MRS. SHILPA AGGARWALversusMR. AVIRAL MITIAL & ANR.

                    [2009) 16 (ADDL.) S.C.R. 287

                     MRS. SHILPA AGGARWAL                               A
                                   v.
                     MR. AVIRAL MITIAL & ANR.
                 (Criminal Appeal No. 2357 of 2009)
                         DECEMBER 9, 2009
                                                                        8
         [AlTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

         Child and Family Welfare:

          Custody of child - Girl child born in U.K. to Indian couple   c
    having status of permanent residents of U.K. - Wife taking
     child to India - English court in ex- parte proceedings declared
     the minor a ward of court and ordered her return to its
    jurisdiction - High Court of Delhi directing the return of minor
    to jurisdiction of English courts - HELD: There is no reason
                                                                        0
     to interfere with order of High court since the question of
    interest of the minor, who is a British citizen, still has to be

-   considered by the Court in UK. which is closest to the issue
    involving the custody of the minor - Doctrine of comity of
    courts.
                                                                        E
         International Law:

        Doctrine of comity of courts - Applicability_\of.

         The appellant was married on 4~ 11.2003 to
    respondent no. 1, who was working in the United F
    Kingdom. The couple acquired the status of permanent
    residents of the U.K. in 2004. A girl child was born to
    them in U.K. on 20.2.2006. The child acquired British
    citizenship by birth and was the holder of British
    passport, although her parents continued to hold Indian G
    passports. After the birth of the child, differences arose
    between the couple. The appellant came to India with the
    child and did not return to the U.K. At the instance of
                                  287                                   H
    288 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A respondent no.1, the High Court of Justice, Family
                                                                  .,.
  Division, U.K. by an ex-party order dated 26.11.2009
  directed that the child would remain a ward of the court
  and the appellant would return the minor to its
  jurisdiction. Meanwhile, father of respondent no. 1 filed
B a criminal writ petition before the Delhi High Court on the
  strength of a Special Power of Attorney seeking
  protection and custody of the child. The High Court gave
  the parties an opportunity to explore the possibility of a
  settlement, but in vain. Ultimately, the High Court
c disposed   of the writ petition directing the appellant to
  take, on her own, the child to England, failing which the
  child would be handed over to the writ petitioner, as a
  measure of interim custody, to be taken to England.

       In the instant appeal, the question for consideration
D before the Court was: whether a 31/z year o•d girl child,
  who was born in England of Indian parents and was a
  British citizen by birth, could be kept in the custody of
  the mother residing in India, despite an order passed on
                                                                  ' ..
  26th November, 2008, by the High Court of Justice,
E Family Division, U.K., directing that the child be returned
  to the jurisdiction of the courts of England and Wales.

         Directing the matter to be listed on 15.12.2009 for
    further orders, the Court
F      HELD: 1.1. It is significant to note that having held
  that the High Court of Justice, Family Division, U.K., was
  already in seisin of the matter and had passed an interim
  order of restraint and having further regard to the fact that
  the interests of a 31/z year old minor girl child was
G involved, the Delhi High Court directed that the custody
  of the child be made over to the father in England ;md in
  the alternative to the grand-parents in India who would
  return the child to the jurisdiction of the U.K. courts. Even
  while considering the interests of the minor child, the
H High Court choosing to rely on the doctrine of Comity of
             SHILPA AGGARWAL v. AVIRAL MITIAL & ANR.               289

          Courts, felt that due respect had to be given to the orders     A
          of the U.K. court as the said court was closest to the
          issue involving the custody of the child, who was a

-         British citizen, and would thoroughly examine the claim
          of the appellant and respondent No.1 to be entrusted
          with the custody of the child. [Para 23 and 25] [300-G-H;       B
          301-A; 301-D-G]

               1.2. There is yet another aspect of the matter on
          which the High Court has stressed. The High Court has
          noticed the fact that the couple had set up their
          matrimonial home in Scotland and thereafter in England
                                                                          c
          since 2003. Both of them had been working for gain in
          the U.K. and while the minor was holding a British
          Passport, the parents had acquired permanent resident
          status in the U.K. It is not as if the High Court was
          oblivious of the fact that it was the paramount duty of the     D
    1.,   court to look after the interests of the minor. [Para 24 and
          25] (301-B-D]

              Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw & Anr.
          (1987) 1 sec 42, referred to.                                   E
               1.3. It is but natural that in a matrimonial tussle both
          the parents would want the custody of the child. In this
          tussle, the court is to decide who would be more suited
          to have custody of the child. The High Court appears to
                                                                          F
          have taken the correct approach in the matter. Although,
          on first impression, it would appear that the interests of
          the minor would best be served if she is allowed to remain
          with the appellant, the order dated 26th November, 2008,
          passed by the High Court of Justice, Family Division, U.K.,
          which admittedly is an ex-parte order cannot be lost sight      G
          of. [Para 26] (302-A-B]
    ,.;

               2.1. It is evident from the order dated 26.11.2008
          passed by the High Court of Justice, Family Division, U.K.
          that except for insisting that the minor be returned to its     H
    290 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A jurisdiction, the English court did not intend to separate
  the child from the appellant until a final decision was
  taken with regard to the custody of the child. The ultimate
  decision in that regard has to be left to the English courts
  having regard to the nationality of the child and the fact
B that both the parents had worked for gain in the U.K. and
  had also acquired permanent resident status in the U.K.
  The High Court of Delhi has taken into consideration both
  the questions relating to the Comity of Courts as well as
  the interest of the child, which, no doubt, is one of the
c most important considerations in matters relating to
  custody of a child. It has been rightly observed by the
  High Court following the decision in Surinder Kaur's* case
  that it was the English court which had the most intimate
  contact with the issue in question to decide the same.
  [Para 27] [304-A-E]
0
       *Mrs. Surinder Kaur Sandhu vs. Harbax Singh Sandhu
  & Anr. 1984 (3) SCR 422 =(1984)3 SCC 698, relied on

      Sarita Sharma vs. Sushi/ Sharma 2003 (3) SCC 14;
E Rajesh K. Gupta vs. Ram Gopal Agarwala & Ors. = 2005 (3)
   SCR 946 (2005) 5 SCC 359; and Dhanwanti Joshi vs.
                                             =
  Madhav Unde 1997 (5) Suppl. SCR 30 (1998) 1 SCC
  112, referred to.

       2.2. The fact that the child has been declared a ward
F of the English court till she attains majority, is also a
  matter of considerable importance in deciding whether
  the order of the High Court should be interfered with or
  not.The materials produced before the Court and the
  submissions made on behalf of the parties indicate that
G the High Court did not commit any error in relying on the
  doctrine of Comity of Courts since the interest of the
  minor still has to be considered by the U.K. court and the
  interim order passed in the proceedings initiated by
  respondent No.1 is only of an interim nature with a view
H
    SHILPA AGGARWAL v. AVIRAL MITIAL & ANR.             291


to return the child to the jurisdiction of the said court. A
Therefore, there is no reason to interfere with the order
of the High Court. [Para 29 and 30) (304-G-H]

     2.3. However, in order to implement the directions of
the High court, the respondent husband shall provide the
                                                             8
initial expenses of the appellant and the minor for
travelling to and staying in the U.K., for at least a month,
to attend and contest the proceedings initiated by
respondent No.1 before the High Court of Justice, Family
Division, U.K. The respondent-husband to submit a
proposal for making travel arrangements tor· the appellant C
and the minor and their stay in the U.K., at least for a
month. Till then the interim order shall continue to be
operative. [Para 30 and 31) (305-A-C]
                     Case Law Reference:                       D
   2003 (3) sec 14              referred to       para 11
   1984 (3) SCR 422             relied on         para 12
   2005 (3) SCR 946             referred to       para 16
                                                               E
   1997 (5) Suppl. SCR 30       referred to       para 16
   (1987) 1 sec 42              referred to       para 21
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2357 of 2009.                                              F

    From the Judgment & Order dated 7.8.2009 of the High
Court of Delhi at New Delhi in W.P. (Crl.) No. 1553 of 2008.

    P.K. Ghosh, Neeraj K. Sharma, Ghanshyam, Devendra          G
Singh for the Appellant.

    Debol Banerjee, Prabhjit Jauhar, Madhavi Divan, S.S.
Jauhar for the Respondent.

                                                               H
    292 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

A       The Judgment of the Court was delivered by

        ALTAMAS KABIR, J. 1. Leave granted.
       2. The question which we are called upon to decide in this          ..._
  case is whether a 3% year old girl child, who was born in
B England of Indian parents and is a British citizen by birth, can
  be kept in the custody of the mother who is now currently
  residing in India, despite an order passed on 26th November,
  2008, by the High Court of Justice, Family Division, U.K.,
  directing that the child be returned to the jurisdiction of the
c Courts of England and Wales.
       3. This is one of those cases where a minor child below 4
  years of age is the victim of the acrimony of the two ;adults who
  were responsible for her birth. The appellant was married to
D the Respondent No.1 herein on 4th November, 2003, and as
  the Respondent No.1 was already working in the United                )

  Kingdom since November, 2000, the parties sot up their
  matrimonial home first in Scotland and then in England. A girl
  child, who is now 3% years of age, was born c1f the said
  marriage. The appellant herein also obtained employment in
E
  U.K. and both the Respondent No.1 and the appellant acquired
  the status of permanent residents of U.K. in 2004 prior to the
  birth of the child on 20th February, 2006. Being born in the
  United Kingdom, the child acquired British citizenship and was
  the holder of a British passport, although, her parents continued
F to hold Indian passports.

       4. Soon after the birth of the child, some disagreements
  seem to have developed between the couple but, in any event,
  the appellant along with the minor child came to India on 12th
G September, 2008. The Respondent No.1 also came to India
  on 1oth October, 2008, and returned to the United Kingdom on
  14th October, 2008. According to the Respondent No.1, the
  appellant herein was supposed to join him in his family house
  at New Delhi once he arrived in India, but it is his case that she
H chose   not to do so. According to the Respondent No.1, the
             SHILPA AGGARWAL v. AVIRAL MITIAL & ANR.                    293
                       [ALTAMAS KABIR, J.]

    -+   appellant and the minor child were supposed to leave for U.K.          A
         on 9th November, 2008, but the appellant got their tickets
         cancelled on 7th November, 2008, and remained behind in
         India. The Respondent No.1 thereupon started proceedings
         before the High Court of Justice, Family Division, U.K., on 25th
         November, 2008, praying for an order that the minor child be           B
         made a ward of the Court and for a direction upon the appellant
         to return the minor child to the jurisdiction of the said Court. On
     ~
         such ex-parte application, the High Court of Justice, Family
         Division, U.K., on 26th November, 2009, directed the appellant
         herein by an ex-parte order to return the minor child, Ms. Elina,      c
         to the jurisdiction of the said Court. A further direction was given
         for the passport and other international travel documents of the
         minor child to be handed over to the Solicitors of the
         Respondent No.1 within 72 hours of the return of the child and
         the same were not to be released to either party without the
                                                                                D
         permission of the High Court.
     ~
              5. According to the Respondent No.1, since the parties
         had set up their matrimonial home in Scotland, and, thereafter,
         in England, they were subject to the jurisdiction of the Courts
         in U.K. since 2003. In addition, the parties had worked for gain       E
         in U.K. and the minor child was also holding a British passport
         with the parents having acquired permanent resident status in
         U.K. It was thus the case of the Respondent No.1 that the status
         of the minor child in India was that of an "illegal migrant" in view
    _A
         of the directions passed by the English Courts and the child           F
         should be returned to that jurisdiction.

              6. According to the appellant, the proceedings in the
         United Kingdom were taken behind her back and it is only on


-
         1st December, 2008, that she received a copy of the
                                                                                G
         proceedings filed before the High Court of Justice, Family
         Division, U.K. Immediately thereafter, on 4th December, 2008,
    Ji
         Writ Petition (Crl.) No.1553 of 2008 was filed by Mr. Shanti
         Bhushan (father of the Respondent No.I), allegedly on the
         strength of a Special Power of Attorney executed by the
                                                                                H
        294     SUPREME COURT REPORTS [2009] 16 (ADDL.) $.C.R.


    A Respondent No.1 in his favour, seeking protection of the minor
      child before the Delhi High Court and for a direction that custody
      of the minor child be handed over to him. Notice was issued
      on the said writ petition and on 16th December, 2008, the
      appellant was represented before the Delhi High Court through
    B her  learned counsel. Incidentally, it may be indicated that 15th
      December, 2008, was also said to have been fixed by the High
      Court in U.K. for hearing of the petition filed by the Respondent
      No.1 and also for the appearance of the appellant herein.

          7. On 7th January, 2009, the Delhi High Court directed both
    c the parties to appear before the Delhi High Court Mediation
      Centre on 9th January, 2009, to explore the possibility of a
~     settlement and also gave visitation rights to the Respondent
      No.1 to see his minor daughter. It further appears that on 17th
      January, 2009, the minor child was admitted to Apeejay School,
    D Pitampura, Delhi, and the appellant was appointed as the
      Computer Coordinator on 20th January, 2009 in the said
      school. It appears that the mediation proceedings took place           )
      between the parties on 25th February, 2009, but there was no
      positive outcome and, on the other hand, it is the appellant's
    E case that while surfing through her Orkut Profile on 27th April,
      2009, she came to learn that the Respondent No.1 was claiming
      to be "single" as if his marriage with the appellant was not
      subsisting.

    F         8. On 7th August, 2009, the Delhi High Court disposed of
        the writ petition filed by the father of the Respondent No.1 (Writ   A


        Petition (Crl.} No.1553 of 2008) by passing the following order:-

              "At the firsf instance, a period of 14 days be !;~anted to
              Respondent No.2 (Petitioner herein) to take the child of her


                                                                                     -
    G         own to England and join the proceedings beiore the Courts
              of England and Wales, failing which the child be handed
              over to the petitioner to be takE'1 to England as a measure
              of interim custody and thereafter it is for the courts of          .
              England and Wales to determine which parent would be
    H         best suited to have tne custody of the child."
          SHILPA AGGARWAL v. AVIRAL MITIAL & ANR.                  295
                    [ALTAMAS KABIR, J.]
-+        The present appeal has been filed challenging the said           A
      order of the High Court. ·

           9. Appearing for the appellant, Mr. Pallav Shishodia,
      learned Senior Advocate, submitted that while passing the
      impugned order, the Delhi High Court appears to have lost
                                                                           8
      sight of the fact that the interest of the minor is of paramount
      importance in matters relating to custody and particularly in this
      case where the minor was a girl child and was just about 3%
 ..._ years old. The·learned counsel also submitted that the
      proceedings taken in the United Kingdom had been taken
      behind the back of the appellant, without notice to her, despite     C
      the fact that both she and child were in India where the child
      had already been admitted in a school and was being properly
      cared for and looked after by the appellant. Mr. Shishodia
      submitted that in the interest of the minor child, the Delhi High
      Court ought not to have given such directions which had the          D
      effect of the minor child having to be handed over to the custody
   { of her paternal grandparents who had not even maintained any
      contact with the child.

           10. Mr. Shishodia urged that having regard to the               E
      provisions of Section 6 of the Hindu Minority and Guardianship
     Act, 1956, whereunder the mother is entitled to retain custody
     of the minor child under the age of 5 years, the High Court erred
     in directing the appellant to submit herself and her minor
 ,,, daughter, who were both Hindus, to the jurisdiction of a foreign      F
· court in terms of an interim order passed in proceedings taken
     before the said court for the purpose of deciding the question
     of custody. He also questioned the jurisdiction of the High Court
     to issue a writ in the nature of mandamus to a private individual
     to submit to the jurisdiction of a foreign court in a habeas          G
     corpus proceeding.

           11. Mr. Shishodia submitted that an almost similar
.Jo   question had been considered and decided by this Court in
      Sarita Sharma vs. Sushi/ Sharma (2003 (3) SCC 14], wherein
      it was held that even a decree passed by a foreign court could       H
    296 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A not override the consideration relating to the welfare of the                +-
  minor child. It was held that what was of paramount importance
  was the interest of the minor child, a principle which is
  universally recognized and accepted. It was submitted that in
  the aforesaid decision this Court had also observed that all the
B tecl"r!1icalities involving jurisdiction and Comity of Courts would
  have to give way to the issue involving the welfare of the minor.
  Everything else pales into significance in deciding the matter
  of custody of a minor child and especially a minor child below          ,.
  the age of 5 years.
c      12. Mr. Shishodia contended that the High Court had
  erroneously relied upon the judgment of this Court in Mrs.
  Surinder Kaur Sandhu vs. Harbax Singh Sandhu & Anr.
  [(1984)3 SCC 698) which was based on the principle of Comity
  of Courts, which had been taken note of in Sarita Sharrna's
D case (supra).
                                                                          -~
        13. A further submission was made to the effect that the                    ,
  High Court had erred in holding that although the custody of the
  minor child with the mother was not illegal at the inception, it
E became so after the directions given by the High Court of
  Justice, Family Division, U.K., on 26th November, 2008, to
  return the child to its jurisdiction within 14 days, failing which
  the appellant herein would be guilty of contempt of court and
  could also be sent to prison, fined or her assets could be seized.
F It was contended that the High Court ought not to have ousted
                                                                          ..
  its own jurisdiction as well as the jurisdiction of the Indian courts
  to decide the question of custody of the minor r:hild in
  accordance with the law of the land where the mil"'.:lr child is
  currently resident, particularly in the absence of any allegation
  of kidnapping or of bringing the minor into India in breach of
G
  any foreign decree or injunction. Yet another question which was
  raised was with regard to the psychological damage that could
  be caused on an impressionable mind which could ultimately                   "'
  destroy the mental orientation and moral fabric of a minor child.
H        14. Mr. Shishodia laid special stress. on the decision of
          SHILPA AGGARWAL v. AVIRAL MITTAL & ANR.                     297
                    [ALTAMAS KABIR, J.]
--+·    this Court in Sarita Sharma's case (supra), in which the              A
        question of custody of children in almost similar Circumstances
        came up for consideration. In the said case an American Court
        had put the children born out of the marriage in the care of the
        respondent-husband, but in exercising visitation rights, the
        appellant-wife picked up the children from her husband's              B
        residence and brought them to India despite the American
        Court's order. A writ petition for issuance of a writ in the nature
        of habeas corpus was filed by the husband in the Delhi High
  ... Court and having regard to the conduct of the appellant-mother,
      · the High Court directed her to hand over the custody of the           c
        children to her husband and permit him to take them to the
        U.S.A. The said order being challenged in the Supreme Court,
        this Court held that although the appellant's conduct of removing
        the children from the U.S.A. was a relevant fact, it could not
        override the various aspects relating to the welfare of the
                                                                              0
       children. This Court thereupon held that the High Court had
   ~ erred in restoring the custody of the children to the husband on
       the sole ground of breach of the order of the American Court
       and that the High Court should have directed the respondent-
        husbarid to initiate proceedings for holding a full-fledged inquiry
       as to what would be in the interest of the children having regard      E
       to the provisions of Section 6 of the Hindu Minority and
       Guardianship Act, 1956.

           15. Mr. Shishodia urged that even in the said case the
  "· question of lawful custody of the children cropped up. This Court        F
     observed that before she came to India with the children, the
     appellant-wife was in lawful custody of the children. The question
     which had to be answered was whether custody became illegal
     as she had committed breach of the order of the American
     Courts directing her not to remove the children from the                 G
     jurisdiction of that court without its permission. In the said case,
     in a decree of divorce an order of the custody of children had
 >   already been passed, and the same was a further
     consideration for deciding the question as to whether the
     custody of the children became illegal thereafter. Mr. Shishodia         H
    298 SUPREME COURT REPORTS (2009] 16 (ADDL.} S.C.R.

A pointed out that, as indicated hereinbefore, Surinder Kaur's
  case (supra) had been considered in Sarita Sharma's case
  (supra), where a distinction having been made on the ground
  of the welfare of the minor child being paramount, this Court
  held that the interest of the minor child would be best served in
B allowing    the mother to retain custody of the said children,
  notwithstanding the orders passed by the American Courts. The
  writ petition filed by the respondent-husband was, accordingly,
  dismissed by the Appeal Court on the basis of the                         ...
  circumstances relating to the welfare of the minor.
c        16. To further strengthen his submissions, Mr. Shishodia
    also referred to the decision of this Court in (i) Rajesh K. Gupta
    vs. Ram Gopa/ Agarwa/a & Ors. [(2005) 5 SCC 359]; and (ii)
    Dhanwanti Joshi vs. Madhav Unde [(1998) 1 SCC 112]. In
    Rajesh K. Gupta's case (supra) in relation to a matrimonial and
D   child custody dispute the husband, an Advocate-on-Record
    practising in the Supreme Court, filed a writ petition for a writ        '
    in the nature of habeas corpus for custody of his minor
    daughter. There also this Court held that in an application for a
    writ of habeas corpus for custody of a minor child the principal
E   consideration for the court would be to ascertain whether the
    custody of the child can be said to be lawful or illegal and
    whether the welfare of the child required that the child should
    be left in the care and custody of someone else. It was also
    noted that in case of disputes between the mother and father             >
F   regarding the custody of their child, the paramount
    consideration is the welfare of the child and not the legal right
    of either of the parties. Mr. Shishodia submitted that
    notwithstanding the allegations regarding the wife's mental
    condition, the court thought it fit to allow her to remain in custody
G   of the minor child.

         17. In the other decision in Dhanwanti Joshi's case (supra),
    the claim of the father for custody of the child on the ground of
    his having superior financial capacity to give his child immediate
    American education, was negated and it was held that having
H
             SHILPA AGGARWAL v. AVIRAL MITIAL & ANR.                   299
                       [ALTAMAS KABIR, J.]
-I·
         superior financial capacity cannot be the sole consideration for      A
         change of custody from mother to father. This Court held that
         while the child in his mother's custody was getting good
         education and doing well in studies, the proposal of an
         immediate American education, which the father was prepared
         to finance, could not be a sufficient ground for shifting the child   B
         to the father's custody. It was also observed that the child, who
         was a citizen of U.S.A. by birth, could go to U.S.A. in his own
  ),..
         right in future, whenever it was so decided.

              18. Mr. Shishodia submitted that the reasoning of the High
         Court based solely on the doctrine of the Comity of Courts,
                                                                               c
         without giving proper importance to the welfare of the minor,
         could not be sustained and was required to be set aside.

               19. On the other hand, Mr. Debal Banerjee, learned Senior
         Advocate, appearing for the Respondent No.1, contended that           D
  {
         th~ decision of the High Court to apply the principle of the
         Comity of Courts was wholly justified, inasmuch as, there was
         an existence of an order, even if interim in nature, directing the
         appellant within a period of 14 days to voluntarily take the child
         to England and to join the proceedings before the Court of            E
         England and Wales, failing which the child was to be handed
         over to the respondent to be taken to England as a measure
         of interim custody, and, thereafter, it would be for the Courts of
 .<..    England and Wales to determine which of the parents would
         be best suited to the custody of the child.                           F
              20. Mr. Banerjee submitted that although in Sarita
         Shanna's case (supra) the decision in Surinder Kaur's case
         was noticed and a passage from the said judgment was also
         extracted, in the ultimate analysis the Court felt that the minor
         children should be handed over to the mother as it would be in        G
         the best interest of the children to be with the mother since they
         too expressed the desire to stay with her.. Mr. Banerjee
         submitted that in the said case also the Court had to resort to
         a chance that the dispute would ultimately be settled and, on
                                                                               H
    300 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A such consideration, the writ petition filed by the respondent-
  husband was dismissed.

        21. Reliance was also placed on the oft-repeated decision
  of this Court in the case of Mrs. Elizabeth Dinshaw vs. Arvand
B M. Dinshaw & Anr. [(1987) 1 SCC 42]. The facts of the said
  case have a good deal of similarity with the facts of the instance
  case, where also, in view of the father secretly bringing the child
  to India against the express orders of the American Court, the
  mother filed a habeas corpus petition before the Supreme                -'
c Court  for restoration of the child's custody. In the background
  of the said facts, this Court held that the mother was entitled to
  the child's custody, with liberty to take the child to the U.S.A.
  and the father could pursue the matter before the U.S. Court
  for restoration of the visitation rights which had earlier been
  granted in his favour.
D
       22. Mr. Banerjee contended that when there was an
                                                                          )
  existing order of a foreign court, the prayer for deciding the
  matter for the same relief ought not to be granted. The learned
  counsel submitted that there was no ground whatsoever, for this
E Court to interfere with the order of the High Court which had
  been passed in the interest of the minor girl child.

       23. From the materials disclosed in this case, we find
  ourselves placed between two contrasting principles of law
  which we are required to balance keeping in mind the interests          ;
F of a minor 3Yz year old girl child .. Of the two principles, the High
  Court has placed greater reliance upon the theory of Comity
  of Nations and Comity of Judgments of the Courts of two
  different countries in deciding the matter. Having held that the
  High Court of Justice, Family Division, U.K., was already in
G seisin of the matter and had passed an interim order of restraint
  and having further regard to the fact that the interests of a 3Yz
  year old minor girl child was involved, the Delhi High Court
  directed that the custody of the child be made over to the father
  in England and in the alternative to the grand-parents in India
H who would return the child to the jurisdiction of the U.K. Courts.
                  SHILPA AGGARWAL v. AVIRAL MITIAL & ANR                    301
                            [ALTAMAS KABIR, J.]
              Even while considering the interests of the minor child, the High A
              Court felt that due respect had to be given to the orders of the
              U.K. Court as the U.K. Court was closest to the issue involving
              the custody of the minor child who was a British citizen .
...                24. There is yet another aspect of the matter on which the
                                                                               B
              High Court has stressed. The High Court has noticed the fact
              that both the appellant wife and the respondent husband had
              set up their matrimonial home in Scotland and thereafter in
              England since 2003. Both the parents had been working for
              gain in the U.K. and while the minor child was holding a British
              Passport, the parents had acquired permanent resident status c
              in the U.K.

                    25. It is not as if the High Court was oblivious of the fact
               that it was the paramount duty of the Court to look after the
               interests of the minor child. It has referred to the celebrated      D
       i       decision of this Court in Elizabeth Dinshaw's case (supra),
               wherein it was emphasized that in matters of custody of minor
               children, the sole and predominant criterion is the interest and
               welfare of the minor. Further, while relying upon the judgment
               in Sarita Sharma's case (supra), the High Court did consider         E
               the decision in Surinder Kaur's case (supra), where the facts
               were very similar. Yet, the High Court, relying on the decision
               of this Court in Sarita Sharma's case (supra} came to the
               conclusion that the Courts in this country cannot be guided
      ,;._.
              entirely by the fact that one of the parents had violated the order   F
              passed by a competent foreign Court. Choosing to rely on the
              doctrine of Comity of Courts, the High _Court directed the
              appellant to return the minor child to the jurisdiction of the U.K.
              Court as the said Court was closest to the issue involving the
              custody of the child and would thoroughly examine the claim of
                                                                                    G
              the appellant and the Respondent No.1 to be entrusted with the
              custody of the child.

                   26. Although, Mr. Shishodia relied heavily on the decision
              in Surinder Kaur's case, it cannot be ignored that the said case
              has duly considered the principle that the interest of the minor H
    302    SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A is paramount in any decision relating to custody. It is but natural
  that in a matrimonial tussle both the parents would want the
  custody of the minor child. In this tussle, we have to decide who
  would be more suited to have custody of the child. In our view,
  the High Court appears to have taken the correct approach in
B a matter like this. Although, on first impression, it would appear
  that the interests of the minor child would best be served if she
  is allowed to remain with the appellant, we cannot lose sight of        .-4
  the order dated 26th November, 2008, passed by the High
  Court of Justice, Family Division, U.K., which admittedly is an
c ~x-parte order and, inter alia, reads as follows :-
          "IT IS ORDERED THAT:-

           1.   The minor, Elina Mittal (date of birth 20th February,
                2006), shall remain a ward of court during her
D               minority or until further order,                          )

          2.    The Defendant mother, Shilpa Agarwal, do within
                14 days of service of this order upon her cause the
                said minor to be returned to the jurisdiction of
                England and Wales,
E
           3.   Following the return of the said minor to England
                and Wales, the Defendant mother shall thereafter
                be forbidden (whether by herself or by instructing
                                                                          >
                or encouraging any other person) from causing or
F               permitting the minor to be removed from the
                jurisdiction of England and Wales without the
                permission of a High Court judge.

           4.   Within 72 hours of the return of the said minor to
G
                England and Wales, the Defendant mother must
                deliver up to the Plaintiff father's solicitors, Messrs
                Lyons Davidson of Victoria House, 51 Victoria
                Street, Bristol BS1 6AD all passports and
                international travel documents for the child on the
                basis that those documents will be held by that firm
H
        SHILPA AGGARWAL v. AVIRAL MITIAL & ANR.                 303
                  "[ALTAMAS KABIR, ·J.)
~
               to the order of the court and will not be released to    A
               either party without the permission of a High Court
               Judge;

          5.   Within 72 hours of the return of the said minor to
               England and Wales, the Defendant mother must
                                                                        B
               provide the Plaintiff father's solicitors, Messrs
               Lyons Davidson of Victoria House, 51 Victoria
)..            Street, Bristol BS1 6AD with full details in writing
               of any address at which she intends to reside with
               the child and a contact telephone number for herself;
               she must also provide to the father's solicitors in
                                                                        c
               writing full details of any new address to which she
               intends to move with the child prior to such move
               taking place.

         6.    There be liberty to the Defendant mother to apply        D
    l
               to vary or discharge any provision of this order
               upon giving 24 hours' notice to the Plaintiff father's
               solicitors, Messrs Lyons Davidson of Victoria
               House, 51 Victoria Street, Bristol BS1 6AD (of
               PMM/CLP; telephone number 01179046000); any              E
               such application shall be supported by a sworn
               affidavit. .

         7.    The application shall be adjourned and listed at risk
               for further directions before a High Court Judge
                                                                     F
               sitting at the Royal Courts of Justice, Strand.
               London at 10.30 am on 15 December 2009 (time
               estimate Yi hour).

         8.    The costs of this application be reserved:
                                                                        G
        AND NOW THEREFORE this Court respectfully invites all
        judicial and administrative bodies in the Republic of India
        to render assistance in ensuring that the minor Elina Mittal
        is returned as soon as possihle to the jurisdiction of
        England and Wales."
                                                                        H
    304 SUPREME COURT REPORTS (2009] 16 (ADDL.} S.C.R.


A       27. It is evident from the aforesaid order that except for            ,..
  insisting that the minor be returned to its jurisdiction, the English
  Court did not intend to separate the child from the appellant until
  a final decision was taken with regard to the custody of the child.
  The ultimate decision in that regard has to be left to the English
B Courts having regard to the nationality of the child and the fact
  that both the parents had worked for gain in the U.K. and had
  also acquired permanent resident status in the U.K. The High
  Court has taken note of the fact that the English Court has not
                                                                          -~
  directed that the custody of the child should be handed over to
c the respondent father but that the child should be returned to
  the jurisdiction of the Courts in the U.K. which would then
  proceed to determine as to who would be best suited to have
  the custody of the child. In our view, the approach of the High
  Court takes into consideration both the questions relating to the
  Comity of Courts as well as the interest of the minor child,
D
  which, no doubt, is one of the most important considerations
  in matters relating to custody of a minor child. It has been rightly    i
  observed by the High Court following the decision in Surinder
  Kaur's case (supra) that it was the English Courts which had
  the most intimate contact with the issue in question to decide
E the same.

       28. The fact that the minor child has been declared a ward
  of the English Court till she attains majority, is also a matter of
  considerable importance in considering whether the impugned
F order of the High Court should be interfered with or not.

       29. We are satisfied from the materials produced before
  us and the submissions made on behalf of the parties that the
  High Court did not commit any error in relying on the doctrine
  of Comity of Courts since the question of what is in the interest
G
  of the minor still has to be considered by the U.K. Court and
  the interim order passed in the proceedings initiated by the
  Respondent No.1 is only of an interim nature with a view to
  return the child to the jurisdiction of the said Court.
H        30. We, therefore, see no reason to interfere with the order
        SHILPA AGGARWAL v. AVIRAL MITTAL & ANR.                   305
                  [ALTAMAS KABIR, J.]
     of the High Court and the appeal is, accordingly, dismissed. A
     However, in order to implement the directions of the High Court,
     the Respondent husband shall provide the initial expenses of
     the appellant and the minor child for travelling to and staying at
     the U. K. for at least a month to attend and contest the
     proceedings initiated by the Respondent No.1 before the High s
     Court of Justice, Family Division, U.K.

;.        31. Let this matter be listed for further orders on 15th
     December, 2009, to enable the respondent-husband to submit
     a proposal as to how the travel arrangements and the
     arrangements for the appellant and her minor daughter to stay       C
     in the U.K., at least for a month, is to be made. Till then the
     interim order passed in the appeal shall continue to be
     operative.

           32. There will be no order as to costs.                       D
     RP.                                             Matter adjourned.