minor child.

(iv) Bogus and contrived medical certificate dated
11/8/2015 produced by the respondent : In order to
corroborate his concocted story of his father having been
hospitalized, the respondent for

(v) The first time filed a purported Medical Certificate
dated 11/8/2015 (Document @ page 762 of appellant’s
paperbook and document @ pg 58, respondent’s
paperbook) by way of an additional affidavit before this
Hon’ble Court in SCA 14299 of 2015. It is pertinent to
note that the said purported Medical Certificate was not
filed along with the suit before the Family Court,
Ahmedabad. The bare reading of purported medical
certificate reveals that the same is nothing but a
fabricated document and has been procured to create
false evidence.

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No other document produced other than the fabricated
Medical Certificate : Further, it is worthy to note that the
respondent in his cross examination (page 440 of
respondent’s Paper-book) has specifically admitted that
except the said purported medical certificate no other
document such as hospital bills, admission and discharge
card has been produced by the respondent in support of
his story of rushing down to India as his father was
hospitalized. Therefore, the Family court has materially
erred in coming to an absolutely erroneously conclusion
with respect to the fact that the respondent’s father was
ill and hospitalized despite there being no medical
evidence on record barring a fake and fabricated medical
certificate dated 11/8/2015 produced by the respondent,
the contents of which reveals that the same is nothing
but a sham and contrived document and which has been
admittedly produced belatedly at the stage of wing the
additional Affidavit by the respondent in SCA in 14299 of
2015 with an oblique motive to mislead the Hon’ble
Courts in believing a false story of his father’s purported
illness being the sole reason of him bringing the minor
child with him to India and staying back in India.

E. Order dated 16/9/2015 and 4/1/2015 passed by the
Superior Court, California, USA ought to have been given
due weightage: It is submitted that the learned Family
Court has erroneously failed to give due weightage to the
orders passed by the Supreme Court, California in the
petition for custody moved by the appellant despite the
fact that the said courts having the “most intimate
contact” with the minor child, were best suited to

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determine the issue of welfare and custody of the minor
child.

(i) Order dated 16/9/2015 passed by Superior Court,
California: On 15/9/2015, the appellant herein filed a
petition for temporary custody orders before the Superior
Court, California, USA (@ page 627 of appellant’s paper-
book) wherein the appellant on pg 660 revealed the
cases filed by the respondent before the Family court and
High Court in India and in the body of the petition @ pg
644 (appellant’s paper-book) mentioned about the orders
dated 3/9/2015 and 11/9/2015. On 16/9/2015, the
Superior Court, California passed a substantive order
holding that the habitual place of residence of the minor
child is in USA and that the minor be returned to USA and
appellant to have sole physical and legal custody of the
minor child (Order dated 16/9/2015 @ pg 663 appellant’s
paper-book, which is at Ex.135). It is pertinent to note
that the said order of the Superior Court, California was a
substantive order which held that the habitual place of
residence of the minor child is California, USA and
directed respondent to bring the child back and further
that this order was passed prior in time to the order
dated 21/10/2015 of the Family Court, Ahmedabad, which
decided the issue of jurisdiction and interim custody.

(ii) Participation of respondent in proceeding filed by
appellant before Superior Court, California:

(a) Motion to quash filed by respondent on 27/10/2015:
On being served with the copy of the petition filed by the

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appellant before the Courts in USA, the respondent
herein on 27/10/2015 filed before the Courts in USA a
motion to quash the petition of the appellant on the
ground of :

– Deficient service respondent claimed that the
appellant has not served the petition as per hague
convention; and

– Order dated 3/9/2015 and 11/9/2015 already having
been passed by the courts in India.

(b) Order dated 4/1/2016 (Ex.136 @ pg 679 of appellant’s
paper-book) Appellant through lawyer and telephonic
appearance in person for Court hearing on 19/11/2015
before Superior Court, California : Thereafter, admittedly
the respondent, though his lawyer and telepathically in
person, participated in the court hearing held on
19/11/2015 before the Superior Court, California wherein
the motion to quash tiled by respondent was only allowed
to have extent that the appellant may serve through
hague convention. However, vide order dated 4/1/2016 it
was categorically reiterated by the court that the habitual
place of residence of the minor is USA. It was also held
that the prior temporary orders dated 16/9/2015, which
granted sole legal custody and physical custody of
Vihaan to and ordered the respondent to return Vihaan’s
custody to the appellant in California, are still valid and in
effect.

(c) Motion filed by respondent before Superior Court,

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California for registration of orders passed by Courts in
India; In November 2015 the respondent also filed a
petition to register before the Courts at California the
order dated 21/10/2015 passed by the ld. Family Court
and 11/9/2015 passed by this Hon’ble Court but vide
order dated 22/7/2016 the said motion of respondent was
rejected. (Order dated 22/7/2016 passed by Superior
Court, California @ pg 694 of appellant’s paper-book).

II. DETERMINATION ON MERITS:

A. Paramount welfare of the child of 6 years (at present)
rests with the mother: It may be appreciated by this
Hon’ble Court that when the respondent committed the
gross act of stealthily removing the minor child from USA
to India, the child was of a tender age of 4 years and 9
months and at present the child is 6 years old. A child of
such a tender age of being deprived of the love, affection
and care of his mother, which love, affection and care
cannot be substituted by presence of anyone else around
the child. Therefore, the stand of the respondent that the
child living with his grandparents and a divorces and a
separated aunts respectively, cannot be made the basis
to decide the welfare of the child as indisputably the
welfare of the child of such a tender age lies with his
mother.

Further, welfare of the child cannot be lie with the
respondent who (a) with his family schemed and plotted
against the appellant to leave her destitute and
financially detained; (b) with the family schemed and

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plotted to illegally remove the minor child from his family
home; (c) filed false and fabricated documents before the
Court in India and misrepresented and concocted stories
before the Courts in India; (d) has two sisters, one of
whom is a divorcee and other living separately from her
husband for past 20 years and have conspired with and
supported the respondent to keep the minor child away
from the appellant.

B. Respondent has failed to produce any evidence or
prove that the appellant was an uncaring mother;

(i) It is stated that despite being a well-qualified
Interior Designer from CEP, appellant took a
conscious decision to be a stay at home mother
and devote her entire time in looking after the
house, the respondent and devoting herself
towards upbringing of the minor child, while
admittedly the respondent was out of job for
approximately 9-10 hours in a day and also while
the respondent made frequent business trips
within USA and internationally (admitted by
respondent in his cross-examination @ pg 433 of
respondent’s paper-book). It was the appellant
who gave up her career ambitions and almost
single handily took care of the child for four and
half years until he was abducted by the
respondent.

(ii) No documentary proof has been placed on record
to show that since the birth of the child in
January, 2011 and till he was stealthily removed

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by respondent in 2015, the child was at any point
of time caused any harm or his safety has been
endangered at the ends of the appellant. It is
stated that the appellant, like every other
mother, has devoted all her time and attention
towards the upbringing of the child.

(iii) The entire petition of the respondent before the
Family Court is based on instances which reveals
the acrimonious relationship of the respondent
and appellant and the instances of
temperamental differences between them which
cannot be considered while deciding the custody
of the minor child and hence, the petition bereft
of any proof of appellant bring a reckless or an
uncaring mother.

However, the learned Family Court sans any
basis and merely on surmises and conjectures,
concluded that though the appellant was not
working in USA those 4.1/2 years and child was in
the care and custody of the appellant but it
cannot be believed that the appellant was taking
good care of the minor child.

C. Appellant’s case taken as gospel truth and evidence
of respondent completely discarded: without providing
any reasoning or on the basis of any evidence, the
learned Family Court has come to the conclusion that
there is a substance in the case of the respondent and
that the oral evidence of the respondent is trustworthy

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and believable. Therefore, without any basis or
reasoning, the learned Family Court has taken the case
of the respondent as gospel truth. Further, it is stated
that the learned Family Court has committed a grave
error in observing that the incidents mentioned by the
respondent stand proved as the learned Family Court
has taken the evidence on the respondent on its face
value and has chosen to disregard the evidence placed
by the appellant without any basis or reasoning.

D. “INCOM” ought not be a factor in determining the
custody and welfare of the child criteria: It is fact that
the appellant being a stay at house mother and having
devoted her 4.1/2 hours towards the upbringing of her
minor child, was financially dependent on the
respondent and hence, it is respondent who
manipulated the entire situation wherein he, along with
illegally removing the minor child and taking him away
from the appellant left appellant destitute, deserted,
homeless and financially handicapped. Hence, the
Family Court ought not to have granted custody of the
child to the respondent on the ground that the
appellant is not financially sound and that the
respondent is better placed.

Even otherwise, it is submitted that the appellant
placed on record her job details along with her earning
details and is capable of providing all the necessary
facilities to the minor child. Without prejudice to
foregoing, it is stated that the father having a job and
earning well cannot be the criteria at all to determine

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the custody of the minor child as if that be the case
then majority of women in India, who are not working
and dependent upon their husbands, shall be deprived
custody of their children.

In view of the above, it is submitted that the impugned
order suffer from grave illegality and perversity and if
not set aside, this Court shall lay down a wrong
precedent of encouraging “Parental Abduction” and
removal of minor child by one Parent from the native
country to country of their convenience and further
shall send a wrong message to the society that welfare
of the minor child is not with the mother, who are not
financially independent or earn less than their
husband.”

WRITTEN SUBMISSIONS ON BEHALF OF THE
RESPONDENT – WIFE:

“Before advancing submissions on the merits of the
matter and before adverting to the factual and legal
aspects of the matter, the respondent would like to
submit that the appellant has filed false criminal
complaints against the respondent before the concerned
authorities in USA.

In view of such criminal complaints, an arrest warrant has
been issued against the respondent in the USA by the
concerned authorities and the respondent will be
arrested and incriminated in connection with such
complaint upon the respondent putting his foot on US

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soil. In view of such arrest warrant, there are also
chances of the respondent being arrested and deported
to USA in case the respondent makes an attempt to
travel to any international destination.

During the course of arguments, the appellant had
submitted that such reservation of the respondent could
be put to rest in view of the appellant submitting an
undertaking before this Court that she would not insist
upon the arrest of the respondent as and when he comes
to USA. However, such undertaking is of no effect since
the respondent is unaware about the penal proceedings
in USA and an undertaking by the appellant will not result
in the concerned authorities in USA restraining itself from
arresting the respondent. Moreover, the appellant has
procured permission from the US Courts to get a
duplicate passport for minor Vihaan, which will make it
very easy for her to remove him from India. Under such
circumstances, irrespective of the undertaking being
tendered by the appellant, there is a looming threat of
the respondent being arrested in connection with the
false and frivolous criminal complaint having been filed
by the appellant in USA.

Moreover, exclusive and unsupervised visitation of the
minor child cannot be granted to the appellant since,
there is an apprehension that the appellant taking
disadvantage thereof will remove the minor from India
and take him to USA. Such removal will result in the
decree of the learned Family Court becoming a mere
paper decree. Even otherwise, the appellant has scant

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regards for the orders passed by the Courts of India.

Now pursuant to the oral hearings, granted by this Court
to the appellant and the respondent, and in furtherance
thereof, the respondent hereby presents his written
submissions.

1. The appellant and the respondent married
according to Hindu Vedic Rites at Ahmedabad on
20th April, 2009. Prior thereto, the registered
marriage took place on 5th December, 2008, before
the Registrar of Marriage, Ahmedabad.

2. The respondent was living in U.S.A. since 2001. He
went on student visa and acquired H-1 visa in 2004.
After the marriage, the appellant and the
respondent lived in U.S.A. One child Vihaan was
born on 17th January, 2011.

3. The marital relations between the appellant and the
respondent faced several problems from the
beginning. The respondent had indicated to the
appellant, as early as in 2009, that he wanted to go
back to India and settle down there permanently
and was only awaiting for the Green Card to come.
The appellant knew, from their repeated
conversations, and often recorded in chats, that the
respondent did not want to live permanently in
U.S.A. and always wanted to return to India.

4. The respondent filed Family Suit No.1546 of 2015

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against the appellant on or about 28th August, 2015.
Such proceedings came to be filed in the
circumstances stated in detailed in the petition. For
the sake brevity, the same are not repeated herein.

5. The respondent also sought interim injunction
restraining the appellant from forcibly taking away
minor Vihaan from the custody of the respondent.
Since no ex-parte ad-interim injunction was granted
and only notice was issued, the respondent
preferred Special Civil Application No.14299 of 2015
before this Court on 3rd September, 2015. in such
proceeding, this Court was pleased to pass an
interim order, protecting the respondent’s custody
of minor Vihaan. Thereafter, the appellant appeared
through her advocate in the same proceedings and
this Court has been pleased to pass bi-parte order
on 11th September, 2015 and directed the learned
Family Court to decide the application for interim
relief finally.

6. Thereafter, the appellant filed proceedings in U.S.A.

and secured ex-parte order regarding the custody
of minor Vihaan against the respondent. Such order
was passed on 16th September, 2015. However, the
appellant deliberately suppressed the order dated
3rd September and 11th September, 2015 from the
U.S. Court and did not disclose that such interim
orders have been passed in favour of the
respondent. Therefore, substantive interim
protection orders were first passed only in favour of

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the respondent and the order of the U.S. Court
against the respondent was later in point of time,
and without disclosure and knowledge of the orders
passed by our Courts and on account of the
suppression by the appellant.

7. The appellant being aggrieved by such order, filed
Special Leave Petition (Civil) No.29339 of 2015
before the Hon’ble Supreme Court. However, before
the same could be heard, the learned Family Court
was pleased to decide the application for interim
relief and protected the custody of minor Vihaan in
favour of the respondent till the disposal of the
main Suit. In view of such order, Special Leave
Petition (Civil) No.29339 of 2015 came to be
disposed of vide order dated 26.10.2015.

8. Being aggrieved by the order dated 20.10.2015, the
appellant Special Leave Petition (Civil) No.31430 of
2015 without approaching this Court. It came to be
dismissed by the Hon’ble Supreme Court by
observing that the appellant should approach this
Court.

9. Accordingly, the appellant filed Special Civil
Application No.20027 of 2015 before this Court,
which came to be dismissed vide order dated
08.03.2016.

10. Being aggrieved by the aforesaid order, the
appellant again preferred Special Civil Petition

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(Civil) No.10045 of 2016 before the Hon’ble
Supreme Court. This also came to be disposed of
vide order dated 22.08.2016, with a direction to the
learned Family Court to proceed with the trial and
dispose of the matter within a period of three
months, uninfluenced by any of the observations
and findings of the High Court.

11. The respondent and the appellant lent oral evidence
and both were subject to cross-examination. After
considering the oral and documentary evidence on
record, the learned Family Court allowed the Suit by
judgment and order dated 10.03.2017 and
protected the respondent’s custody of minor
Vihaan, with regulated visiting rights for the
appellant as provided therein. Being aggrieved by
such judgment and order, the appellant has
preferred the present First Appeal.

12. The following issues have been framed by the
learned Family Court at Exhibit 74:

1. Whether the plaintiff proves that the welfare
of the minor son is not with the defendant but
it is with the plaintiff?

2. Whether the plaintiff proves that in the
paramount interest and welfare of the minor,
he is entitled to retain the custody of the
minor?

3. Whether this Court has jurisdiction to entertain
and adjudicate the present petition regarding

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custody and welfare of the minor son Vihaan?

4. The plaintiff is entitled to get paramount
injunction restraining the defendant from
interfering with or removing the minor from the
custody of the plaintiff?

5. Whether the plaintiff is entitled to get
mandatory injunction that the defendant do sign
all the necessary papers for renewal of the
passport of the minor as prayed in paragraph
35(c) of the main petition?

6. Whether the plaintiff is entitled to get a decree
as prayed for?

7. What order?

13. The findings of the learned Family Court on such
issues are as under:

1. In the affirmative.

2. In the affirmative.

3. In the affirmative.

4. In the affirmative.

5. In the negative.

6. Partly affirmative.

7. As per final order.

14. There are essentially two main issues in the matter.

The first issue pertains to the jurisdiction of the
learned Family Court,.The second issue pertains to
the welfare of minor Vihaan.

15. REGARDING ISSUE OF JURISDICTION:

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The requirement of being ordinarily resident is a
matter of intention and not a matter of, or
dependent upon or the duration of the stay. For this
purpose, reliance was placed upon the judgment of
the Hon’ble Supreme Court in the case of Ruchhi
Majoo Vs. Sanjeev Majoo (Supra). In this
connection, the following observations of the
Hon’ble Supreme Court are relevant.

“31. Reference may be made to
SectionBhagyalakshmi and Anr. v. K.N. Narayana
Rao, SectionAparna Banerjee v. Tapan Banerjee,
SectionRam Sarup v. Chimman Lal and Ors., Smt.
Vimla Devi v. Smt. Maya Devi Ors., Dr.
Giovanni Marco Muzzu (Dr.). In ref. which the
High Courts have dealt with the meaning
and purport of the expressions like `ordinary
resident’ and `ordinarily resides’ and taken
the view that the question whether one is
ordinarily residing at a given place depends
so much on the intention to make that place
ones ordinary abode.”

16. The reliance was also placed upon the decision of
Sm. Kamla Vs. Bhanu Mal, reported in AIR 1956
Allahabad 328, wherein following observations are
relevant:

“……….. When a person leaves the place where
he has been residing as permanent resident for
good i.e., with no intention to come back goes
to some other place to live there, the former
place where he used to live, ceases to be his
ordinary place of residence and the latter place
becomes his ordinary place of residence.

The question of residence is largely a question

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of intention. In the case of minors no question
of intention arises. But the Court will take into
consideration their actual place of residence at
the time of the application and regard that as
their ordinary place of residence.”

17. In the present case, after the respondent came to
India along with minor Vihaan, on 14thAugust,
2015, and after seeing his father’s condition, he
sent following e-mails to the appellant. For the sake
of ready reference, such e-mails are reproduced
herein below:

On 15 August, 2015 at 11:21 PM, Abhishek
Binaykia to Swati Binaykia.

Swati,
As you are aware, I had to come urgently to India
as my dad was unwell. After speaking with the
doctors and evaluating the situation herein, I need
to stay in India to take care of my parents. It is my
responsibility to care for them. Obviously, you can
come here and we will move into separate
apartment.

Abhi.

On 17 August, 2015 at 09:53 PM, Abhishek
Binaykia to Swati Binaykia.

Swati,
As I have told you multiple times, I had to
urgently leave for India because I got the message
that my father was very sick. I had to take Vihaan
with me because you were busy in your school and
there was no one to care for him after all I have
been the one caring for Vihaan single handedly for
a long time. I have also repeatedly requested that
you come here, and I have even offered to get a
separate apartment for us because you do not like
my folks. But even today, you are not exhibiting
any responsibility towards either Vihaan or myself,
which is in line with your past behaviour as well.

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Given the current situation with me having to
stay in India to care for my father, and me being
the sole earning member of the family, it will be
extremely difficult to continue our expenses in the
US (rent, etc.)- I have requested you many times to
come here to India and stay with me in a separate
apartment. But you have not responded. From my
side, I will be terminating the apartment lease by
the end of month, so you should plan to be here
before then. I will send you that ticket for the day
you think you can come here. I hope you
understand and that we don’t have the same
conversation repeatedly.

Abhi.

Swati Binaykia to Abhishek Binaykia

Abhi,

I am ready to give this relationship last shot. You
need to come here and let good sense prevail into
you for Vihu. We need to start afresh.

As far as me coming to India, that is not happening.
I know my options here if you don’t get Vihaan so
please think from your heart and not what others
have been telling you.

Swati.

Swati Binaykia to Abhishek Binaykia

Trust me and you don’t have to be scared after
what you have done. Just be sorry and come back.

PM, Swati Binaykia to Abhishek Binaykia

Abhi, every communication I am trying to make with
you, are cutting me off. What are you achieving
with that.

Anyways I want to know when are you planning to
get Vihaan back. I really need you to bring him back
as soon as possible, don’t test a mother. I will really
have to take a legal action then.

Please bring him back and resolve our issues for

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once and all whether being together or separate.
Swati.

18. Despite the aforementioned emails, the appellant
clearly refused to join the respondent as can be
seen from aforementioned e-mails exchanged
between them. The respondent also left his job and
surrendered his rented accommodation. Such
actions showed his intention to live permanently in
Ahmedabad, India. Moreover, the appellant despite
being aware about the fact that the minor was with
the respondent filed missing child
reports/complaints against the respondent on
17.08.2015 and 20.08.2015. Moreover, despite
having filed such reports/complaints, the appellant
invited the respondent to join her in USA with a
view to trap him.

19. In view of the above, the requirements of Section 9
of the Guardian SectionWards Act, 1890, and Section
7(1)(g) of the Family Courts Act, 1984 are duly
fulfilled. Moreover, the marriage of the appellant
and the respondent was solemnized at Ahmedabad
and the respondent’s family home is at Ahmedabad
and the respondent has come to reside in such
family home at Ahmedabad and the respondent has
not taken minor Vihaan to any obscure place. In
view of such facts also, this Court has jurisdiction.

20. The attempt of the respondent to acquire US
citizenship was only with a view to facilitating his
work related travel and greater ease in doing

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business. It did not amount to any intention to
permanently settle down in U.S.A. Even otherwise,
the respondent has chosen not to acquire US
citizenship.

21. The reliance was also placed upon the decision of
the Hon’ble Supreme Court in the case of Sarita
Sharma Vs. Sushil Sharma reported in (2000) 3
SCC 14. In that case, the wife took the children
from the husband’s residence and later on brought
them to India inspite of the American Court’s order.
When the husband filed the writ of habeas corpus
against the wife, the Delhi High Court directed the
wife to return the children to the husband. When
the wife filed appeal, the Hon’ble Supreme Court
allowed the appeal and the children were allowed to
stay in the custody of the wife. In the course of the
judgment, the Hon’ble Supreme Court observed that
even the decree passed by the American Courts,
though a relevant factor, cannot override the
consideration of welfare of the minor children.

22. The reliance was laso placed upon decision in the
case of Dhanwati Joshi Vs. Madhav Unde,
reported in (1998) 1 SCC 112. In this case, mother
removed the child from U.S.A. to India while father
obtained an order from the US Court to have the
custody of the child in U.S.A. The Hon’ble Supreme
Court held that the Court in India has to take an
independent decision on merits on the basis of
elaborate inquiry in regard to custody of the child

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having regard to his welfare and the order of
foreign Court is only one of the factors for
consideration. The question of welfare being a
matter of paramount consideration is required to be
decided by the Indian Courts and the order if any
passed by the foreign Courts is not conclusive, but
merely one of the factors to be taken into account
while exercising discretion.

23. The reliance was also placed upon the following
observation of the Hon’ble Supreme Court in the
case of Surya Vadanan Vs. State of Tamil Nadu
and Others, reported in (2015) 5 SCC 450, which
have been narrated by this Court in the judgment
passed in Special Civil Application No.20027 of 2017
in which this Court has clearly laid down the factors,
which need to be taken into consideration by this
Court while deciding the issue of custody of minor
which are as under:

“(a) The nature and effect of the interim or
interlocutory order passed by the foreign
court.

(b) The existence of special reasons for
repatriating or not repatriating the child to
the jurisdiction of the foreign court.

(c) The repatriation of the child does not
cause any moral or physical or social or
cultural or psychological harm to the child,
nor should it cause any legal harm to the
parent with whom the child is in India. There
are instances where the order of the foreign
court may result in the arrest of the parent
on his or her return to the foreign country.

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[35] In such cases, the domestic court is also
obliged to ensure the physical safety of the
parent.

(d) The alacrity with which the parent moves
the concerned foreign court or the concerned
domestic court is also relevant. If the time
gap is unusually large and is not reasonably
explainable and the child has developed firm
roots in India, the domestic court may be well
advised to conduct an elaborate inquiry.”

24. The reliance placed by the appellant upon the
judgment of the Delhil High Court in the case of SectionMr.
Paul Mohinder Gahun vs. Mrs. Selina Gahun, is
misplaced. The decision in this case clearly runs
counter to the decision of the Hon’ble Supreme
Court in the case of Dhanwanti Joshi (Supra) and
Sarita Sharma (Supra), where it is clearly laid
down that the order of the foreign Court is only one
of the factors to be taken into account while
deciding the welfare of the minor. The decision of
Gahun’s case clearly runs counter to the well settled
legal position repeatedly enunciated by the Hon’ble
Supreme Court in various judgments.

25. The reliance placed by the appellant on the decision
of Surya Vadanan (Supra) is also misplaced. The
facts of that case are completely distinguishable
from the present case. In paragraph No.59 of the
judgment, the Hon’ble Supreme Court has observed
that though Mayura filed proceedings for divorce in
India way back in August, 2012, she made no
serious effort to obtain any interim order in her
favour regarding the custody of the children and

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she also did not persuade the trial Court for more
than two years to pass an interim order for the
custody of the children. On the other hand, the
foreign Court acted promptly on the asking of Surya
and passed an interim order regarding the custody
of the children, thereby making the first strike
principles applicable.

26. In the present case, if the doctrine of first strike
principle is applicable, it clearly favours the
respondent. Not only did the respondent file the
proceedings for protecting the custody., but the
respondent was also protected by interim order
passed on 3rd September and 11th September, 2015,
much before the ex-parte ad interim order was
granted by the U.S. Court in favour of the appellant
on account of her willful suppression. Even
thereafter, the respondent has pursued the matter
with diligence and the entire Suit has been disposed
of within the time limit granted by the Hon’ble
Supreme Court. The respondent has shown
diligence and respect to the orders of the Courts.

27. The reliance is also placed upon the latest decision
in the case of Nithya Anand Raghavan Vs. State
of NCT of Delhi Another, reported in 2017
SCC Online SC 694, wherein the observations in
paragraph No.24 are relevant:

“24. We must remind ourselves of the
settled legal position that the concept of
forum convenience has no place in wardship

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jurisdiction. Further, the efficacy of the
principle of comity of courts as applicable to
India in respect of child custody matters has
been succinctly delineated in several
decisions of this Curt. We may usefully refer
to the decision in the case of Dhanwanti
Joshi v Madhav Unde13. In Paragraphs 28 to
30, 32 and 33 of the reported decision, the
Court observed thus:-

“28. The leading case in this behalf is the
one rendered by the Privy Council in 1951,
in McKee v. McKee. In that case, the
parties, who were American citizens, were
married in USA in 1933 and lived there till
December 1946. But they had separated in
December 1940. On 17-12-1941, a decree
of divorce was passed in USA and custody
of the child was given to the father and
later varied in favour of the mother. At that
stage, the father took away the child to
Canada. In habeas corpus proceedings by
the mother, though initially the decisions
of lower courts went against her, the
Supreme Court of Canada gave her
custody but the said Court held that the
father could not have the question of
custody retried in Canada once the
question was adjudicated in favour of the
mother in the USA earlier. On appeal to the
Privy Council, Lord Simonds held that in
proceedings relating to custody before the
Canadian Court, the welfare and happiness
of the infant was of paramount
consideration and the order of a foreign
court in USA as to his custody can be given
due weight in the circumstances of the
case, but such an order of a foreign court
was only one of the facts which must be
taken into consideration. It was further
held that it was the duty of the Canadian
Court to form an independent judgment on
the merits of the matter in regard to the
welfare of the child. The order of the
foreign court in US would yield to the
welfare of the child. “Comity of courts

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demanded not its enforcement, but its
grave consideration”. This case arising
from Canada which lays down the law for
Canada and U.K. has been consistently
followed in latter cases. This view was
reiterated by the House of Lords in SectionJ v. C.
This is the law also in USA (see 24
American Jurisprudence, para 1001) and
Australia. (See Khamis v. Khamis)

29. However, there is an apparent
contradiction between the above view and
the one expressed in H. (infants), and in E.
(an infant), to the effect that the court in
the country to which the child is removed
will send back the child to the country from
which the child has been removed. This
apparent conflict was explained and
resolved by the Court of Appeal in 1974 in
L. (minors) (wardship : jurisdiction), and in
R. (minors) (wardship : jurisdiction), It was
held by the Court of Appeal in L., that the
view in McKee v. McKee is still the correct
view and that the limited question which
arose in the latter decisions was 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. In the case of (a) a
summary inquiry, the court would return
custody to the country from which the
child was removed unless such return
could be shown to be harmful to the child.
In the case of (b) an elaborate inquiry, the
court could go into the merits as to where
the permanent welfare lay and ignore the
order of the foreign court or treat the fact
of removal of the child from another
country as only one of the circumstances.
The crucial question as to whether the
Court (in the country to which the child is
removed) would exercise the summary or
elaborate procedure is to be determined
according to the child’s welfare. The
summary jurisdiction to return the child is
invoked, for example, if the child had been

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removed from its native land and removed
to another country where, maybe, his
native language is not spoken, or the child
gets divorced from the social customs and
contacts to which he has been
accustomed, or if its education in his
native land is interrupted and the child is
being subjected to a foreign system of
education, — for these are all acts which
could psychologically disturb the child.

Again the summary jurisdiction is
exercised only if the court to which the
child has been removed is moved promptly
and quickly, for in that event, the Judge
may well be persuaded that it would be
better for the child that those merits
should be investigated in a court in his
native country on the expectation that an
early decision in the native country could
be in the interests of the child before the
child could develop roots in the country to
which he had been removed. Alternatively,
the said court might think of conducting an
elaborate inquiry on merits and have
regard to the other facts of the case and
the time that has lapsed after the removal
of the child and consider if it would be in
the interests of the child not to have it
returned to the country from which it had
been removed. In that event, the
unauthorised removal of the child from the
native country would not come in the way
of the court in the country to which the
child has been removed, to ignore the
removal and independently consider
whether the sending back of the child to its
native country would be in the paramount
interests of the child. (See Rayden
Jackson, 15th Edn., 1988, pp. 1477-79;
Bromley, Family law, 7th Edn., 1987.) In R.
(minors) (wardship : jurisdiction), it has
been firmly held that the concept of forum
convenience has no place in wardship
jurisdiction.

30. We may here state that this Court in

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SectionElizabeth Dinshaw v. Arvind M. Dinshaw,
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), which case, as pointed out by us
above has been explained in L. 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 and
SectionJ v. C and the distinction between
summary and SectionNithya Anand Raghavan vs
State Of Nct Of Delhi on 3 July, 2017
elaborate inquiries as stated in L. (infants),
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.

31. xxxx xxxx xxxx

32. In this connection, it is necessary to
refer to the Hague Convention of 1980 on
“Civil Aspects of International Child
Abduction”. As of today, about 45
countries are parties to this Convention.
India is not yet a signatory. Under the
Convention, any child below 16 years who
had been “wrongfully” removed or retained
in another contracting State, could be
returned back to the country from which
the child had been removed, by application

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to a central authority. Under SectionArticle 16 of
the Convention, if in the process, the issue
goes before a court, the Convention
prohibits the court from going into the
merits of the welfare of the child. SectionArticle 12
requires the child to be sent back, but if a
period of more than one year has lapsed
from the date of removal to the date of
commencement of the proceedings before
the court, the child would still be returned
unless it is demonstrated that the child is
now settled in its new environment. SectionArticle
12 is subject to SectionArticle 13 and a return
could be refused if it would expose the
child to physical or psychological harm or
otherwise place the child in an intolerable
position or if the child is quite mature and
objects to its return. In England, these
aspects are covered by the Child
Abduction and SectionCustody Act, 1985.

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 v.
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. As
recently as 1996-1997, it has been held in
P (A minor) (Child Abduction: Non-
Convention Country), 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

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to apply the provisions of SectionArticle 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.”
(emphasis supplied)

28. The following factors overwhelmingly show that the
welfare of minor Vihaan is with the respondent:

1. The respondent is well educated and earns well.

The appellant is not even a graduate. In the U.S.
Court, she has admitted that she will need child
support, and even if she substantially higher than
what she prays now. There is no evidence to
show how she prays now. There is no evidence to
show how she can afford the rent.

2. The respondent is living with his parents. Vihaan
is already admitted in Mahatma Gandhi
International School, which offers IB Course.

3. The appellant is living with strangers and has
only one room for her accommodation. There is
no document or lease agreement showing on
what terms she is living with the strangers. Once
the appellant goes to her job, there is non on to
take care of minor Vihaan. She has claimed that
she will need to put Vihaan in child care in U.S.A.

4. The appellant has past history of unstable mental
behaviour – suicide attempt by slicing writs,
jumping our of running car and repeated threats

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to commit suicide.

5. The appellant’s ethical standards are also
questionable as she was arrested for shoplifting.
Later on, it was treated as detention and the
appellant was not prosecuted on payment of
community service charges.

6. The appellant has accepted that private schools
in California are expensive and with fees around
3000 USD per month. She has also accepted that
if a good public school district is chosen, the rent
there will be substantially higher than what she
pays now. There is no evidence to show how she
can afford the rent.

7. The appellant claims to be earning a salary 3000

– 4000 USD a month. Out of which, she claims to
be paying a monthly rent of 650 USD. She also
claims to be incurring other expenses for grocery
and petrol. Hence, from the aforementioned
claims made by the respondent, it is evident that
she hardly has any savings for herself.

8. The learned Family Court interviewed minor
Vihaan before reaching its conclusion on welfare.

9. The appellant has visited minor Vihaan only twice
in the last two years. Although visiting rights are
available to her, she has not exercised the same.

10. When the appellant’s father suffered a heart
attack, she did not even come to India to take
care of him. It shows her nature and her
indifference to people in India. If she does not
take care of her father, it is impossible to expect
her to come and take care of her father-in-law.

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29. In view of aforesaid, the judgment of learned Family
Court, Ahmedabad, requires no interference and the
appeal filed by the appellant is required to be
dismissed with costs.”

30. On 30.08.2019, the Bench had assembled for taking
up specially assigned matters. At that time, Ms.
Garima Malhotra, learned advocate for the
appellant, though this Appeal was not listed, made
a mention seeking audience of the Bench for around
2 hrs. to recapitulate the arguments canvassed on
behalf of the appellant. Learned advocate Mr.
Sharvil Shukhla, for Mr. Umesh Shukla, learned
advocate for the respondent strongly objected to
the request made by learned advocate for the
appellant.

We made it clear to the learned learned counsel for
the appellant that her request cannot be acceded to
as the Bench is separated and have to specially
assembled to hear the arguments, which would
disrupt the proceeding of two Courts. However,
liberty was given to the leaned advocate for the
appellant to place on record the judgment/s on
03.09.2019, if any, in the appeal with a copy to the
learned advocate for the respondent for
consideration of this Court. Similar liberty was given
to the learned advocate for the respondent.
Accordingly, learned advocate for the appellant as
well as learned advocate for the respondent placed

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on record the decisions of the Hon’ble Supreme
Court in the case of Lahari Sakhamuri Vs. Sobhan
Kodali reported in AIR 2019 SC 2881 and Prateek
Gupta Vs. Shilpi Gupta and Ors. reported in (2018) 2
SCC 309 respectively, which we have considered in
this judgment.

31. The main thrust of the arguments of the learned
counsel for the defendant is that the Suit filed by
the plaintiff in Family Court, Ahmedabad, is barred
by Section 9(1) of the G W Act as this Section
confers jurisdiction of the Court having “Closest
Concerned” and “Most Intimate Contact” for the
minor child, would have jurisdiction for the custody
of minor child and learned trial Judge ought to have
considered the paramount interest of the minor and
the learned trial Judge ought to have given due
weightage to the orders passed by the superior
Court, California in the petition for the custody
initiated by the defendant. It thus, urged that
learned trial Judge Court ought not have granted
custody of the minor to the plaintiff.

32. On the other hand, learned counsel for the plaintiff
relying upon various decision of the Hon’ble
Supreme Court has submitted that the pivotal
consideration for the Court should be the child
welfare and undue emphasize should not be given
to the provisions of Section 9 of the G W Act
unless grave risk of harm to the person or property
of the minor is taken into consideration and

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established and it is urged that the impugned
judgment does not call for any interference in this
appeal.

33. The Hon’ble Supreme Court in the case of Ruche
Majoo (Supra) has held as under:

23. Section 9 of the Guardian and SectionWards Act,
1890 makes a specific provision as regards the
jurisdiction of the Court to entertain a claim for
grant of custody of a minor. While sub- Section (1)
of Section 9 identifies the court competent to pass
an order for the custody of the persons of the
minor, sub-sections (2) (3) thereof deal with
courts that can be approached for guardianship of
the property owned by the minor. Section 9(1)
alone is, therefore, relevant for our purpose. It says:

“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.”

24. It is evident from a bare reading of the above
that the solitary test for determining the jurisdiction
of the court under Section 9 of the Act is the
`ordinary residence’ of the minor. The expression
used is “Where the minor ordinarily resides”. Now
whether the minor is ordinarily residing at a given
place is primarily a question of intention which in
turn is a question of fact. It may at best be a mixed
question of law and fact, but unless the
jurisdictional facts are admitted it can never be a
pure question of law, capable of being answered
without an enquiry into the factual aspects of the
controversy.

25. It is evident from a bare reading of the above
that the solitary test for determining the jurisdiction
of the court under Section 9 of the Act is the
‘ordinary residence’ of the minor. The expression

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used is “Where the minor ordinarily resides”. Now
whether the minor is ordinarily residing at a given
place is primarily a question of intention which in
turn is a question of fact. It may at best be a mixed
question of law and fact, but unless the
jurisdictional facts are admitted it can never be a
pure question of law, capable of being answered
without an enquiry into the factual aspects of the
controversy.

26. The factual aspects relevant to the question of
jurisdiction are not admitted in the instant case.
There are serious disputes on those aspects to
which we shall presently refer.

27. We may before doing so examine the true
purpose of the expression ‘ordinarily resident’
appearing in Section 9(1) (supra). This expression
has been used in different contexts and statutes
and has often come up for interpretation. Since
liberal interpretation is the first and the foremost
rule of interpretation it would be useful to
understand the literal meaning of the two words
that comprise the expression. The word ‘ordinary’
has been defined by the Black’s Law Dictionary as
follows:

“Ordinary (Adj.) :Regular; usual; normal;
common; often recurring; according to
established order; settled; customary;
reasonable; not characterized by peculiar or
unusual circumstances; belonging to,
exercised by, or characteristic of, the normal
or average individual.”

The word ‘reside’ has been explained similarly as
under:

“Reside: live, dwell, abide, sojourn, stay,
remain, lodge. (SectionWestern-Knapp
Engineering Co. v. Gillbank, C.C.A Cal.,
129 F2d 135, 136.) To settle oneself or a
thing in a place, to be stationed, to remain or
stay, to dwell permanently or continuously,
to have a settled abode for a time, to have
one’s residence or domicile; specifically, to
be in residence, to have an abiding place, to
be present as an element, to inhere as

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quality, to be vested as a right. (State ex rel.
Bowden v. Jensen Mo., 359 S.W.2d 343,

349.)”

28. In Websters dictionary also the word ‘reside’
finds a similar meaning, which may be gainfully
extracted:

“1. To dwell for a considerable time; to make
one’s home; live. 2. To exist as an attribute
or quality with in. 3. To be vested: with in”

29. SectionIn Mrs. Annie Besant v. Narayaniah AIR
1914 PC 41 the infants had been residing in the
district of Chingleput in the Madras Presidency.
They were given in custody of Mrs. Annie Besant for
the purpose of education and were getting their
education in England at the University of Oxford. A
case was, however, filed in the district Court of
Chingleput for the custody where according to the
plaintiff the minors had permanently resided.
Repeating the plea that the Chingleput Court was
competent to entertain the application their
Lordships of the Privy Council observed:
” …The district court in which the suit was instituted
had no jurisdiction over the infants except such
jurisdiction as was conferred by the Guardians and
SectionWards Act 1890. By the ninth Section of that Act the
jurisdiction of the court is confined to infants
ordinarily residing in the district. It is in their
Lordship’s opinion impossible to hold that the
infants who had months previously left India with a
view to being educated in England and going to
University had acquired their ordinary residence in
the district of Chingleput.”

29. SectionIn Jagir Kaur v. Jaswant Singh, this Court was
dealing with a case under Section 488 Cr.P.C and
the question of jurisdiction of the Court to entertain
a petition for maintenance. The Court noticed a near
unanimity of opinion as to what is meant by the use
of the word “resides” appearing in the provision and
held that “resides” implied something more than a
flying visit to, or casual stay at a particular place.
The legal position was summed up in the following
words:

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“8……..Having regard to the object sought to
be achieved, the meaning implicit in the words
used, and the construction placed by decided
cases there on, we would define the word
“resides” thus: a person resides in a place if
he through choice makes it his abode
permanently or even temporarily; whether a
person has chosen to make a particular place
his abode depends upon the facts of each
case.”

30. SectionIn Kuldip Nayar V. Union of India the
expression “ordinary residence” as used in the
SectionRepresentation of People Act, 1950 fell for
interpretation. This Court observed:

“243. Lexicon refers to Cicutti v. Suffolk
County Council (1980) 3 All ER 689 to
denote that the word “ordinarily” is primarily
directed not to duration but to purpose. In
this sense the question is not so much where
the person is to be found “ordinarily”, in the
sense of usually or habitually and with some
degree of continuity, but whether the quality
of residence is “ordinary” and general, rather
than merely for some special or limited
purpose.

244. The words “ordinarily” and “resident”
have been used together in other statutory
provisions as well and as per Law Lexicon
they have been construed as not to require
that the person should be one who is always
resident or carries on business in the
particular place.

245. The expression coined by joining the two
words has to be interpreted with reference to
the point of time requisite for the purposes of
the provision, in the case of Section 20 of the
RP Act, 1950 it being the date on which a
person seeks to be registered as an elector in
a particular constituency.

246. Thus, residence is a concept that may
also be transitory. Even when qualified by the
word “ordinarily” the word “resident” would
not result in a construction having the effect
of a requirement of the person using a

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particular place for dwelling always or on
permanent uninterrupted basis. Thus
understood, even the requirement of a
person being “ordinarily resident” at a
particular place is incapable of ensuring
nexus between him and the place in
question.”

31. Reference may be made to
Bhagyalakshim V. K.N. Narayan Rao , SectionAparna
Banerjee v. Tapan Banerjee, SectionRam Sarup v.
Chimman Lal, SectionSmt.Vimla Devi v. Smt. Maya
Devi and in re: Dr. Giovanni Marco Muzzu in
which the High Courts have dealt with the
meaning and purport of the expressions like
‘ordinary resident’ and ‘ordinarily resides’
and taken the view that the question whether
one is ordinarily residing at a given place
depends so much on the intention to make
that place ones ordinary ”

34. The Hon’ble Supreme Court thereafter, considering
the pleadings and the Emails exchanged between
the parties to deny the custody of the minor to the
respondent father by observing in para 45 as under:

“It is difficult to appreciate how the
respondent could in the light of the above
communications still argue that the decision
to allow the appellant and master Kush to
stay back in India was taken under any
coercion or duress. It is also difficult to
appreciate how the respondent could change
his mind so soon after the above E-mails and
rush to a Court in U.S. for custody of the
minor accusing the appellant of illegal
abduction, a charge which is belied by his
letter dated 19th July, 2008 and the E-mails
extracted above. The fact remains that Kush
was ordinarily residing with the appellant his
mother and has been admitted to a school,
where he has been studying for the past
nearly three years. The unilateral reversal of

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a decision by one of the two parents could
not change the fact situation as to the minor
being an ordinary resident of Delhi, when the
decision was taken jointly by both the
parents.”

35. It is thus, imminently clear that in case of Ruchi
Majoor (Supra), the parties had taken joint decision
that the minor was remained with the mother in
Delhi and thereafter, a unilateral decision by one of
the parents cannot change the fact situation that
the minor was “ordinary residence” of Delhi.

36. As the doctrine of “Closest Concerned” and “Most
Intimate Contact”, the reliance placed by the
learned counsel for the defendant on the decision of
the Hon’ble Supreme Court in the case Smt.
Surinder Sandhi Vs. Habax Sindhu Sandhu (1984) 3
SCC 698, Shilpa Aggarwal VIS Aviral Mittal (2010) 1
SCC 591, Dr. V. Ravichandran Vls. U0I and ors.
2010(1) SCC 174, Surya Vadanan V/s. State of Tamil
Nadu 2015 (5) SCC 450, Elizabeth Dinshaw V/s
Arvand M. Dinshaw, wherein it has been held that
the jurisdiction of the Court under GW Act is
determined on the basis of the “ordinary residence”
of the minor within the area of which the Court
exercise jurisdiction and that Court which has
“Closest Concerned” and “Most Intimate Contact”
with the Chid, would have jurisdiction to
entertaining the proceeding regarding the custody
of the minor. In the case of Surya Vadanan (Supra),
the Hon’ble Supreme Court has held as under:

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(Paras 39.2 to 39.4 and 39.6 and 40)

“39.2 One of the factors to be considered whether a
domestic court should hold a summary inquiry or an
elaborate inquiry for repatriating the child to the
jurisdiction of the foreign court is the time gap in
moving the domestic court for repatriation. The
longer the time gap, the lesser the inclination of the
domestic courts to go in for a summary inquiry.
39.3 An order of a foreign court is one of the
factors to be considered for the repatriation of a
child to the jurisdiction of the foreign court. But that
will not override the consideration of welfare of the
child. Therefore, even where the removal of a child
from the jurisdiction of the foreign court goes
against the orders of that foreign court, giving
custody of the child to the parent who approached
the foreign court would not be warranted if it were
not in the welfare of the child.

39.4 Where a child has been removed from the
jurisdiction of a foreign court in contravention of an
order passed by that foreign court where the
parties had set up their matrimonial home, the
domestic court must consider whether to conduct
an elaborate or summary inquiry on the question of
custody of the child. If an elaborate inquiry is to be
held, the domestic court may give due weight to
the order of the foreign court depending upon the
facts and circumstances in which such an order has
been passed.

40. On the facts of the case, this court held that:
(Ruchi Majoo case SCC p.504, Para 67)
“repatriation of the minor to the United
States, on the principle of “comity of
courts” does not appear to us to be an
acceptable option worthy of being
exercised at that stage.”

Accordingly, it was held that the “Interest of the
minor shall be better served if he continued (to be)
in the custody of his mother [Ruchi Majoo].”

37. In the latest decision of Lahiri Sakhamuri (Supra) on

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which reliance is placed by the learned counsel for
the defendant, which is held in paras 49 to 51 as
under:

“49. The crucial factors which have to be kept in
mind by the Courts for gauging the welfare of the
children equally for the parents can be inter alia,
delineated, such as (1) maturity and judgment;
(2) mental stability; (3) ability to provide access
to schools; (4) moral character; (5) ability to
provide continuing involvement in the
community; (6) financial sufficiency and last but
not the least the factors involving relationship
with the child, as opposed to characteristics of
the parent as an individual.

50. While dealing with the younger tender year
doctrine, Janusz Korczar a famous Polish−Jewish
educator childrens author observed children
cannot wait too long and they are not people of
tomorrow, but are people of today. They have a
right to be taken seriously, and to be treated with
tenderness and respect. They should be allowed
to grow into whoever they are meant to be − the
unknown person inside each of them is our hope
for the future. Child rights may be limited but
they should not be ignored or eliminated since
children are in fact persons wherein all
fundamental rights are guaranteed to them
keeping in mind the best interest of the child and
the various other factors which play a pivotal role
in taking decision to which reference has been
made taking note of the parental autonomy which
courts do not easily discard.

51. The doctrines of comity of courts, intimate
connect, orders passed by foreign courts having
jurisdiction in the matter regarding custody of the
minor child, citizenship of the parents and the
child etc., cannot override the consideration of
the best interest and the welfare of the child and
that the direction to return the child to the
foreign jurisdiction must not result in any
physical, mental, psychological, or other harm to
the child. Taking a holistic consideration of the
entire case, we are satisfied that all the criteria

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such as comity of courts, orders of foreign court
having jurisdiction over the matter regarding
custody of the children, citizenship of the spouse
and the children, intimate connect, and above all,
welfare and best interest of the minor children
weigh in favour of the respondent (Sobhan
Kodali) and that has been looked into by the High
Court in the impugned judgment in detail. That
needs no interference under SectionArticle 136 of the
Constitution of India.”

38. In the case of Nithya Anand Raghvan Vs. State
of NCT of Delhi Anr. reported in reported in
2017 SCC Online SC 694 in para 49 it is held
under:

“49. We once again reiterate that the exposition in
the case of Dhanwanti Joshi (supra) is a good law
and has been quoted with approval by a three-
judge bench of this Court in V. Ravi Chandran
(supra). We approve the view taken in Dhanwanti
Joshi (supra), inter alia in paragraph 33 that so far
as non-convention countries are concerned, the law
is that the Court in the country to which the child is
removed while considering the question must bear
in mind 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. The summary jurisdiction to return
the child be exercised in cases where the child had
been removed from its native land and removed to
another country where, may be, his native
language is not spoken, or the child gets divorced
from the social customs and contacts to which he
has been accustomed, or if its education in his
native land is interrupted and the child is being
subjected to a foreign system of education, – for
these are all acts which could psychologically
disturb the child. Again the summary jurisdiction be
exercised only if the court to which the child has
been removed is moved promptly and quickly. The
overriding consideration must be the interests and
welfare of the child.”

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39. In latest decision of the Hon’ble Supreme Court in
the case of Pratik Gupta Vs. Shilpi Gupta Ors.
reported in (2018) 2 SCC 309, it is held in para 53
as under:

“The e-mails exchanged by the parties as have
been placed on records do suggest that they had
been in touch since the child was brought to India
and even after the first order dated 28.05.2015 was
passed by the court in US. In the said e-mails, they
have fondly and keenly referred to both the sons
staying in each others company, expressing
concern about their illness and general well-being
as well. As has been claimed by the appellant, the
child is growing in a congenial environment in the
loving company of his grand-parents and other
relatives. He has been admitted to a reputed school
and contrary to the nuclear family environment in
US, he is exposed to a natural process of grooming
in the association of his elders, friends, peers and
playmates, which is irrefutably indispensable for
comprehensive and conducive development of his
mental and physical faculties. The issue with regard
to the repatriation of a child, as the precedential
explications would authenticate has to be
addressed not on a consideration of legal rights of
the parties but on the sole and preponderant
criterion of the welfare of the minor. As
aforementioned, immediate restoration of the child
is called for only on an unmistakable discernment of
the possibility of immediate and irremediable harm
to it and not otherwise. As it is, a child of tender
years, with malleable and impressionable mind and
delicate and vulnerable physique would suffer
serious set-back if subjected to frequent and
unnecessary translocation in its formative years. It
is thus imperative that unless, the continuance of
the child in the country to which it has been
removed, is unquestionably harmful, when judged
on the touchstone of overall perspectives,
perceptions and practicabilities, it ought not to be
dislodged and extricated from the environment and

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setting to which it had got adjusted for its well-
being.”

40. It is clear from the decision of the Hon’ble Supreme
Court that while considering the question of the
custody of the minor child, the doctrine of comity of
Court intimate contact and orders passed by the
Foreign Court, etc. cannot override consideration of
the best interest and welfare of the child. The Court
has to consider on the basis of evidence adduced
before it whether the direction to return the child to
the Foreign jurisdiction would result into in physical,
mental, psychological or other harm to the minor.

41. The undisputed fact emerging from the ocular and
documentary evidence adduced by the parties can
be adumbrated as under:

a. The defendant is living along in US in a
small accommodation. She is working workman
and she has herself admitted in the proceedings
before the US Court that in her temporary
absence in the house during the working hours,
she would need a child support. It is thus, clear
that in absence of defendant, if the child is
returned to his native country, he would be left
with strangers whereas here in Ahmedabad, he
has the benefit of company of his grandparents.

b. It also emerges from the evidence that in
past, the defendant had exhibited violative
behaviour and had attempted to suicide by

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slicing her wrist. The defendant herself has
admitted in her evidence that once she had
jumped out of running car, which has been tried
to explain it away by saying that she had done
so to save minor.

c. The defendant was also booked and
detained for shoplifting but was not prosecuted
for the same as she had agreed to pay
community service charges.

d. The school education especially provide
school education in US is quite expensive and it
is very doubtful whether the defendant after
defraying household and other incidental
expenses, would be able to afford decent
schooling for the minor.

42. Learned trial Judge has considered all the
factors , which are relevant for the best interest
and welfare of the minor child for granting the
custody to the plaintiff, reasons assigned by the
learned trial Judge are cogent and we are in
complete agreement therewith. Hence, in our
view, the impugned judgment and order of
learned trial Judge does not warrant any
interference in this appeal.

43. Hence, the appeal stands dismissed
accordingly.

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R P, if summoned, be transmitted to the trial
Court forthwith.

Parties to bear their own costs.

(S.R.BRAHMBHATT, J)

(A.G.URAIZEE, J)
YNVYAS

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